Complainant

Respondent

Parties

LendRB Limited

Enterprise Ireland

Representatives

  Self.

Christina Moran A&L Goodbody. Niamh McGowan BL

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00055017-001

13/02/2023

The Complainant, a limited Company alleges that it was discriminated against by the Respondent in relation to alleged discriminatory during an application for funding.

The Complainant came on screen and immediately read out a statement which stated as follows: “I have provided a medical cert that states I rest for fifteen days. I will not be participating today and I am looking for a postponement. Could all future correspondence etc be made to LendRB as I stated meant and assumed initially”. The Complainant refused to engage in the hearing opting to read out his prepared statement whenever asked a question. He read it out three or four times. Then following an application by the Respondent to have the matter struck out for want of prosecution and when given one last chance to make an application for a postponement Mr. Keenan reluctantly decided to partially engage.

The Complainant stated that he was in a motorbike accident “five or eight days ago”, had been in hospital and was on heavy medication. The medical certificate states that he should “rest for fifteen days”. He stated that due to a language barrier the certificate does not go further and does not state he was unfit to participate in today’s hearing or that he was unfit for work.  Additionally, he stated that the case was brought in the name of LendRB and he referred to the fact that Mr. Keenan’s name appeared on the matter listed today. He stated on that basis that “only Mr. Keenan can represent LendRB”.

He submitted his medical certificate to the WRC along with his postponement application last Thursday (29th June). That application was refused by the WRC. During the postponement application today, Mr Keenan stated “this is putting me under severe stress now. This is becoming a real issue because I have medical certificate that says rest for fifteen days, what am I even doing here. I put in a postponement. Why am I here?” Mr. Keenan read out his prepared statement again. He was given two medical certificates by the hospital Bangkok. One states that he should rest for fifteen days and the other is blank in that section. Mr. Keenan said that he is still in Bangkok seeking funding for LendRB. Mr. Keenan refused to state what medication he was on, replying when asked “that it none of your business, it is literally none of your business. Who do you think you are asking me that question, I am serious, I am 100% serious”. Mr. Keenan was asked to elaborate on his injuries as the medical certificate simply states that he has a laceration wound to the right knee and multiple abrasions to the arms, legs and foot. He responded by stating that he had sent in a picture of himself in hospital.

When informed that the preliminary matter only would be heard today and if necessary the substantive matter would be listed on another day. He stated “that is a disgraceful decision. I have to rest for fifteen days’ and it shouldn’t be Mark Keenan, it should be LendRB and I shouldn’t be here on my own”. When informed that the matter could proceed with LendRB being the Complainant he stated “No No, you can’t do that now. You have to reissue a form to LendRB. There is more than me involved” The Respondent thanked Mr Keenan for clarifying that the Complainant was LendRB as that was always the Respondent’s belief.

Mr. Keenan left the hearing and did not return.  

The Respondent accepts that LendRB is the proper Complainant in this matter and that has always been the understanding of the Respondent. The Respondent, due to the confusion, has also addressed the case in the alternative i.e. Mark Keenan as the Complainant.  LendRB is named on the form and Mr. Keenan was named as the contact person for LendRB. Mr. Keenan suggested that the form should be re-issued. That is a matter for the WRC but as far as the Respondent is concerned and it would seem Mr. Keenan too, LendRB was always the Complainant.

Preliminary Application:

Firstly - The Complainant is a limited liability Company. The Equal Status Act defines a “person” as “ that term is used in or in relation to any provision of this act that prohibits that person from discriminating or from committing any other act or that requires a person to comply with a provision of this Act or Regulation made under it, includes an organisation, public body or other entity”.

Pursuant to Section 3 Discrimination shall be taken to occur “where a person is treated less favourably than another person”.

It is clear from the definition of a “person” that it refers only to respondents to proceedings. It is submitted that it is not possible for a limited liability company to possess any of the characteristics or meet with any of the criteria set out in the discriminatory grounds at Section 3(2). The Respondent relies on the cases of Gloria (Ireland’s Lesbian and Gay Choir) v Cork International Choral Festival Limited DEC-S2008-78, Cork Deaf Club v Office of Public Works DEC-S2017-039, A Health Worker v A Health Service Provider ADJ 00005333 and Yuriy Tykhovod t/a Prospera Limited v FBD Insurance plc ADJ 00031425.

Secondly- Without prejudice to the foregoing, If Mr. Mark Keenan was the Complainant, the Respondent makes the following submissions.

The WRC complaint form submitted by Mr. Mark Keenan, in the name of the Complainant company, was a form seeking adjudication by the Workplace Relations Commission under Section 77 of the Employment Equality Act, 1998. In circumstances where Mr. Mark Keenan or the Complainant company was/were never an employee of the Respondent, it is submitted that the complaint is misconceived.

There is no basis on which it can be suggested that the Equal Status Act claim was brought by Mr. Mark Keenan as an individual, as all of the communication and correspondence, and indeed access to the provision of the service by the Respondent, was in the name of the Complainant company. Insofar as Mr. Keenan purports to have made an Equal Status Act complaint in his own name, same is not relevant as Mr. Keenan was never a person who sought the services of the Respondent in a personal capacity and engaged solely as a director and co-founder of the Complainant company.

 It is submitted that neither the Complainant company nor Mr. Mark Keenan have locus standi to pursue a complaint of discrimination pursuant to the Equal Status Acts (or in the alternative pursuant to the Employment Equality Acts).

Thirdly – The complaint is statute barred. The complaint was lodged on the 13.02.2023. The cognisable period for consideration of the complaint is from 14 August 2022 to 13 February 2023. Section 21 (2) ( a) provides that:-Before seeking redress under this Section the complainant –

(a)    Shall, within two months after the prohibited conduct is alleged to have occurred, or, where more than one incident or prohibited conduct is alleged to have occurred, within two months after the last such occurrence, notify the respondent in writing of-

(i)                  The nature of the allegation,

(ii)                The complainant’s intention, if not satisfied with the respondent’s response to the allegations and

(iii)               May in that notification, with a view to assisting the complainant in deciding whether to refer the case to the Director of the Workplace Relations Commission or, as the case may be, the Circuit Court, question the respondent in writing so as to obtain material information and the respondent may if the respondent so wishes, reply to any such question.

The Complainant was informed that the application to the CSF was unsuccessful on the 13.05.2022. The Complainant did not notify the Respondent in writing of the nature of the allegation until the 20.12 2022, more than seven months later. S21 (3) (a) does provide for an extension of the two months by a further two months if the complainant can show reasonable cause as to why the notification could not be made within the two months period. The period of time taken by the Complainant to notify the respondent exceeds even the extended period of time. It is therefore submitted that the matter is statute barred.

Furthermore, it is submitted that the Complainant, in respect of its claim for gender based ( and geographic) discrimination is in breach of Section 21(6) of the Act, which provides that a claim for redress in respect of prohibited conduct may not be referred after the end of the period of six months from the date of the occurrence of the prohibited conduct to which the case relates, or as the case my be the date of its most recent occurrence. The allegations of discrimination related to the decision made on the 12.04.2022 and communicated to the complainant on 13.05.2022 as a such is statute barred by virtue of both Section 21(2) and S21(6) of the Equal Status Acts.  

Mr. Keenan from the outset refused to engage in the hearing process and when asked a question replied by reading out a prepared statement that stated “I have provided a medical cert that states I rest for fifteen days. I will not be participating today and I a looking for a postponement. Could all future correspondence etc be made to LenderB as stated meant and assumed initially”. He read the statement out three or four times refusing to say anything other than what was in the statement.

I note from the case file that Mr. Keenan made an application to the WRC for a postponement to the WRC on the 29th June. That application was refused but he was informed that he could make an application, to me, for a postponement on the day of the hearing. I urged him on numerous occasions to make a further application for a postponement, but he refused, instead opting to read out his statement. It wasn’t until Ms. McGowan BL made an application to have the proceedings struck out for want of prosecution that Mr. Keenan decided to engage, partially, by way of renewing his application for a postponment.

In that regard, he outlined that he was in a motorbike accident approximately “5 or 8 days ago”. He submitted two medical certificates both dated the 28 June 2023. One signed by Dr. Amornchat Sujiratana and the other by Dr. Chawanvuth Termtanum. Only Dr. Termtanum’s certificate stated that Mr. Keenan should rest for 15 days. That section is left blank on Dr. Sujiratana’s certificate. I note that the accident occurred on the 28th June, ten days prior to the hearing. The Certificates state that Mr. Keenan sustained a “lacerated wound to right knee, with multiple abrasion wound at both arms, right leg and foot”. Mr. Keenan was not admitted to hospital.The medical certificate states that he was given medication. I do not know what that was and Mr. Keenan refused to tell me stating “that is none of your business, who do you think you are asking me that question, I am serious”.

Having heard his submission, Mr. Keenan was told that I was inclined to hear the preliminary application only and we could deal with the substantive matter, if necessary, on another day. He said in a raised voice “that is a disgraceful decision”. He then shouted “it shouldn’t be Mark Keenan against Enterprise Ireland at all, it should be LenderB. It shouldn’t be Mark Keenan, I shouldn’t be here” Mr. Keenan was asked if he was certain about that and he said he was. He again objected to the matter proceeding stating that there were others who should be on the remote hearing, and they were not.

The Respondent then consented to LendRB being the Complainant. The original complaint form did lead to some confusion as to who the Complainant was. Mr. Keenan named both himself and LendRB as the complainant. It is clear however from the voluminous correspondence on the file that it was always intended that LendRB be the Complainant. I informed Mr. Keenan that as the Respondent was consenting to the LendRB being the Complainant and I was not satisfied that he was unfit to proceed, we would proceed on that basis. It was explained to Mr. Keenan that when assessing whether a postponement should be granted an Adjudication officer had to not only assess his situation and supporting documentation, but also had to balance that against the inconvenience and expense the Respondent would be put to if the application was granted. Based on the Mr. Keenan’s medical certificates, that did not state he was “unfit for work” but merely that he should “rest”, together with his refusal to disclose if he was prescribed any medication/s that might render it difficult to proceed with the preliminary hearing and his obstinate and obstructive approach to both me as adjudicator and to Respondent, I decided to hear the preliminary application only.

Mr. Keenan then left the hearing and did not return. I proceeded to hear the preliminary application, of which Mr. Keenan the CFO shareholder and representative of LendRB limited was on notice.  I will deal with the preliminary application below. Before I do however it is worth noting that both before and after the hearing, Mr Keenan bombarded the WRC and me as Adjudicator with emails that could only be described as disrespectful, offensive and completely inappropriate. A request was made by the WRC to desist but that request was ignored. In the interest of fairness and transparency I state that nothing that was sent to me, or the WRC post hearing has been taken into consideration when making my decision on the preliminary application in this matter.

Preliminary Application.

The Complainant is a Limited Liability Company. The Complaint was actually brought under the Employment Equality Act however it was everyone’s understanding that the compliant was actually under the Equal Status Act. Section 3(1) of the Equal Status Act provides that:-

Discrimination shall be taken to have occurred:-

(a)    Where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in sub- section (2) or, if appropriate, subsection (3B) ( in this act referred to as “discrimination grounds”) which –

(i)                  exist

(ii)                existed but no longer exists,

(iii)               may exit in the future, or

(iv)               is imputed to the person concerned,

(b)    Where a person who is associated with another person –

(i)                  is treated, by virtue of that association, less favourably than a person who is not so           associated is, has been or would be treated in a comparable situation, and

(ii)                similar treatment of that person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination, or

(c)     Where an apparently neutral provision would put a person referred to in any paragraph of Section 3(2) at a particular disadvantage compared with other persons, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary”

S3(2) As between any two persons, the discriminatory grounds (and the description of those grounds for the purposes of this Act) are:-

(a) that one is male and the other is female (the “gender ground”),

(b) that they are of different marital status (the “marital status ground”),

(c) that one has family status and the other does not or that one has a different family status from the other (the “family status ground”),

(d) that they are of different sexual orientation (the “sexual orientation ground”),

(e) that one has a different religious belief from the other, or that one has a religious belief and the other has not (the “religion ground”),

(f) subject to subsection (3), that they are of different ages (the “age ground”),

(g) that one is a person with a disability and the other either is not or is a person with a different disability (the “disability ground”),

(h) that they are of different race, colour, nationality or ethnic or national origins (the “ground of race”),

(i) that one is a member of the Traveller community and the other is not (the “Traveller community ground”),

(j) that one—

(i) has in good faith applied for any determination or redress provided for in Part II or III,

(ii) has attended as a witness before the Authority, the Director or a court in connection with any inquiry or proceedings under this Act,

(iii) has given evidence in any criminal proceedings under this Act,

(iv) has opposed by lawful means an act which is unlawful under this Act, or

(v) has given notice of an intention to take any of the actions specified in subparagraphs (i) to (iv),

      and the other has not (the “victimisation ground”).

Mr. Keenan, the CFO and representative of the Respondent made it very clear that it is the LendRB, a limited company, that is the correct Complainant in this matter. The Respondent agreed with Mr. Keenan and as is evident from the correspondence prior to the hearing, the Respondent considered the limited company to be the Complainant. The Equal Status notification to the Respondent was made in the name of LendRB Limited. Furthermore, the WRC complaint form also has the name LendRB inserted into the “if the complainant is a company or representative body” section. I also note from the submissions that the application for funding was made to the Respondent by LendRB Limited. That being the case, the issue to be determined is whether or not a limited company can be discriminated against within the meaning of the Act.

In Gloria (Ireland’s lesbian and Gay Choir) V Cork International Choral Festival Limited DEC-S2018-78 the Adjudication officer decided the Equal Status Act should be interpreted as limiting complainants to individuals”

Again in A Health Worker v A health Service Provider ADJ 5333 the Adjudication Officer found that “ the complainant “ did not have locus standi to make a complaint under the Equal Status Act”

It is well established law in this jurisdiction that corporate entities, such as the Complainant, do not have locus standi to bring cases under the Equal Status Act. I therefore find that I do not have jurisdiction to investigate the complaint before me today.

Secondly, I note from the complaint form that the complaint is made pursuant to the Employment Equality Act. I can only assume this is an error as LendRB notified Enterprise Ireland of its intention to bring a complaint under the Equal Status Acts 2000 to 2015 by email dated 20 December 2022 and Mr. Keenan has never been an employee of the Respondent. Either way the matter is misconceived, and I do not have jurisdiction to investigate the complaint.

Thirdly, the complaint was filed with the WRC on the 13.02.2023. Notification of the unsuccessful application was sent by the Respondent on the 13.05.2022, Seven months later .

Section 21 (2) (a) provides that:-Before seeking redress under this Section the complainant –

(a)         Shall, within two months after the prohibited conduct is alleged to have occurred, or, where           more than one incident or prohibited conduct is alleged to have occurred, within two months after the last such occurrence, notify the respondent in writing of-

(i)           The nature of the allegation,

(ii)         The complainant’s intention, if not satisfied with the respondent’s response to the allegations and

(iii)        May in that notification, with a view to assisting the complainant in deciding whether to refer the case to the Director of the Workplace Relations Commission or, as the case may be, the Circuit Court, question the respondent in writing so as to obtain material information and the respondent may if the respondent so wishes, reply to any such question.

The Complainant was informed that the application to the CSF was unsuccessful on the 13.05.2022. The Complainant did not notify the Respondent in writing of the nature of the allegation until the 20.12.2022. That was more than seven months later. The act at Section 21(2)(a) uses the word “Shall” meaning that the requirement is a mandatory one. However, S21(3)(a) does provide for an extension of the two months, by a further two months if the complainant can show reasonable cause as to why the notification could not be made within the two months period. No application was made in that regard. Even if it was, the period of time taken by the Complainant to notify the respondent exceeds even the extended period of time. 

In addition the Respondent submitted that the Complainant, in respect of its claim for gender based (and geographic) discrimination is in breach of Section 21(6) of the Act, which provides that a claim for redress in respect of prohibited conduct may not be referred after the end of the period of six months from the date of the occurrence of the prohibited conduct to which the case relates, or as the case may be the date of its most recent occurrence. The allegations of discrimination related to the decision made on the 12.04.2022 and communicated to the complainant on 13.05.2022 as a such is statute barred by virtue of both Section 21(2) and S21(6) of the Equal Status Acts.  The Complainant’s representative did not make any submissions on the point, nor did he make and application pursuant to S21 (7)(a) for an extension of time. I agree with the Respondent’s submissions and in all of the circumstances I find that the matter is statute barred.

For the reasons set out above I find that I do not have jurisdiction to investigate the within complaint.                          

The complaint fails.

Equal Status Act. Employment Equality Act. Jurisdiction. Statue Barred. Postponement. Locus Standi.