ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00045957

Parties:

	Complainant	Respondent
Parties	Peter Byrne	R.T.B Tribunal Section

	Complainant	Respondent
Anonymised Parties

Representatives

Sheila Spokes Solr. Byrne Wallace LLP

Complaint:

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000	CA-00055430-001	01/03/2023

Date of Adjudication Hearing: 12/04/2024

Workplace Relations Commission Adjudication Officer: Penelope McGrath

Procedure:

In accordance with Section 21 of the Equal Status Act 2000 (as amended) an individual may seek redress in respect of any prohibited conduct that has been directed against him or her by referring a case to the Workplace Relations Commission. It is a condition precedent to bringing any such matter before the Workplace Relations Commission that the individual complainant shall have already notified the Respondent in writing (Form ES 1) of the nature of the allegation and the intention to seek such redress if not satisfied with the Respondent’s response. This Notice in writing shall be brought within two months of the said prohibited conduct or the last instance of same.

A Respondent may choose to reply with an explanation for the treatment by returning the attached ES 2 Form.

Pursuant to Section 25 of the Equal Status Act 2000 I have had the within matter referred to me by the Director General for the purpose of conducting an investigation into claims of discrimination. I was available to hear the interested parties and have consider any relevant documentation provided in advance of the hearing and in the course of the hearing. At the conclusion of any such investigation I am obliged to make a decision and, if I should find in favour of the Complainant, I can provide for redress (s.25 (4)).

Generally, discrimination under this Act – per Section 3 - is taken to have occurred where a person is treated less favourably than another person is (or would be) treated in a comparable situation and by reason of any of the discriminatory grounds (as specified).

Broadly, the Equal Status Act prohibits discrimination in the context of buying and selling goods from and to the public (or a section thereof) and also in the context of using and providing services available to the public (or a section thereof). The service is not necessarily being provided for consideration. (See Section 5 of the ESA).

In relation to the applicable burden of proof, Section 38A of the Acts is applicable to all complaints of discrimination under the Equal Status Acts and requires the Complainant to establish, in the first instance, facts from which a discrimination can be inferred. It is only when such a prima facie case has been established that the onus shifts to the Respondent to rebut the inference of discrimination. This principle is clearly enunciated in the equivalent provision in the Employment Equality Act under discussion in the case of Melbury Developments Limited -v- Valpeters [2010] 21 ELR 64 :

“Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination must be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and language of this provision admits no exception to that evidential rule.”

Under Section 27(1) of the Act, redress may be ordered where there has been a finding in favour of the Complainant. The Act allows for an Order for compensation (up to a maximum amount) for the effects of the prohibited conduct. The Adjudication Officer can direct that a person or persons take a specified course of action. The AO can also order that the service provider has to do something aimed at ensuring that similar discrimination does not happen again. For example, to take a specific course of action to upskill and train up staff. The maximum amount of compensation which can be awarded under the Equal Status Act is €15,000.00 (which is in line with the maximum award available in District Court contract cases per Section 27(2). In assessing compensation, I can consider the effect that the discriminatory treatment has had on the Complainant.

Background:

This hearing was to be conducted in person in the Workplace Relations Commission situate in Lansdowne Road, Dublin. In line with the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021] IESC 24 (delivered on the 6th of April 2021) the hearing was to be conducted in recognition of the fact that the proceedings constitute the administration of Justice. It was therefore open to members of the public to attend this hearing.

Had evidence been given it would have been in compliance with the Workplace Relations (Miscellaneous Provisions) Act, 2021 which came intoeffecton the 29th of July 2021, and which said legislation accommodates situations where there is the potential for a serious and direct conflict in the evidence between the parties to a complaint. In such circumstances, an oath or an affirmation may be required to be administered to any person giving evidence before me. It is noted that the giving of false statements or evidence is an offence.

The Complaint herein was brought to the attention of the WRC on the 1st of March 2023 by way of a workplace relations complaint form.

Summary of Complainant’s Case:

The Complainant did not attend. I am satisfied that the Complainant was notified of the date, time and venue for this hearing by a letter sent from the WRC - dated the 21st of February 2024 - and sent to the address provided by the Complainant on the workplace relations complaint form. I further note that the Complainant had acknowledged the fact that a date had been set for the hearing of this matter when he emailed the WRC on the 3rd of April 2024. The said email was replied to on the 4th of April 2024.

From the Complaint form provided, I have discerned that the Complainant seeks to establish that he was discriminated against. According to the complaint form dated 20 February 2023 and lodged by the Complainant with the WRC on 1 March 2023, the Complainant alleges that he was discriminated by the Respondent on disability grounds contrary to the Equal Status Act 2000. In summary, the Complainant asserts that the Respondent’s decision to refuse the Complainant’s application to adjourn the proceedings scheduled on 7 December 2021 and then to go on and grant the adjournment application of the housing body, North East Housing Association, pursuant to section 107 of the Act of 2004, constituted discrimination on the grounds of disability.

I understand that the Respondent intended defending the within complaint.

Summary of Respondent’s Case:

The Respondent had full legal representation at this hearing. The Respondent entity was to be represented in the person of Nicola Grant working in the legal affairs Department of the RTB. The Respondent provided me with a written submissions dated the 16th of February 2024 though it is noted that the submission is presented under the heading:

“Application for the Dismissal of this complaint further to Section 22 of the Act of 2000“

The Respondent rejects that there has been a Discrimination on the grounds alleged. More importantly the Respondent seeks a dismissal of the complaint.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

Findings and Conclusions:

The Complainant did not attend and therefore did not exercise his right to prosecute his claim against the Respondent entity. I can therefore make no finding in favour of the Complainant.

I note that the Respondent has made a comprehensive submission asserting the following:

That the RTB Tribunal (meaning the Tenancy Tribunal) exercises quasi-judicial functions under the Residential Tenancies Act 2004 (as amended) and the RTB Tribunal is applying for the dismissal of this complaint pursuant to section 22 of the Equal Status Act of 2000.

It is noted that Section 22 of the Act of 2000, “dismissal of claims”, provides as follows -

“(1) The Director of the Workplace Relations Commission may dismiss a claim at any stage if of opinion that it has been made in bad faith or is frivolous, vexatious or misconceived or relates to a trivial matter.”

The Respondent makes this application on the certain grounds. Each ground is separate and alternative and is presented without prejudice to each of the other grounds.

(a) In carrying out its decision-making function in relation to complaints submitted to it under Chapter 6 of the Act of 2004, the Respondent is not providing a “service” within the meaning of the Act of 2000. It is the exercise of these functions that the Complainant seeks to impugn in this complaint.

(b) The Respondent enjoys judicial immunity in exercising the quasi-judicial functions in the public interest that the Complainant seeks to impugn in this complaint.

(c) Section 14(1) of the Act of 2000 applies to the Respondent in making its determinations on disputes, including adjournments of hearings pursuant to section 107 of the Act of 2004. The effect of section 14(1) is to exclude the actions of the Respondent (impugned by the Complainant in this complaint) from the scope of actions prohibited by the Act of 2000.

The Respondent has invited me to consider the Judgement of Judge Ní Chúlacháin in the Circuit Court in Emma Barry v Dr Leena Naughton, Highfield Healthcare and the Medical Council [2023] IECC 8 wherein these exact issues were considered.

On the face of it and in the absence of hearing the Complainant’s case there seems merit in the Respondent’s argument.

It also seems that procedural issues such as the failure send an ES 1 form and /or the fact that the claim has potentially been brought outside the allowable time limits might also have been fatal to the Complainant’s claim.

Decision:

Section 25 of the Equal Status Acts, 2000 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act.

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00055430-001 - The Complainant did not attend and did not establish that the Respondent engaged in prohibited conduct. The complaint fails.

Dated: 23rd April, 2024

Workplace Relations Commission Adjudication Officer: Penelope McGrath

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