Complainant

Respondent

Parties

Mary Jane  Juhasz

Complainant

Respondent

Anonymised Parties

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An Employee

Representatives

  Self-Represented

Neil Flynn B.L. instructed by Karl Howe of Clark Hill LLP

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00057186-001

03/07/2023

The Complainant is alleging that she was discriminated against on the ground of membership of the traveller community. The Respondent denies that they had discriminated against the Complainant whether on the ground of membership of the traveller community or at all.  A preliminary issue arose in the course of my investigation, namely whether the Complainant had named the correct Respondent.

The Complainant stated that she believed that she had the correct name on the Form ES1, that the Respondent cited was the correctly named Respondent, that her complaint was against the Respondent cited and that she did not have an application to make to amend the name of the Respondent. She stated that she attended a hotel where the Respondent was employed with her son and now husband to enquire about booking a wedding, she met with the Respondent on the day in question and thereafter engaged in email communication with the Respondent and that at all material times she dealt with the Respondent and that it was the Respondent who subjected the Complainant to discriminatory treatment.

It was submitted on behalf of the Respondent that they were the incorrect Respondent. The Group General Manager of the Respondent’s employer volunteered the name of the legal entity which employed the Respondent and stated that at all material times the Respondent was acting in the course of her employment with that legal entity. The Respondent’s representative consented to the amendment of the name of the Respondent but noted that the Complainant was not seeking to amend the name of the Respondent. The Respondent’s representative submitted that in the absence of an application by the Complainant to amend the name of the Respondent the Adjudication Officer did not have jurisdiction to do so. The Respondent’s representative referred to the Equal Status Act 2000 (as amended) and submitted that the Respondent was not a service provider and that at all material times she was acting in the course of her employment and with the authority and consent of her employer.

The Law:

Preliminary Decisions:

In Brothers of Charity (Roscommon) Ltd. v. Marian Keigher EDA1014, the Labour Court considered the determination of an issue by way of preliminary decision. The Labour Court referred to the judgments of Kenny J. in Tara Explorations and Development Co. Ltd v. Minister for Industry and Commerce [1975] IR 242 and Hardiman J. in B.T.F. v. Director of Public Prosecutions [2005] 2 I.L.R.M. 367. In the latter case Hardiman J, found:

"It is often a difficult and delicate decision as to whether to try a particular issue as a preliminary matter. In a case where a point is raised which in and of itself and without regard to anything else may terminate the whole proceedings, clearly a strong case can be made for its trial as a preliminary issue.

In Donegal Meat Processors v. Donal Gillespie t/a Foyle Donegal, UDD2114, the Labour Court noted that, seeking for the substantive issue and the jurisdictional issue to be dealt with together was:

“akin to asking the court to exercise its jurisdiction before it determines whether or not it has jurisdiction in the first instance. […] Only if the court determines that it has jurisdiction to do so can it go on to consider the fairness or otherwise of the dismissal itself”.

Following the caselaw outlined above I find that there is a “strong case” for determining this matter by way of preliminary decision.

Preliminary Issue: Has the Complainant named the correct Respondent?

Section 2 of the Equal Status Act 2000 (as amended) (hereinafter referred to as “the 2000 Act”) states:

“service” means a service or facility of any nature which is available to the public generally or a section of the public, and without prejudice to the generality of the foregoing, includes—

(a) access to and the use of any place,

(b) facilities for—

(i) banking, insurance, grants, loans, credit or financing,

(ii) entertainment, recreation or refreshment,

(iii) cultural activities, or

(iv) transport or travel,

Section 42 of the 2000 Act states:

42(1) Anything done by a person in the course of his or her employment shall,  in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that person’s employer, whether or not it was done with the employer’s  knowledge or approval.

 (2) Anything done by a person as agent for another person, with the authority  (whether express or implied and whether precedent or subsequent) of that other person shall, in any proceedings brought under this Act, be treated for the purposes  of this Act as done also by that other person.

 (3) In proceedings brought under this Act against an employer in respect of an act  alleged to have been done by an employee of the employer, it shall be a defence for  the employer to prove that the employer took such steps as were reasonably practicable to prevent the employee—

 (a) from doing that act, or

 (b) from doing in the course of his or her employment acts of that description.  

In the course of my investigation into the complaint I sought to confirm the name of the parties. The Complainant confirmed that her surname had changed since the referral of her complaint to the WRC and I have amended her name accordingly. The Complainant also confirmed that her complaint was against the Respondent named on the Form ES1, namely the Respondent cited. The Respondent’s representative stated that the incorrect legal entity was named by the Complainant. The Complainant did not make an application to amend the name of the Respondent to reflect the correct legal entity. The Group General Manager of the Respondent’s employer volunteered the name of the legal entity which employed the Respondent and stated that at all material times the Respondent was acting in the course of her employment with that legal entity. The Respondent’s representative consented to the amendment of the name of the Respondent but noted that the Complainant was not seeking to amend the name of the Respondent. The Respondent’s representative submitted that in the absence of an application by the Complainant to amend the name of the Respondent the Adjudication Officer did not have jurisdiction to do so. The Complainant was asked on a number of occasions both at the commencement of the hearing and at the conclusion of the hearing if she wished to amend the name of the Respondent to reflect the correct legal entity and she declined stating that her complaint was as against the Respondent cited in this case.

Having heard the Complainant’s evidence and the evidence of and on behalf of the Respondent and taking into consideration oral submissions of the parties and the documentation furnished to the WRC in advance of the hearing I find that at all material times the Respondent cited was acting in the course of her employment. I find that the Respondent cited in this case is not the service provider under the 2000 Act but is instead an employee of the service provider, the legal entity which owns and/or operates the hotel where she worked. In that context the legal entity which owns and/or operates the hotel where the Respondent worked is statutorily liable for the actions of the Respondent and therefore I find that the named Respondent is not statutorily liable for this complaint. I find that the Complainant has named an incorrect Respondent in these proceedings.  Accordingly, I find that I do not have jurisdiction to hear this complaint.

As the Respondent has not been properly identified I have decided to anonymise their name on this decision.

I decide that that Complainant has named the incorrect Respondent in these proceedings and accordingly I find that I do not have jurisdiction to hear this complaint.