Complainant

Respondent

Parties

Colin  McHale

Lakeland Dairies Co-Op Society Ltd.

Representatives

SIPTU

 Alistair Purdy, Solicitor

Act

Complaint Reference No.

Date of Receipt

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

CA-00055356-001

02/03/2023

The Complainant was employed by the Respondent in Maintenance/as a Fitter from 18th March  2014 until 10th October 2020. The Complainant alleges that he was discriminated against on the disability ground - that he was not afforded reasonable accommodations, resulting in what he alleges is a discriminatory dismissal, in contravention of the Employment Equality Acts.

The Respondent denies the Complainant’s claims.

In advance of the hearing, the Complainant’s representative applied for a postponement (under Process 2 of the WRC’s Guidelines on Postponements). That application was considered and refused by the WRC, in advance of the hearing.

A remote hearing was convened on Thursday, 13/07/2023 at 12.30pm.

The Complainant failed to appear, at the remote hearing convened to hear his case.

The Complainant’s representative entered an appearance, on his behalf, and made an application for an adjournment. The reason proffered in this instance, at the hearing, was that there were Personal Injuries proceedings in the High Court, listed for hearing that week, and the Complainant was “unavailable” as he was “preparing for the High Court case.”

The Adjudication Officer, at the hearing, told the representative for the Complainant that “the fact the Complainant is not here is most unsatisfactory.” The Complainant’s representative said it is “the best I can do, in the circumstances.” The Complainant’s representative submitted that what happened in the High Court “may overlap” with the WRC case, although she could not clarify how, and further submitted that dependent on what happened in the High Court, the case herein (the WRC case) may be withdrawn by the Complainant. The representative for the Complainant asserted that she had the “consent” of the Respondent in relation to a postponement. The Adjudication Officer, at the hearing, outlined the postponement process, as follows: Process 1 – on consent, within five days of notification of the hearing date; Process 2 – an application for a postponement is made; the other party may raise no objection [when their comments are sought] but there is no consent process, in Process 2. The WRC decides the application.

The Complainant’s representative was given an opportunity to produce the Complainant – the matter was scheduled for hearing starting at 12.30pm, for the rest of the day. It was scheduled for hearing for 4.5 hours. The hearing was a remote hearing. The Adjudication Officer clarified for the Complainant’s representative that the matter was scheduled for hearing for the rest of the day and asked whether the representative could “produce the Complainant at any point today, so that I can hear his case.” The Complainant’s representative said that she could not.

There was unsolicited post-hearing correspondence from the Complainant’s representative which sought to conflate the power under the EEA for the Director General of the Workplace Relations Commission to strike out a case for want of prosecution, on the one hand, with a finding by an Adjudication Officer against a Complainant for want of evidence,on the other hand, in circumstances where the Complainant failed to appear despite being on notice of the hearing date and time, and in circumstances where nothing meeting the threshold of “substantial reasons and exceptional circumstances” (as per Process 2 of the WRC’s Guidelines on Postponements) was cited or produced, as a reason for the Complainant’s failure to appear. Insofar as can be discerned, the post-hearing correspondence also appears to conflate the High Court call-over list with a case getting on for hearing.

For completeness, the union representative was (obviously) not on record for the Complainant in the High Court matter. The Adjudication Officer, at the hearing, enquired as to whether the Solicitor for the Respondent was on record for the Respondent, in the High Court matter. He confirmed that he was not.

The Solicitor for the Respondent submitted that the WRC case could proceed, that Culkin V Sligo County Council [2017] IECA 104 was of relevance here, that the High Court had stated on several occasions that these matters were “separate and distinct”, and he submitted that there was no difficulty in the WRC case proceeding.

He said that he had checked the relevant High Court personal injuries listing (Dundalk), and the Complainant’s High Court case was listed as “not before Tuesday” and that, in any event, it was no. 38 in the list and he submitted that that meant, that “there was no prospect” of it getting on for hearing.

He sought to have the matter struck out for want of prosecution. The Adjudication Officer indicated that she was so minded and clarified that the finding would be “for want of evidence.” The Solicitor for the Respondent stated that the remedy of the Labour Court was always open to the Complainant, if he wished to pursue it.

The Adjudication Officer drew the hearing to a close.

I am satisfied that the Complainant was on notice of the hearing.

I find that there is no reality to the reason proffered for his failure to appear in circumstances where: 1. The hearing was a remote hearing – the Complainant could have dialled in on his phone.

2.  His representative was given an opportunity to produce him at any point over the course of several hours, and demurred.

The High Court case being listed for hearing, at a later date, has no bearing on the ability of the WRC hearing to proceed now. It is notable that neither of the representatives in the WRC case were on record in the High Court case.

I find that the application for an adjournment made at the hearing did not meet the threshold of “substantial reasons and exceptional circumstances” as required.

I further note that no submissions were received on behalf of the Complainant in advance of the hearing.

The application made by the representative for the Complainant for a postponement, made prior to the hearing was declined, and I say that it is not reasonable for a Complainant to fail to appear, in a bid to force an adjournment, in circumstances where his previous application for a postponement has been declined, and where the WRC Guidelines on Postponements state clearly that: “Unless and until a party receives confirmation that the hearing has been postponed, the hearing will proceed as scheduled.”

The postponements process was also clarified by the Adjudication Officer at the hearing, for the representative for the Complainant, who repeatedly asserted that she had “consent” from the Respondent and has also repeatedly stated that she thinks her application is “reasonable.” For clarity and completeness, the decision-making power in respect of postponements vests in the WRC, not in the parties or their representatives.

I find for the Respondent.

I find that this complaint was not made out, for want of evidence.

No appearance by the Complainant; Parallel Proceedings; Postponement declined pre-hearing; Adjournment declined at hearing; Does not meet the threshold of “substantial reasons and exceptional circumstances.”