ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00036721
Parties:
| Complainant | Respondent |
Parties | Mr. Adrian Caulfield | Sigma Retail Partners |
Representatives | N/A | Mr. Connor Quigley, Ahern Rudden Quigley LLP, instructing Mr. Kevin Bell B.L.. |
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-00048012-001 | 06/01/2022 |
Dates of Adjudication Hearing: 09/03/2023 and 22/05/2024
Workplace Relations Commission Adjudication Officer: Elizabeth Spelman
Procedure:
In accordance with section 41 of the Workplace Relations Act 2015 and / or section 25 of the Equal Status Act 2000-2018,following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the Parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
This matter was heard remotely, pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and S.I. 359/2020, which designated the Workplace Relations Commission (the “WRC”) as a body empowered to hold remote hearings.
The Hearing Dates:
The remote Hearing was held over the course of two days:
Hearing – 9 March 2023:
Mr. Caulfield (the “Complainant”) attended the Hearing. Sigma Retail Partners (the “Respondent”) was represented by Mr. Connor Quigley of Ahern Rudden Quigley LLP, instructing Mr. Kevin Bell B.L.. Ms. Jenna Culligan and Mr. Denis Hogan attended as witnesses for the Respondent.
At the outset of the Hearing, the Complainant made a postponement application due to medical reasons. The Complainant first put the WRC on notice of this application, the day before the Hearing. The Complainant submitted that he had a medical condition which was under investigation and which could be exacerbated if the Hearing proceeded. The Complainant indicated that he would not be in a position until after 7 April 2023, to confirm whether this matter could proceed. The Complainant also indicated that he had not received a copy of the Respondent’s submissions.
The Respondent objected to the adjournment application. The Respondent submitted inter alia that the complaint was vexatious and that the Respondent was present and prepared for the matter to proceed.
I noted that I had received a stamped medical certificate from the Complainant in support of his postponement application. In the circumstances, I granted the postponement application. I asked the Complainant to confirm by 11 April 2023 as to whether he was proceeding with this matter. I also stated that I would ensure that a copy of the Respondent’s submissions were sent to the Complainant.
On 17 April 2023, the Complainant confirmed that he was proceeding with his complaint. In September 2023, the Complainant made a further postponement application, stating that the resumed Hearing could not be scheduled before February 2024.
Hearing – 22 May 2024:
The Complainant attended the Hearing. The Respondent was represented by Mr. Connor Quigley of Ahern Rudden Quigley LLP, accompanied by Ms. Anna Tuite, instructing Mr. Kevin Bell B.L.. Ms. Emma Leonard and Mr. Denis Hogan attended as witnesses for the Respondent.
The Hearing was held in public. Evidence was provided on oath. The legal perils of committing perjury were explained. I confirmed that cross-examination would be allowed.
At the outset of the Hearing, I noted the following:
- The Complainant confirmed that his complaint is against the Respondent, as named above. The Complainant also confirmed that his related complaint under ADJ-00036724 was withdrawn.
- The Parties confirmed that there are no ongoing criminal or civil proceedings related to this matter.
- The Parties confirmed that all submissions concerning this matter had been received.
Complainant’s Application for Document Production:
The Complainant made an application that the Adjudication Officer exercise her statutory powers concerning document production, pursuant to sections 33 and 34 of the Equal Status Act 2000-2018, as amended (the “ESA”). The Complainant submitted that the Respondent “accosted” and “attacked” him in a public area. The Complainant submitted that he required specific policy documents and CCTV footage. The Complainant submitted that the Respondent did not follow its procedure and instead took a “hard and discriminatory” approach towards him.
In support of his submissions, the Complainant sought to rely on, inter alia, A Complainant Represented by a Traveller's Development Project v. A County Council, DEC-S2009-009 and Iarnród Éireann v. Mannion [2010] IEHC 326. The Complainant also referred to unsuccessful Data Subject Access Requests and Freedom of Information Requests which he had made to the Respondent. The Complainant submitted that he sought “material information” and CCTV footage.
Finally, the Complainant submitted that the Adjudication Officer must exercise her functions in accordance with the principles of fair procedure and constitutional justice. He further submitted that consideration must be given as to whether the principles of fair procedure and constitutional justice require that the Complainant has access to this documentation in order to know the nature of the evidence against him and / or to facilitate his cross-examination of witnesses, if required.
Respondent’s Submissions:
The Respondent submitted that the documentation sought is not relevant to the complaint. The Respondent further submitted that the documentation sought has no probative value. The Respondent submitted that the Complainant is seeking CCTV footage which postdates the Respondent’s decision to rescind the Complainant’s permission to attend Harbour Shopping Centre. The Respondent submitted that the application is a “fishing expedition”. Finally, the Respondent submitted that it is not subject to the Freedom of Information legislation.
Ruling:
I adjourned for ten minutes to consider the Parties’ submissions. I provided an oral ruling and confirmed that the same would be set out in the Decision.
I explained that I have to consider whether the Respondent has information that is relevant to enable me to exercise my functions in investigating the Complainant’s complaints brought pursuant to section 21 of the ESA. To this end, I explained that I had considered the Complainant’s submissions dated 2 March 2023 and the Parties’ oral submissions provided that day.
I noted that the word “may” in the legislation confirms that the relevant statutory powers under the ESA are permissive in nature. I explained that I was refusing the Complainant’s application for the following reasons:
- I found that the Complainant had not demonstrated that the Respondent has information that is relevant to enable me to exercise my functions. For example, the procedural documentation sought does not go to the specifics of the complaint before me. Moreover, I found that it had also not been made clear to me how the CCTV footage is relevant to enable me to exercise my functions.
- I referred to the WRC decision of Ammi Burke v. Arthur Cox LLP, ADJ-00026883 which examines the approach taken by the High Court and the WRC in assessing Parties’ evidence. It notes that a witness summons (or by extension in this instance, a request to provide information) is not issued to “require a party to meet a case in a certain way [or to] fill in gaps in a party’s evidence”.
- I noted that it is for the Parties to decide what evidence they will produce and what witnesses they will call. It is then a matter for me, as the Adjudication Officer, to assess the evidence and decide according to the strength of that evidence.
Finally, I also explained that I have no powers pursuant to the General Data Protection Regulation and / or the Freedom of Information legislation, both of which are outside of my jurisdiction.
Complainant’s Application for an Adjournment:
The Complainant was clear that he was dissatisfied with the ruling (outlined above) and consequently he sought an adjournment. The Complainant submitted that he cannot proceed with his complaint without the documentation that he requested. He referred to the WRC decision in Adrian Caulfield v. New Frontiers, Athlone Institute of Technology (now Technological University of the Shannon Midlands Midwest), ADJ-00025741; and to his Re Haughey rights. He stated that he will appeal this matter to the Circuit Court.
The Respondent strongly objected to the Complainant’s adjournment application on the ground that there was no basis for the same.
Ruling:
I refused the Complainant’s adjournment application. I explained that I had provided my ruling regarding the provision of documents. I made it clear to the Complainant that I was present and prepared to hear his case and I asked the Complainant, again, to present his case. As outlined below, the Complainant refused to present his case in any level of detail, stating that he was unable to present his case without documents that are in the Respondent’s possession.
Background:
The Complainant submitted that he was bringing a complaint against the Respondent pursuant to the Equal Status Act 2000-2018, as amended (the “ESA”). The Complainant alleges to have suffered discrimination (direct and indirect), harassment and victimisation on the grounds of gender, civil status, age and disability in the provision of goods and / or services. The Complainant also alleges to have been discriminated against as the Respondent allegedly failed to give him reasonable accommodation for his disability. Finally, the Complainant alleges that the Respondent discriminated against him for “other” reasons. The Respondent denied the allegations in their entirety. |
Summary of Complainant’s Case:
The Complainant filed his Complaint Form on 6 January 2022. The Complainant submitted that two women complained about his conduct in a specific store, which was not “per se” in the Harbour Place Shopping Centre. The Complainant submitted that the Respondent “accosted” and “attacked” him in a public area, on the side of the street. The Complainant further submitted that the Respondent defamed him.
The Complainant referred to the burden of proof under the ESA. The Complainant submitted that he was unable to present his case without documents that are in the Respondent’s possession. The Complainant referred to his rights to fair procedure and constitutional justice. |
Summary of Respondent’s Case:
The Respondent denied the allegations in their entirety and submitted that the complaint is misconceived. The Respondent outlined the Complainant’s permission to attend Harbour Shopping Centre was rescinded due to his altercations with other customers. The Respondent submitted that this decision was not predicated on any of the protected ground under the ESA.
The Respondent submitted that the complaint should be dismissed. |
Findings and Conclusions:
The Law:
The ESA prohibits discrimination in the provision of goods and / services, accommodation and education. It covers the ten protected grounds of gender, civil status, family status, age, disability, sexual orientation, race, religion, membership of the Traveller community and housing assistance (only as regards the provision of accommodation).
Burden of Proof:
The burden of proof is on the Complainant to show that he was discriminated against and / or harassed and / or victimised on a protected ground.
Section 38A(1) of the ESA provides:
“Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the respondent to prove the contrary.”
In Hallinan v. Moy Valley Resources DEC-S2008-25, the Equality Officer held that, in order to establish a prima facie case of discrimination, the following must be established:
1. The complainant is covered by the relevant protected ground; 2. The incident(s) complained of actually occurred; and 3. The treatment constituted less favourable treatment within the meaning of the ESA.
The Complainant did not provide any evidence as to how he was covered by the protected grounds of gender, civil status, age and disability. In any event, it would not be sufficient in itself, for the Complainant to be covered by one of the protected grounds, for his complaint to succeed. Other facts must be adduced from which it may be inferred, on the balance of probabilities, that (an) act(s) of discrimination occurred. The Complainant failed to adduced such facts.
In the case of Olumide Smith v. The Office of the Ombudsman [2020] IEHC 51, Simmons J. held:
“The effect of these legislative provisions is that a complainant is required to discharge a reduced burden of proof, and once this is done, the burden of proof is reversed. As explained by Advocate General Mengozzi in Case C-415/10, Meister ECLI:EU:C:2012:8, [22], the effect of the burden of proof provisions under the Racial Equality Directive (and other related Directives) is that a measure of balance is maintained between the parties, enabling the complainant to claim his or her right to equal treatment but preventing proceedings from being brought against a respondent solely on the basis of the complainant’s assertions.”
Findings and Conclusion:
I am satisfied that I gave the Parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
The Complainant repeatedly refused to present his case in any level of detail. In the circumstances, I find that the Complainant has failed to establish a prima facie case of direct and / or indirect discrimination and / or harassment and / or victimisation on the grounds of gender, civil status, age and disability in the provision of goods and / or services. The Complainant has also failed to establish a prima facie case of discrimination concerning the Respondent’s alleged failure to give him reasonable accommodation for his disability. The Complainant has also failed to establish a prima facie case of discrimination against him for “other” reasons. Therefore, I find that the Respondent did not engage in any prohibited conduct and the complaint is unfounded.
|
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 25 of the Equal Status Acts 2000 – 2018 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act.
For the reasons outlined above, I find that the Complainant has failed to establish a prima facie case of direct and / or indirect discrimination and / or harassment and / or victimisation on the grounds of gender, civil status, age and disability in the provision of goods and / or services. The Complainant has also failed to establish a prima facie case of discrimination concerning the Respondent’s alleged failure to give him reasonable accommodation for his disability. The Complainant has also failed to establish a prima facie case of discrimination against him for “other” reasons. Therefore, I find that the Respondent did not engage in any prohibited conduct and the complaint is unfounded.
|
Dated: 24th of June 2024
Workplace Relations Commission Adjudication Officer: Elizabeth Spelman
Key Words:
Equal Status Act 2000-2018. |