ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00046855

Parties:

	Complainant	Respondent
Parties	David Juhasz

	Complainant	Respondent
Anonymised Parties		An Employee

Representatives

Self-represented; case presented by Mary-Jane Juhasz

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

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000	CA-00057184-001	03/07/2023

Date of Adjudication Hearing: 01/07/2024

Workplace Relations Commission Adjudication Officer: Christina Ryan

Procedure:

In accordance with Section 25 of the Equal Status Act 2000 (as amended) 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 by way of a remote hearing on the 1st July 2024 pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and S.I. 359/2020, which designated the WRC as a body empowered to hold remote hearings.

The Complainant confirmed that since referring her complaint to the WRC her surname has changed and her surname has been amended accordingly.

This complaint was heard by me in conjunction with one other complaint, ADJ-00046858, from the Complainant’s wife, dealing with the same matters. Mary-Jane Juhasz presented the case on behalf of herself and her husband David Juhasz. Most of the text of this decision is replicated in the aforementioned decision, save where the Complainants’ unique circumstances dictate otherwise.

The Respondent was represented by Neil Flynn B.L. instructed by Karl Howe, Solicitor of Clark Hill LLP. Two employees of the Respondent’s employer attended the hearing to give evidence on the on behalf of the Respondent.

At the adjudication hearing the parties were advised that in accordance with the Workplace Relations (Miscellaneous Provisions) Act 2021 hearings before the WRC are now held in public and, in most cases decisions are not anonymised. Neither party objected to the hearing being held in public and having their names listed in the decision when published on the WRC website. As the Respondent has not been properly identified I have decided to anonymise their name on this decision.

I allowed the right to test the oral evidence presented by way of cross-examination. The parties were afforded a short adjournment during the course of the hearing in advance of the Respondent going into evidence. When the hearing resumed the Ms. Juhasz stated that herself and the Complainant had sought legal advice as a result of procedural matters which had arisen during the course of the morning, which she said she would not be expanding upon any further, and that on foot of the said advice she would not be asking any questions of the Respondent or their witnesses by way of cross-examination. Three witnesses, including the Respondent cited, gave evidence on behalf of the Respondent and after each of the witness’ evidence-in-chief I reminded the Complainant of his right to cross-examine the witness and on each occasion he declined. On the last occasion the Complainant requested that I refrain from raising the matter again and that his position remained that on foot of legal advice he would not be cross-examining the Respondent or any of their witnesses.

The Complainant raised no technical issues during the course of the evidence. Ms. Juhasz was afforded the opportunity to make closing submissions on behalf of herself and the Complainant and it was at the commencement of same that it was stated that the Complainant had not heard the Respondent’s evidence. In response to questions from the Adjudication Officer Ms. Juhasz and the Complainant stated that they did not raise the matter at the time as Ms. Juhasz was informed while she was being cross-examined to refrain from interrupting. While it was maintained on behalf of the Complainant that the Adjudication Officer said that the Complainant or Ms. Juhasz were not permitted to interrupt the hearing this was not correct. The participants were asked to refrain from speaking over each other. The participants were informed on numerous occasions that they would each be afforded an opportunity to give their evidence and to cross-examine witnesses. The difference between examination in chief, cross-examination and submissions was explained. Ms. Juhasz was told on numerous occasions that the parties would be afforded an opportunity to make submissions at the conclusion of the evidence and I reminded the Complainant and Ms. Juhasz of this when they intervened. I informed Ms. Juhasz that it was of paramount importance that herself and the Complainant hear the Respondent’s evidence and I sought to have the Respondent’s evidence given again. The Complainant stated unequivocally that he did not want the Respondent’s evidence given again and that even if he had heard all of the Respondent’s evidence, on foot of legal advice, the Complainant would not have asked any questions arising from same.

The parties were advised that the Workplace Relations (Miscellaneous Provisions) Act 2021 grants Adjudication Officers the power to administer an oath or affirmation. All participants gave evidence by way of affirmation.

Where I deemed it necessary, I made my own inquiries to better understand the facts of the case and in fulfilment of my duties under statute.

The parties’ respective positions are summarised hereunder followed by my findings and conclusions and decision. I received and reviewed documentation from both parties prior to the hearing. All evidence and supporting documentation presented by the parties has been taken into consideration.

Background:

The Complainant is alleging that he was discriminated by association because he was associated with or connected to a member of the traveller community. The Respondent denies that they had discriminated against the Complainant whether because he was associated with or connected to a member 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.

Summary of Complainant’s Case:

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

Summary of Respondent’s Case:

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 their employer.

Findings and Conclusions:

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 his 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. Ms. Juhasz and the Complainant were asked on a number of occasions both at the commencement of the hearing and at the conclusion of the hearing if they wished to amend the name of the Respondent to reflect the correct legal entity and they declined stating that the 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.

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.

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.

Dated: 5/12/24

Workplace Relations Commission Adjudication Officer: Christina Ryan

Key Words: