Complainant

Respondent

Parties

Abdeslam  Ouadah

Irish Citylink

Complainant

Respondent

Anonymised Parties

Representatives

Self-Represented

Self-Represented

Act

Complaint Reference No.

Date of Receipt

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

CA-00060793-001

02/01/2024

On 2nd January 2024, the Complainant referred the present complaint to the Commission. Herein, he alleged that the Respondent, the provider of a service within the meaning of the impleaded Act, discriminated against him on the grounds of race. In particular, the Complainant alleged that the Respondent discriminated against him in refusing to allow him to board one of their vehicles. By responding submission, the Respondent denied the allegations raised by the Complainant stating that he was late in attending for the bus, and that, as consequence of the same, the vehicle was full.

On 2nd January 2024, the Complainant notified the Respondent of the allegations set out in the complaint by way of form ES1. On that same date, the Complainant referred the present complaint to the Commission. At the outset of the hearing, the Adjudicator raised an issue as to the Complainant’s compliance with the notification requirements of the Act. As this issue may be determinative of the entire set of proceedings, it will be considered in advance of the substantive issue.

In answer to a question posed by the Adjudicator, the Complainant accepted that he referred the present complaint on the same day he issued form ES1 to the Respondent. When the notification requirements of the Act were outlined to him by the Adjudicator, the Complainant submitted that prior to notifying the Respondent of the issue by way of form ES1, he had spoken with and issued an email of complaint to the relevant department within the Respondent organisation. In such circumstances, the Complainant submitted that he complied with the notification requirements, and that the matter should proceed.

While the Respondent made no submission regarding the notification requirements of the Act, they submitted that they were willing to defend the complaint on its merits.

In the present case, the Complainant has alleged that the Respondent discriminated against him in the provision of a service. As with all such complaint under the impleaded legislation, the Complainant must satisfy the notification requirement present in the Act prior to the Adjudicator assuming jurisdiction in relation to the substantive dispute.

In this regard, it is common case that the Complainant issued comprehensive form ES1 to the Respondent on 2nd January 2024. This form provided the Respondent with notification as regards an allegation of discrimination that occurred on 27th December 2023.

Section 21(2) of the Act (as amended) provides that,

“Before seeking redress under this section the complainant—

(a) shall, within 2 months after the prohibited conducted is alleged to have occurred, or, where more than one incident of prohibited conduct is alleged to have occurred, within 2 months after the last such occurrence, notify the respondent in writing of—

(i) the nature of the allegation,

(ii) the complainant’s intention, if not satisfied with the respondent’s response to the allegation, to seek redress under this Act”.

Thereafter, subsection 4 provides that,

“The Director of the Workplace Relations Commission…shall not investigate a case unless the Director of the Workplace Relations Commission…satisfied either that the respondent has replied to the notification or that at least one month has elapsed after it was sent to the respondent.”

From the factual matrix provided by the Complainant, it is apparent that by issuing form ES1 to the Respondent, he has complied with the requirements of subsection 2 cited above. However, given that the Complainant issued the present set of proceedings on the same day as issuing notification to the Respondent, he would appear to be in some difficulty regarding the requirements set out in subsection 4, cited above. In particular, it is evident that the Complainant did not either receive a respondent from the Respondent in relation to the issuing outlined in the notification and he did not allow for a period of one month to elapse prior to referring the complaint. In this regard it is noted that point seven of form ES1 states that,

“Please note that I intend to seek redress under the Equal Status Acts if I am not satisfied with the reply I receive, or if you do not reply within one month after it was sent to you.”

At the outset of the hearing, the Complainant submitted that he raised this issue with the Respondent by way of an internal complaint prior to issuing the notification. In this regard it is noted that on 28th December 2022 the Complainant sent an email of complaint to the Respondent outlining the issues he had experienced and seeking a resolution in respect to the same. By response dated 31st December 2022, the Respondent stated his ticket would be refunded and blamed the issue on apparent “technical difficulties”.

In consideration of the foregoing, it is apparent that the Complainant notified the Respondent of the issue by way of this communication but did not set out the nature of the allegation i.e. that he was discriminated against on the grounds of race. It is further noted that this correspondence is silent as to any apparent intention to seek redress under this Act.

Having regard to the foregoing, I find that the Complainant has not complied with the notification requirements set out in Section 21 of the Act.

Notwithstanding the foregoing Section 21(3)(a)(ii) provides that,

“On application by a complainant the Director of the Workplace Relations Commission…may…(ii) exceptionally, where satisfied that it is fair and reasonable in the particular circumstance of the case to do so direct that subsection (2) shall not apply in relation to the complainant to the extent specified in the direction”  

While the Complainant did not specifically invoke this provision, during the hearing he submitted that it would be fair and reasonable to allow the matter to proceed, notwithstanding the issues regarding notification.

In considering this application, I am mindful of the authority of G -v- Department of Social Protection [2015] IEHC 419. Here in considering the application of the Act generally, O’Malley J. stated that,

“...the Act is intended to cover a broad range of human life and activity, and that its overall purpose is to reduce the social wrong of discrimination based on improper considerations. Having regard to the principles applicable to remedial statutes, it should be construed widely and liberally.”

In considering the Complainant’s application, I am conscious that he referred the present complaint without any form of external legal assistance. He also took the time to attend a hearing scheduled for this purpose and presented his complaint in a logical and concise manner. Notwithstanding the same, the fact remains that I cannot assume jurisdiction to issue a decision under the same without either proof of compliance with Section 21(2) or the application of the exception provided for in Section 21(3).  In this regard the Complainant’s application cannot be said to be exceptional for these purposes. The nature of the notification requirement is that it applies to all litigants regardless of whether they are represented or not. The Complainant’s application in this regard is essentially based on a lack of understanding of the relevant process at the time of referring the complaint. It has been long established that such a failure does not constitute a valid ground for an extension of time, or in this particular matter, the waiver of the notification requirement.

In the matter of Minister for Finance v Civil and Public Services Union and Others [2007] 18 ELR 36, Laffoy J. held that,

“…under the established jurisprudence in this jurisdiction lack of knowledge or awareness on the part of the claimant, or the absence of a legal precedent which indicates, that as a matter of law, a claim will have a successful outcome does not prevent a statutory limitation period from starting to run.”

In the matter of Globe Technical Services Limited and Kristin Miller (UD/17/177), the Labour Court held that,

“It is settled law that ignorance of one’s legal rights, as opposed to the underlying facts giving rise to a complaint, cannot provide a justifiable excuse for failure to bring a claim in time.”

In more recent times, in the matter of Parent -v- A Primary School ADJ-00043954, the failure to comprehend the legal requirements for the referral of such complaints was not held to be a valid ground for the waiver of the notification requirement in this forum.

Having regard to accumulation of foregoing points, I find that the I cannot assume jurisdiction to hear the complaint.

I find that the Complainant has not complied with the notification requirements stipulated by Section 21 of the Act.

In such circumstances I cannot find that the Respondent has engaged in prohibited conduct and, as a consequence of the same, the complaint is not well-founded.

Notification, Exceptional, Waiver