ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00051809

Parties:

	Complainant	Respondent
Parties	Elizabeth Flynn	Phoenix Inn Limited t/a Kestrel House

	Complainant	Respondent
Anonymised Parties

Representatives

Saoirse Kelly, B.L., Instructed by Daly Khurshid Solicitors LLP

Siobhan Clabby, B.L., instructed by BCM Solicitors

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-00063192-001	30/04/2024

Date of Adjudication Hearing: 15/10/2024

Workplace Relations Commission Adjudication Officer: John Harraghy

Procedure:

In accordance with Section 25 of the Equal Status Act, 2000, 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. At the hearing a number of preliminary issues and adjourned on the basis that the Adjudication Officer would consider the matter and made a decision to adjourn the matter in order to allow time for other proceedings to conclude or make a decision in relation to the jurisdiction of the Workplace Relations Commission in this matter.

While the parties are named in this document, from here on, I will refer to Elizabeth Flynn as “the Complainant” and to Phoenix Inn Ltd (t/a Kestrel Inn) as “the Respondent.”

The parties were advised in a letter confirming details of the hearing that following the delivery of a judgement of the Supreme Court in Zalewski v Adjudication Officer on 06/04/2021 that hearings before the Workplace Relations Commission are now held in public. That may result in decisions no longer being anonymised. The parties were advised that an Adjudication Officer may take evidence on oath or affirmation.

The Respondent was represented by Ms Siobhan Clabby, B.L., instructed by BCM Solicitors. Mr Michael McGowan also attended the hearing on behalf of the Respondent.

The Complainant attended the hearing and was represented by Ms Saoirse Kelly, B.L. instructed by Khurshid Solicitors LLP.

Background:

This matter came before the Workplace Relations Commission (WRC) on 30/04/2024 as a complaint pursuant to the Section 21 of the Equal Status Act, 2000. The Complainant alleges discrimination on the grounds of Membership of the Travelling community. The Respondent submits that the Workplace Relations Commission does not have jurisdiction in this matter.

Summary of Respondent’s Case:

The Respondent raised a number of preliminary matters:

It was submitted on behalf of the Respondent that the WRC does not have jurisdiction in this matter by virtue of the provisions contained in Section 19 of the Intoxicating Liquor Act. The Statutory Instrument [S.I. 362/2003 – Intoxicating Liquor Act 2003 (Commencement Order 2003)] gave effect to the decision to transfer jurisdiction of Equal Status Act complaints to the District Court.

The Respondent wishes to make an application for this matter to be dismissed taking into account that the Complainant is on notice that the Respondent is a licenced premises and has already commenced proceedings in the District Court. The District Court made a decision in relation to the burden of proof and the Complainant has appealed this to the High Court. If the High Court overturns that decision the matter will be remitted back to the District Court and not the WRC.

The Respondent also submits that there are a number of previous cases before the WRC where the WRC has declined jurisdiction. The following cases were cited by the Respondent’s representative: ADJ-00045069; ADJ-00047351 and ADJ-00046239.

In the event that the Adjudication Officer decided otherwise than to dismiss this matter It is the Respondent’s position that this is one of 10 cases currently before the District Court and it is not tenable that the Respondent is expected to defend the same cases before the WRC and incur costs associated with this.

Summary of Complainant’s Case:

It was submitted on behalf of the Complainant that the within complaint was submitted to the WRC on 30/04/2024 in order to ensure compliance the time provisions of the Equal Status Act. The Complainant’s representatives submits that the provisions of Section 19 of the Intoxicating Liquor Act 2003 are incompatible with the provisions of the Equal Status Act.

The discrimination in this case is based on membership of the Travelling Community which is a protected category under the Equal Status Act.

The Complainant’s is seeking an adjournment of the WRC proceedings for a period of at least three months so that the High Court appeal of a District Court decision in relation to the burden of proof is held and also to allow time for a potential Judicial Review if the need arises.

It is submitted on behalf of the Complainant that the adjournment application should be granted.

Findings and Conclusions:

It is not disputed that the Kestrel Inn is a licensed premises. This was confirmed to the Complainant’s representative by the Respondent on 01/12/2023. The Complainant served an ES1 notice on the Respondent on 28/11/2023.

Section 19 of the Intoxicating Liquor Act, 2003 transferred jurisdiction of Equal Status Act complaints to the District Court. Section 19(11)(a) of The Intoxicating Liquor Act, 2003 provides as follows:

“The Act of 200 shall cease to apply in relation to prohibited contract occurring on or at the point of entry to, licensed premises on or after the commencement of this section”.

The reference to the “Act of 2000” means the Equal Status Act, 2000. The effect of this provision is that jurisdiction had been transferred to the District Court in cases of any alleged discrimination on or at the point of entry to a licensed premises, such as that of the Respondent.

Section 19(1) of the Intoxicating Liquor Act, 2003 provides: “A person who claims that prohibited conduct has been directed against him or her, on, or at the point of entry to, licensed premises may apply to the District Court for redress”.

The Complainant in this case was seeking service in the Respondent’s licensed premises, The Kestrel Inn on 30/20/2023. The Intoxicating Liquor Act, 2003 provides that redress in relation to any alleged discriminatory treatment on any of the grounds specified in the Equal Status Act, 2000 may be sought in the District Court.

I have decided that this complaint is not admissible under the provisions of the Equal Status Act, 200 and therefore I do not have jurisdiction to consider this complaint of discriminatory treatment on the grounds of membership of the Travelling Community.

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 provisions under Section 27 of that Act.

CA-00063192-001

In view of the reasons which I have outlined about I had decided that I do not have jurisdiction in this matter.

Dated: 13th of November 2024

Workplace Relations Commission Adjudication Officer: John Harraghy

Key Words:

Equal Status Acts 200 – 2015. Intoxicating Liquor Act, 2003. Discriminatory treatment.