ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00052368
Parties:
| Complainant | Respondent |
Anonymised Parties | Customer Service Associate | Professional Services Company |
Representatives | Did not attend | Tiernan Lowey, B.L., instructed by Rachel Jones Lewis Silkin Ireland |
Complaint:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00064163-001 | 19/06/2024 |
Date of Adjudication Hearing: 26/09/2024
Workplace Relations Commission Adjudication Officer: John Harraghy
Procedure:
In accordance with Section 79 of the Employment Equality Acts, 1998 - 2015, 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.
The parties were advised 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. Both parties were advised that an Adjudication Officer may take evidence on oath or affirmation.
The parties were notified of these changes by the WRC in the letter confirming details of the hearing.
The Complainant has advised the WRC on 6th September that he changed his surname by Deed Poll to Redacted. He has provided copies of the High Court document and Garda document in relation to this.
A hearing was scheduled for 26/09/2024. There was no appearance by or on behalf of the Complainant. The Respondent’s legal representatives and a number of witnesses were present and prepared to defend its position in relation to these complaints.
I allowed a period of time to elapse before bringing the hearing to a close. The Complainant later submitted an e mail to the WRC which stated:
“As I had checked my e-mails this morning and received an attachment from the Respondent regarding this case which I was asked to confirm the receipt for with a high amount of pages, I did not feel prepared to attend the hearing with this short notice, considering that I always submitted everything in due course”.
After the hearing the Respondent requested that the published decision be anonymised. The rationale for this was that the Complainant is still an employee and the Respondent wishes to avoid anything that might compromise the employment relationship and minimise potential workplace friction. As a matter of courtesy, I sought the views of the Complainant and he strongly opposed this request based on his belief that his issues were not dealt with by the Respondent. The Complainant did not attend the hearing and provided his reasons for not doing so.
The Complainant’s opposition to this request reflects a desire for transparency, likely stemming from a belief that anonymisation might obscure or downplay the issues he raised. His perspective is based on his strongly held belief that the Respondent did not adequately address his concerns. However, the Complainant’s absence from the hearing—despite providing reasons—adds complexity and he has to accept the consequences arising from this.
The discretion to anonymise rests solely with the Adjudication Officer, and I have carefully considered the matter and decided in favour of anonymisation. This decision reflects the Adjudication Officer’s responsibility to balance the interests of both parties and maintain the integrity of the employment relationship without bias from either side.
Given that neither party has a veto over this decision, as the Adjudication Officer I have decided that the decision will be anonymised and the decision will be published ensuring that no identifying information of either party is disclosed in the published decision.
Background:
The Complainant is employed as a Customer Service Associate with the Respondent. He commenced employment on 09/05/2022. The Complainant submitted a complaint to the WRC on 19/06/2024 alleging that he was discriminated against by reason of his religion. The Respondent believes that the Complainant has failed to disclose an arguable cause of action and/or the claim is entirely unfounded and was made in bad faith and is wholly misconceived. |
Summary of Complainant’s Case:
The Complainant did not attend the hearing. The Complainant later contacted the WRC by email to say that as he had received the Respondent’s submission, he did not feel prepared to attend the hearing. |
Summary of Respondent’s Case:
The Respondent’s legal representatives and a number of witnesses attended the hearing and were prepared to defend its position in relation to this complaint. The Respondent submits that this complaint is unfounded and made in bad faith and is wholly misconceived. |
Findings and Conclusions:
I am satisfied that the Complainant was properly notified of the date, time and venue of the hearing. I note that he was familiar with the WRC’s postponement process and had utilised this on a previous occasion. While the Respondent provided a late submission this consisted of 5 pages and attached submissions. The Complainant would have been facilitated with a period of time to review this submission if he had requested to do so at the hearing. I do not accept that the Complainant could not have been prepared for the hearing. The Complainant submitted his complaint to the WRC on 19/06/2024 and was notified of the hearing arrangements on 26/07/2024. The Complainant was also aware that the Respondent was refused a postponement request and the hearing arrangements were again confirmed to him. The onus of proof is on the Complainant to first establish a prima facie case of discrimination before the burden shifts to the Respondent to set out its defence. The principles were set out by the Labour Court in Southern Health Board v Mitchell(2001) DEE 011: “(2) A claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. (3) Only if these primary facts are established to the satisfaction of the Court, and they are regarded as being of sufficient significance to raise a presumption of discrimination, does the onus shift to the Respondent to prove that there was no infringement of the principle of equal treatment. Wallace v. South-Eastern Education and Library Board[1980] NI 38; [1980] IRLR 193 followed”. Bolger, Bruton, Kimber; Employment Equality Law 2nd Ed. 2022 at para 2-207 commenting on Mitchell: “This test requires that facts relied upon by a Complainant must be proved by them to the satisfaction of the Tribunal or Court at the level of balance of probabilities and if proven, must be of sufficient significance as to raise an inference of discrimination. In the case before it, the Labour Court found, on the facts of the case, that the Complainant could not demonstrate superior qualifications and experience than the successful appointee and that she therefore failed to discharge the burden of proof that rested on her”. Section 85A of the Acts states that where facts are established by or on behalf of a Complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the Respondent to prove the contrary. As there was no appearance by or on behalf of the Complainant at the hearing to pursue the complaints and/or give evidence in relation to this complaint I conclude that this complaint is not well founded. |
Decision:
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
CA-00064163-001 I am satisfied that the Complainant was properly notified of the hearing arrangements. I find that his non-attendance at the time of the hearing, without any notification, to pursue this complaint to be unreasonable. In the absence of any evidence proffered by or on behalf of the Complainant seeking adjudication by the Workplace Relations Commission under Section 77 of the Employment Equality Act, 1998, I find that this complaint is not well-founded. |
Dated: 11-10-2024
Workplace Relations Commission Adjudication Officer: John Harraghy
Key Words:
Non attendance. Burden of proof. Anonymisation. |