Complainant

Respondent

Parties

Abay  Zhaigaliyev

 Home Club Limited

Representatives

  Self-Represented

 Michelle Savage Director

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00058152-001

07/08/2023

The specific details of the dispute are outlined in the Workplace Relations Complaint Form which was received by the WRC on the 7th August 2023.

The Complainant relied on the submission outlined in the WRC Complaint Form and supplemental documentary evidence in support of his case. These documents were shared with the Respondent. No objection was raised to any of the materials relied upon by the Complainant. At the hearing the Complainant confirmed that his complaint was that he was discriminated against on the HAP ground on the basis that the landlord signed the HAP form for his mother but refused to sign it for him.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

The Respondent provided me with comprehensive written submissions on the 18th October 2023 and 2nd August 2024 and supplemental documentary evidence. These were also shared with the Complainant. No objection was raised in connection with any of the documentary evidence relied upon by the Respondent in the course of making its case.

The Respondent stated that it was the appointed Agent representing the landlord and managing the landlord’s property. The Respondent denied that it discriminated against the Complainant on the HAP ground. There was a HAP tenancy in place in the property with the Complainant’s mother. There was no agreement between the landlord and the Complainant and there had never been a request by the Complainant for a tenancy.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

In making these findings, I have considered the documentation submitted in advance of the hearing, the oral evidence adduced at the hearing and the oral and written submissions made by and on behalf of the parties.

Preliminary Issue: Notification

The Complainant referred the within complaint to the WRC on the 7th August 2023. From a consideration of the file, the documentation furnished to the WRC and the evidence of the Complainant a preliminary issue of notification to the Respondent in accordance with Section 21(2) of the Equal Status Act 2000 (hereinafter referred to as “the Act”) has arisen for consideration in the instant case.

The Law

Section 21(2) of the Act requires that:

(2) 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.

Section 21(3) of the Act state:

(a)    On application by a complainant the Director of the Workplace Relations Commission or, as the case may be, the Circuit Court may –

(i) for reasonable cause, direct that in relation to the complainant subsection (2) shall have effect as if for the reference to 2 months there were substituted a reference to such period not exceeding 4 months as is specified in the direction, or

(ii) exceptionally, where satisfied that it is fair and reasonable in the particular circumstances of the case to do so direct that subsection (2) shall not apply in relation to the complaint to the extent specified in the direction,

and where such direction is given, this Part shall have effect accordingly.

(b) In deciding whether to give a direction under paragraph (a)(ii) the Director of the Workplace Relations Commission or, as the case may be, the Circuit Court shall have regard to all the relevant circumstances, including –

(i) the extent to which the respondent is, or is likely to be, aware of the circumstances in which the prohibited conduct occurred, and

(ii) the extent of any risk of prejudice to the respondent’s ability to deal adequately with the complaint.

The language in Section 21 of the Act is explicit and mandatory. The requirement is that a complainant “shall” take the notification step provided for in Section 21(2) of the Act. There is a prescribed form available, an ES1 Form, to assist complainants in this regard.  It is not mandatory to use this form however, provided the complainant complies with the requirements of Section 21 of the Act. 

The Complainant in his complaint form to the WRC failed to state the date on which he notified the Respondent using the ES1 Form. The WRC wrote to the Complainant on the 18th August 2023 advising that his complaint could not be processed until he confirmed “the date you notified the person/provider using the ES1 form”. By email dated the 24th August 2023 the Complainant replied stating that: “Last time I checked in with my legal counsel from Threshold, if I wrote a written notice that I will be filing a complaint with WRC, that would substitute the ES1 Form.” By letter dated the 6th September 2023 the Complainant was again requested by the WRC to “[p]lease state the date in which you notified the Respondent of the above complaint.” The Complainant replied by email dated the 14th September 2023 stating “As requested by the WRC, to state the date I notified the respondent about me filing a complaint with the WRC with them, the date was 24th of July, 2023”.

On the 6th March 2024 the Complainant submitted to the WRC a copy of an email dated the 24th July 2023. The email was sent by “Leila”, the Complainant’s mother, to “me” and contained within the body the email the following statement in quotations marks:

“As we kindly requested you for a few times to complete HAP Form Part II and received a few refusals from your side to do so for me while you did complete the same form for my mother, Leila Urazbaeva, we are considering lodging a complaint against you to WRC over you refusing to accept my HAP and therefore discriminating me”

It is not evident from an examination of the document that it was in fact sent by the Complainant’s mother to the Respondent as there is no reference to the Respondent’s or its Director’s email address on the face of the document. From a consideration of the other documentation submitted by the Complainant to the WRC the words “to me” appear on emails where the recipient is the Complainant.

Having considered this matter I am satisfied from the evidence adduced and based on the balance of probabilities that the Complainant did not comply with the notification requirements set out in Section 21 of the Act before submitting a complaint to the WRC as against the Respondent herein.

In considering this matter I note the provision of Section 21(3)(a)(ii) of the Act which provides for a discretion to set aside the provisions of Section 21(2)(a)(ii) of the Act.  I note, however, that this should only be applied “exceptionally”. 

The Labour Court in the case of Gaelscoil Thulach na nOG v. Fitzsimons-Markey, EET034, stated:

“The term exceptional is an ordinary familiar English adjective and not a term of art.  It describes circumstances such as to form an exception, which is out of the ordinary course or unusual or special or uncommon, to be exceptional a circumstance need not be unique or unprecedented or very rare; but it cannot be one which is regular or routinely or normally encountered.”

It is clear therefore that any decision to apply this discretion should only be taken in circumstances that are out of the ordinary.

The Complainant stated that he was advised by Threshold and the email from the Complainant to the WRC date the 24th August 2024 referred to above confirms that the Complainant “checked” with his “legal counsel from Threshold”about the notification requirements. There was no application made by the Complainant for a direction that subsection (2) shall not apply in relation to the within complaint.

In considering this matter, I have heard no evidence that would support the position that “exceptional circumstances” exist in this matter such as to satisfy me that it would be fair and reasonable to initiate the process of directing that subsection (2) not apply in respect of this complaint.

Consequently, I find that I do not have jurisdiction to hear this complaint.

For the reasons set out above I find that the Complainant has not provided evidence that he complied with the terms of Section 21(2) of the Act before seeking redress against the Respondent. Based on this finding I decide that I do not have jurisdiction to hear the complaint.