Complainant

Respondent

Parties

Colm Mc Namee

Mr Sean Lawlor (On Behalf Of The Department Of Social Protection) Employment Programmes

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00008456-001

29/11/2016

The complaint, submitted under Section 21 of the Equal Status Act 2000, received by the Workplace Relations Commission on 29th November 2016 states:

“I have been discriminated against by a person, organisation/company who provides goods, services or facilities”.

A hearing was held on 30 August 2017. Arguments were advanced by both parties as to the relevance of the particular legislation under which the complainant submitted his complaint.             Follow up submissions were made summarised as follows:

The complainant states that “properly construed”, his complaint alleges contravention of sections 6,8,11,12,14, 14a, 15,16,33 and 74 of the Employment Equality Act 1998 and by letter dated 3rd September 2017, he made application to amend his complaint under the Equal Status Act.     He also sought an extension of time up to 6 September 2017 for the making of that claim.                             He further states that in an email dated 31 January 2017 to the WRC, he sought for the commission to adjudicate on the preliminary issue of whether or not it would be more appropriate for his claim to be taken under the employment equality act 1998-2015. He did not receive a response from the commission.   He cites Section 11 of the Workplace Relations Act 2015 where the Commission may provide advice to employers, or representative bodies, employees and trade unions or excepted bodies.   It is submitted that as contained in Kerr “Employment Equality Legislation”(2016), The Equality Tribunal confirmed thatits complaint form was not a statutory form and consequently a complaint could be referred “in any written format”.                                                                                The complainant makes a number of points regarding the status of his employment and the refusal by the Department of Social Protection to approve a grant for him for work equipment/adaptation.   He puts forward the point that the Department of Social Protection victimised him by initially approving the grant and then revoking it. He also points to the contradiction in asserting who is his employer, i.e. the DSP contends that he is not a private sector employee for the purposes of the grant.

The respondent submits that the complaint submitted under the Equal Status Act 2000 has no application to the respondent and that the claim should be dismissed. The 2000 Act has not application because the respondent is not a provider of service to the complainant within the meaning of section 4 of the 2000 Act. It is also submitted that the complaint constitutes an abuse of process, having been initiated by the complainant because of a disciplinary process commenced by his employer in 2015/2016 and in light of the complainant’s repeated attempts to get the individual named as respondent to stop his employer’s investigative and disciplinary process on threat that he (the complainant) would make a complaint against him.   The complainant’s attempts to have his email dated 31 January 2017 to the WRC deemed to be an amendment to his complaint is rejected.   On no reading of that email can it be construed as an application to amend the complaint form. It is submitted that had an amendment application been made, the respondent would have been asked to address whether the amendment sought should be made or not. The complainant sought that the Adjudication Officer – rather than adjudicate on the complaint made – would provide legal and other advice to the complainant on his claims. No justification can be made to carry out this function.   This would be ultra vires and inconsistent with their adjudicative role.                                   It is submitted that the complainant’s artificial attempts to have his emails construed as an application to amend his complaint is wholly vexatious and mischievous as any claim under the Employment Equality Act would be doomed to fail in any event. See the High Court judgement in Martin v Minister for Social Protection [2017] IEHC 361.   The respondent seeks a determination that the Equal Status Act does not apply, and that the complaint has been made in bad faith, is frivolous and vexatious, and a finding of fact that no amendment application was brought by the complainant.

The Equal Status Acts 2000 – 2015 prohibit discrimination in the provision of goods and services, accommodation and education. The respondent in this instant case is not a provider of goods and services and the complaint is misconceived under the Acts.                                                                        In relation to the complainant’s request dated 3rd September 2017 to have his complaint amended to allege contraventions of the Employment Equality Acts extended to 6th September 2017 for the making of that claim, I find that this is a moot point.   I find that the respondent named in this instant case, is neither a provider of goods and services nor the employer of the complainant.                                      His complaints are misconceived and I decline jurisdiction in the matter.