ADJ-00012558

ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00012558

Parties:

Complaint(s):

Date of Adjudication Hearing: 25/04/2018

Workplace Relations Commission Adjudication Officer: Niamh O'Carroll Kelly BL

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and following the presentation by an employee of a complaint of a contravention by an employer of an Act contained in Schedule 5 of the Workplace Relations Act of 2015 or such other act as may be referred to in the 2015 Act, made to the Director General and following a referral by the said Director General of this matter to the Adjudication services, I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint or dispute.

The Complainant herein has referred a matter for dispute resolution under Section 21 Equal Status Act, 2000 and the referral has been made within six months of the initial circumstances of the relevant dispute/contravention.

Preliminary Application.  

1. Jurisdiction. 

Summary of Complainant’s submission in relation to Jurisdiction.  

The complainant herein states that during the course of a previous hearing (ES 2013/0004 and ES 2013/0115) August in 2017, the manner in which he was crossed examined and the questions put to him, specifically in relation to e-mails, amounted to Harassment, victimisation and discrimination on grounds of race. He states that the questions put to him by Senior Counsel caused him to become ‘flustered’ and he didn’t respond the way he would like to have. He stated that Counsel cast doubt upon his truthfulness and mislead the Adjudicator. 

Summary of the Respondent’s submissions in relation to Jurisdiction. 

There is no basis for the complainant to claim that by defending its position in the previous claim, the respondent is in breach of Section 3(2)( J) of the Equal Status Act, 2000 (as amended). The respondent is entitled to defend its position and in doing so, it is permitted to refute the complainant’s claim in the most robust terms and this is especially so where the complainant is issuing repeated claims against it. The respondent is fully within its rights to describe the complainant’s claims as baseless and without foundation and is entitled also to assert that it will seek costs against the complainant. To assert that, by defending itself against an attack by the complainant, the respondent was victimising the complainant is nonsensical and portrays double standards by the complainant. The purpose of cross examination is twofold. Firstly, to elicit evidence that is favourable to the party cross examining. Secondly, to cast doubt on the veracity, accuracy and reliability of the evidence given by the witness. The right to cross examine is a constitutional right and an essential ingredient to fair procedures. This right exists in all litigation before the Courts and this WRC. The respondent is entitled to an adequate and proper opportunity to question and challenge the complainant’s evidence. This right is not and cannot be curtailed by reasons of Section 3(2)( j) of the Equal Status Act, 2000. 

Findings and Conclusions:

The complainant takes issue with how he was cross examined by Senior Counsel in a previous case involving the Respondent herein. He asserts that the questions asked of him misled the Adjudicator and cast doubt upon his truthfulness. He accepts that he was given an opportunity to respond to the questions put to him but became flustered. As a result, he didn’t respond as he would have liked to. He now feels that the events of that day amount to him being harassed, victimised and discriminated against by that Senior Counsel.

The decision in the previous claim has not yet issued. What the complainant is asking me to do is to trespass upon the previous hearing so that he can mend his hand. I do not have jurisdiction to do so. The respondent is perfectly entitled to defend its position and in doing so, it is permitted to refute the complainant’s claim in the most robust terms. The complainant is entitled to fight back and put any oral testimony or documentation to the respondent to counter their assertions. If the complainant failed to do so, that is not a matter that I have jurisdiction to rectify.

If the complainant is unhappy with the decision in the previous case can he has options available to him. If the complainant is unhappy about how Senior Counsel cross examined him, he has options available to him. None of those options are to be found in the Equal Status Act, 2000. I find that I do not have jurisdiction to hear the within claim. 

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 redress provisions under section 27 of that Act.

I do not have jurisdiction to hear the within claim. 

Dated:              02 May 2018

Workplace Relations Commission Adjudication Officer: Niamh O'Carroll Kelly BL