Complainant

Respondent

Anonymised Parties

A complainant

Mr C. the head of a state agency

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00019587-001

29/04/2018

The complainant referred his complaint on 29 May 2018. On his complaint form, he gave two different names for the respondent state body, as well as naming three individual employees of that body, of which person named in this complaint is actually the head. These complaints were listed as five separate complaints by the Commission, of which the within complaint is one. All five were delegated to me by the Director General on 14 August 2018 for investigation and decision. I had a joint hearing with the parties on 27 September 2018.

Prior to the hearing of the complaint, I wrote to both parties by email on Monday 24 September 2018, as follows:

“I am of the opinion that these [NB: the three complained against named employees of the respondent] are misconceived in law due to how the issue of vicarious liability is handled in the Equal Status Acts.   This thinking is informed by the decision DEC-S2008-039, John and Angela Mongans and Children v. Clare County Council, in which my former and current colleague, Ms Marian Duffy, B.L., examined the issue of vicarious liability and the possibility of naming individual staff members working for a respondent organisation in complaints under the Equal Status Acts.   Ms Duffy’s decision is undisturbed as of this writing and robustly argued and I have referred to it since in my own work, most recently in DEC-S2018-002, Mr Michael and Ms Anne O’Donoghue and their children v. Clare County Council.

All of these decisions can be found on the decisions database on the Workplace Relations Commission website.  You will find them most easily by entering the decision number into the relevant field.  It seems only fair to notify the parties in advance that I will be examining this point and to advise them of the case law I will have regard to in this matter. “

The complainant stated at the hearing of the complaint that he had not received my email, due to the volume of emails he receives in the relevant account. I explained that I chose to communicate with the parties by email due to the short time-frames to the hearing, where a posted letter would have given the parties insufficient time to consider this point. In light of his representations, I undertook to send it to him by post, along with a printout of DEC-S2008-039, John and Angela Mongans and Children v. Clare County Council, and did so immediately after the hearing. I gave him until Tuesday 30 October 2018 to revert with observations, and received same by email at 9:10am.

I am acceding to the complainant’s request for anonymity in all five cases because of the complainant’s unusual name and because of concerns he expressed that the within complaints may be traceable to a family law matter in which he is involved.

In his written observations, the complainant objected in general terms to the fact that a complaint which he had submitted on a single form should result in five different adjudication decisions. He did not, however, submit a discernible legal argument as to why the Mongans decision should be set aside in the context of the within complaint.

The respondent stated that the jurisprudence of the Equality Officer in DEC-S2008-039, John and Angela Mongans and Children v. Clare County Council, is robust and that the within case should accordingly be dismissed as misconceived.

I first wish to note that no specified complaints of any kind were actually advanced by the complainant against Mr C., which makes the within case differ slightly from the complaints against Mr A. (ADJ-00014981) and Mr B. (ADJ-00015025), which I have decided in the context of ADJ-00015022, A Complainant v. A State Agency.     In other words, there would be no case even if the issue of the complaint being misconceived for technical reasons did not arise.   As it is, I am satisfied that even the head of a state agency is its employee, albeit its most senior one.

The issue, then, is whether the within complaint is misconceived because the vicarious liability provisions of the Equal Status Acts do not allow individual employees of a respondent to be impleaded under the Acts where they act in the course of their employment.

A claim is misconceived when it is incorrectly based in law. In Keane v. Minister for Justice [1994 3IR 347], Lynch J found that the Minister had no statutory power to relieve Leitrim County Council of its duty to provide courthouse accommodation in Carrick-on-Shannon and that her direction to the council was therefore “wholly misconceived and invalid”.

Section 42 of the Equal Status Acts, Vicarious liability, states that

“(1) Anything done by a person in the course of his or her employment shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that person’s employer, whether or not it was done with the employer’s knowledge or approval. “

In DEC-S2008-039, John and Angela Mongans and Children v. Clare County Council, the Equality Officer first notes that “person”, in the context of the Acts, also includes a public body pursuant to Section 2(1). She then went on to find that in that particular case, all personally named staff members of the defendant local authority acted in the course of their employment, and that Clare County Council was therefore vicariously liable for their actions.

It was likely clear from the evidence adduced by the complainant, that the respondent’s employee who is named in the within complaint was acting in the course of his employment with the respondent. The respondent, as noted above, accepts this position.

I am therefore satisfied that it was misconceived of the complainant to implead Mr C.

As regards the complainant’s objections to the decision of the Commission to treat his complaint against the five respondents as five separate complaints, I wish to note that this is an operational matter for the Commission. If the decision about the complainant’s complaints had issued as a single decision, it would still contain separate findings in respect of all named respondents. The complainant’s rights are not impinged by this organisational approach, cumbersome at it may appear.

For the reasons set out above, I am dismissing this complaint as misconceived pursuant to my powers under S. 22 of the Equal Status Acts.

S. 22 – misconceived – vicarious liability - DEC-S2008-039, John and Angela Mongans and Children v. Clare County Council.