Complainant

Respondent

Anonymised Parties

A General Operative

A Food Company

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-00016039-001

28/11/2017

The complainant was employed by the respondent as a General Operative from 17th August 2017 until his dismissal on 12th November 2017. The complaint relates to alleged discrimination on the grounds of race and disability. The complaint also relates to alleged discriminatory dismissal.

Naming of the parties

To avoid any unnecessary embarrassment to the respondent to this complaint, I have decided to exercise my discretion and anonymise my decision.

The complainant stated that on 9th October 2017, having been employed by the respondent for approximately three months, he injured his hand in a workplace accident and remained absent on sick leave until his dismissal on 12th November 2017. The complainant stated that he attended the workplace on a number of occasions to discuss his injuries and confirmed that he had initiated a personal injuries action against the respondent. The complainant stated that the issue of his Italian passport was raised at the meeting of 8th November 2017, yet it was his understanding that discussing his injuries was the purpose of the meeting and not issues relating to his passport. The complainant confirmed that he was subsequently dismissed with effect from 12th November 2017.

The complainant stated that he was discriminated on the grounds of race and disability as a result of the respondent’s actions and was dismissed for discriminatory reasons. The complainant is seeking compensation in relation to his complaint.

The respondent denies that it discriminated against the complainant on the grounds of race and disability or at all. The respondent stated that when the complainant commenced his employment, he provided a copy of an Italian passport. The respondent stated that when it became clear that the complainant’s passport was a forgery and he was in fact a Brazilian national, he was dismissed on the basis that he was not eligible for employment in the EU.

The Applicable Law

Discrimination

Discrimination is defined under Section 6 of the Employment Equality Act, 1998 as follows:

6(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where —

(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ‘discriminatory grounds’) which —

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) a person who is associated with another person —

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.

The complainant asserts that he was discriminated against by the respondent on the basis of race and as a result of a disability that occurred when he injured his finger in a workplace accident. The complainant also asserts that he was dismissed for discriminatory reasons.

As the adjudication hearing of this complaint progressed, the complainant admitted that he had obtained a forged passport and that he knowingly used his forged passport to obtain employment with the respondent Company. Counsel for the complainant argued that this was standard procedure in this Company and that the Company was somehow complicit in hiring staff who were in possession of forged passports.

The respondent vehemently denied this assertion and confirmed in correspondence submitted after the adjudication hearing had concluded that a number of staff members were dismissed as soon as the issue of forged passports came to light.

Given the complainant’s acceptance of his actions in relation to knowingly obtaining a forged passport to gain employment, I find that his complaint of alleged discrimination on the grounds of race and disability and his allegation of alleged discriminatory dismissal cannot succeed.

Frivolous and Vexatious complaints

The meaning and scope of the words ‘frivolous and vexatious’ were succinctly articulated by a decision of the Supreme Court by Barron J in Farley v Ireland & Ors [(1997) IESC 60, at page 1521 in which it stated:

‘So far as the legality of the matter is concerned frivolous and vexatious are legal terms, they are not pejorative in any sense or possibly in the sense that Mr. Farley may think they are. It is merely a question of saying that so far as the plaintiff is concerned if he has no reasonable chance of succeeding then the law says that it is frivolous to bring the case. Similarly, it is a hardship on the defendant to have to take steps to defend something which cannot succeed and the law calls that vexatious.’‘

In Fay v Tegral Pipes Limited & Ors [[2005] 2 IR 261], the Supreme Court reiterated the principles already well established. McCracken J delivered the Court’s judgement stressing that the ‘real purpose’ of the courts’ inherent jurisdiction to dismiss frivolous or vexatious claims was firstly to ensure that the courts would be used only for the resolution of genuine disputes and not for ‘lost causes’ and, secondly, that parties would not be required to defend proceedings which could not succeed.

In conclusion, I am satisfied that the complaint cannot succeed and therefore meets the definition of frivolous and vexatious. Accordingly, the complaint is dismissed.

Having considered the submissions of both parties and for the reasons stated, the complaint is dismissed as frivolous and vexatious.