ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00026773
Parties:
| Complainant | Respondent |
Anonymised Parties | Complainant | Residential Tenancies Board |
Representatives | Self | Niamh Diskin Eversheds Sutherland & Katherine McVeigh BL |
Complaint:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000 | CA-00033843-001 | 16/01/2020 |
Date of Adjudication Hearing: 12/10/2021
Workplace Relations Commission Adjudication Officer: Brian Dalton
Procedure:
In accordance with Section 25 of the Equal Status Act, 2000, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
I have exercised my discretion to anonymise the complainant having regard to his mental health disability and relevant medical data disclosed to support his claim.
Background:
The complainant states that he was denied an adjournment unreasonably by the Tribunal. On the day of the hearing he experienced a serious deterioration in his mental health that in turn prevented him from attending. He believes that that the tribunal showed bias to the respondents concerning their circumstances by proceeding with the hearing and failed to afford the complainant reasonable accommodation. Denying me an adjournment, reasonable accommodation, because of a respondent’s frustration at the delay in proceeding, despite his failure to comply with the Residential Tenancies Act 2004, by not registering the tenancy, is discrimination or the notice parties’ childcare costs is a form of heterosexism whereby my civil status and sexual orientation were not treated equally to that of the heterosexual couple with children who were only notice parties to the case. One of the notice parties is a childcare assistant and the family of the notice parties live locally and often minded the children. The RTB refused to provide me with the further information I requested in the ES1 Form and sent me a generic letter dated the 08th January 2020 stating that adjudicators act independently in a quasi-judicial manner. Quasi is a word used to show that something is almost, but not completely, the thing described. The adjudicators are not judges and I don’t believe the adjudicators act outside the remit of the Equal Status Act 2000-2015 The complainant states that adjudicators are not judges and are subject to the Equal Status Act 2000-2015. The respondent states that the complaint is not properly before the Workplace Relations Commission and the Commission has no jurisdiction to hear this complaint concerning another statutory body exercising quasi-judicial functions: 2.1 Section 22 of the 2000 Acts provides: The Director of the Workplace Relations Commission may dismiss a claim at any stage if of the opinion that it has been made in bad faith or is frivolous, vexatious or misconceived or relates to a trivial matter. 2.2 It is respectfully submitted that the complaints submitted against the Respondent are misconceived and should be dismissed as frivolous and vexatious. It must be noted that to dismiss complaints under s.22, the complaint can be frivolous or vexatious or misconceived – all three are not necessary. This point was emphasised in the Supreme Court case of Kelly v Information Commissioner [2017] 3 I.R.31,which addressed the law in relation to frivolous or vexatious claims. Section 22 of the 2000 Act allows the decision to dismiss to be made “at any time”; this point was also highlighted by the Supreme Court in Kelly In Farley v Ireland [1998] ELR 256,1 the Supreme Court stated that the question in such applications is whether a plaintiff has no reasonable chance of success. The Court stated at para. 20: “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 [the plaintiff] 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. And again one cannot change the principles of law to suit the merits of a particular case…”. 2.4 In the recent case of Highfield Distribution Ltd v Pat the Baker Unlimited Company [2020], the High Court stated that in such applications to dismiss: “the function of the Court is to consider one question only, was it proper to institute the proceedings? This question must be answered in the light of the statement of claim and such incontrovertible evidence as the defendant may adduce. If the claim could never have succeeded, then the proceedings should be struck out. There is no room for considering what evidence should be accepted or how it should be interpreted. To do the latter is to enter onto some sort of hearing of the claim itself” as per Jodifern Ltd v Fitzgerald [2000] 3 IR 321. 2.5 The complaint herein is misconceived, frivolous or vexatious and has no reasonable chance of success. The entire complaint concerns the decision of a statutory body to refuse an adjournment. The Complainant advanced no satisfactory evidence to the Respondent to support his application of an adjournment at the material time or at all. Further, the Respondent is a statutory body that hears rental disputes. As such, the Respondent has a zone of discretion in which it can marshal its own procedures. The Respondent, as a statutory body, like the WRC, must be able to form its own view, based on the facts before it and balancing the interests of all parties. The Respondent was acting within its remit and discretionary powers to make a decision involving the procedures of a matter before it. |
PRELIMINARY MATTER:
The complainant is a lay litigant and also has a mental disability; having regard to these facts the adjudicator requested that the complainant seek independent legal advice:
DearMr. (anonymised),
Further to the hearing on the 24th February 2021 a key consideration relates to the scope of the Equal Status Acts 2000 as amended and legal jurisdiction to hear your complaint.
The Equal Status Act at section 14 states:
14.—(1) Nothing in this Act shall be construed as prohibiting—
( a) the taking of any action that is required by or under—
(i) any enactment or order of a court,
(ii) any act done or measure adopted by the European Union, by the European Communities or institutions thereof or by bodies competent under the Treaties establishing the European Communities, or
(iii) any convention or other instrument imposing an international obligation on the State
The respondent relies upon section 104(4)(e) of the Residential Tenancies Act 2004 as amended, in the exercise of making a legal decision provided by law and therefore your complaint they contend, is outside the scope of the Equal Status Act as provided by section 14(1) of that Act. The specific section relied upon in the exercise of the RTB’s legal decision making is at 104(4)(e):
(4) The following information shall be included in such a notice—
( a) the date, time, venue and purpose of the hearing,
( b) an outline of the substance of the matters to be dealt with at the hearing,
( c) an outline of the procedures to be adopted at the hearing,
( d) a reference to the provisions of this Act and any rules made under it that are relevant to the holding of the hearing,
( e) a statement that the Tribunal will, unless substantial grounds arise for its deciding to do otherwise, proceed with the hearing at the date and time concerned notwithstanding that a party does not attend the hearing,
( f) a statement that the Tribunal will determine the dispute notwithstanding that a party does not take part in the proceedings before the Tribunal, and
( g) any other information the Tribunal considers appropriate.
As you received the respondent’s submission late and not prior to 21 days of the hearing, I am extending the time by a further 21 days so that you can make a considered response to the point concerning the legal jurisdiction of the WRC to hear your complaint. In the respondent’s submission they argue when the Board is making a legal decision it is not a service as defined under section 2 the Equal Status Act and as further detailed at section 14. Therefore, the WRC has no jurisdiction to hear your complaint.
I extend time by a further 21 days until the 19th March 2021 for you to make any additional written submissions on this point of jurisdiction.
In this regard you may wish to seek assistance such as from the Free Legal Advice Centre or the Irish Human Rights and Equality Commission.
It is noted that there are two emails from you to the Residential Tenancies Board on the 30th September and on the 1st October 2019 concerning an adjournment and that you question whether the administrative function of the Residential Tenancies Board communicated the latter request to the Board for consideration by them. You rely on the fact that no record of the email of the 1st October is recorded in the decision of the Board. However ,the RTB rely on an email stating that it had been forwarded to the Board for their consideration in exercise of their legal power under section 104 of the Residential Tenancy Act 2004 as amended, when deciding to proceed or not to proceed with the hearing.
In turn if you decide to make a written submission on this specific point of jurisdiction, the respondent will be given 2 weeks to respond.
Yours sincerely,
After extensive exchange of documents between the parties on all matters concerning the complaint and the right to reply; the hearing reconvened on the 12th of October 2021. At the hearing it was confirmed by the Tribunal that they decided in their own right to proceed with the hearing and that they were made aware of the complainant’s incapacity and inability to attend having regard to a deterioration in his mental health.
The Tribunal is subject to judicial review both with regard to alleged bias and also on the application of fair procedures at the hearing. The Tribunal’s decision making functions and statutory powers as set out in the Residential Tenancies Act 2004 as amended are subject to judicial oversight and a decision is subject to appeal to the High Court on a point of law.
76.—(1) Either or both of the parties to an existing or terminated tenancy of a dwelling may, individually or jointly, as appropriate, refer to the Board for resolution any matter relating to the tenancy in respect of which there is a dispute between them.
123.—(1) A determination order embodying the terms of an agreement referred to in section 96(1) ] or the determination of an adjudicator under section 97 shall become binding on the parties concerned on the order being issued to them.
(2) A determination order embodying the terms of a determination of the Tribunal shall, on the expiry of the relevant period, become binding on the parties concerned unless, before that expiry, an appeal in relation to the determination is made under subsection (3).
(3) Any of the parties concerned may appeal to the High Court, within the relevant period, from a determination of the Tribunal (as embodied in a determination order) on a point of law.
(4) The determination of the High Court on such an appeal shall be final and conclusive.
The matter referred to me under the Equal Status Act relating to the alleged failures of the Tribunal; concerning perceived bias and their decision to proceed with the hearing; in the absence of the complainant is misconceived; as the statutory function of the Tribunal is not a service as defined under the Act, rather it is engaged in quasi -judicial decision making. How the Tribunal fulfils this role is subject to judicial scrutiny. This means that the complainant could have referred his grievance concerning how fairly and impartially that role is conducted to the High Court. The Equal Status Act does not provide an alternative route to address concerns relating to how the Tribunal performs their quasi-judicial functions.
Jurisdiction:
The complaint is made against the respondent in their capacity as an adjudicator/decision maker under the Residential Tenancies Act 2004 as amended and arise from their decision to continue with the hearing; although, the complainant on the day of the hearing made contact with the board to state that he was seeking an adjournment . The nexus of the relationship between the complainant and the Tribunal is based on the relevant Statutory provisions that allow for the determination of the complaint. That determination made by the Tribunal relates to quasi-judicial decision making:
103.—(1) The number of members of the Tribunal shall be 3.
(2) Each of the members of the Tribunal shall be a person who is, for the time being, a member of the Dispute Resolution Committee.
(3) The members of the Tribunal shall be appointed by the Board.
(4) One of the members of the Tribunal shall be the chairperson of the Tribunal; F169 [ … ] the Board shall determine which of the members shall be the chairperson.
(6) The Tribunal shall be independent in the performance of its functions.
(7) A decision of a majority of the members of the Tribunal suffices for any purpose.
The statutory powers and functions of the Tribunal solely derives from statute.
The complainant relies upon the Equal Status Acts 2000-2015 to ground his complaint against the Tribunal who the complainant states is a person, organisation, company who provides goods, services or facilities and that when providing that service he was discriminated on the ground of disability.
Section 2 of the Equal Status Act 2000 as amended defines a service as:
“ service” means a service or facility of any nature which is available to the public generally or a section of the public, and without prejudice to the generality of the foregoing, includes—
( a) access to and the use of any place,
( b) facilities for—
(i) banking, insurance, grants, loans, credit or financing,
(ii) entertainment, recreation or refreshment,
(iii) cultural activities, or
(iv) transport or travel,
( c) a service or facility provided by a club (whether or not it is a club holding a certificate of registration under the Registration of Clubs Acts, 1904 to 1999) which is available to the public generally or a section of the public, whether on payment or without payment, and
( d) a professional or trade service,
but does not include pension rights (within the meaning of the Employment Equality Act, 1998 ) or a service or facility in relation to which that Act applies;
Section 14 of the Equal Status Act 2000 as amended states that:
Certain measures or activities not prohibited.
14.—(1) Nothing in this Act shall be construed as prohibiting—
( a) the taking of any action that is required by or under—
(i) any enactment or order of a court
Judy Walsh in the Equal Status Acts 2000-2011, 2012 edition, Blackhall Publishing, at page 43 states:
“Equivalent UK provisions have been subject to fairly extensive interpretation(McColgan, 2005, pp 255-285; Monaghan, 2007, pp 505-508). In a number of cases UK courts concluded that ‘services’ were confined to acts of similar kind to acts that might be carried out by a private person. Therefore, functions that are of a public law nature (i.e. enforcement, regulatory and control functions) have fallen outside the scope of that country’s non-discrimination legislation.”
Determination of a complaint as provided under the Residential Tenancies Act 2004 as amended is not a service as defined at section 2 of the Equal Status Act 2000 as amended such as access to financial services; travel; cultural activities and recreational services.
In Fogarty v Employment Appeals Tribunal (DEC-S2009-087) the Equality Officer concluded:
4.8 I also find that the adjudication and decision making function of the respondent under the Unfair Dismissals Acts is not a "service" or "facility" which is available to the public. The respondent is exercising a quasi-judicial decision making function which is not subject to the terms of the Equal Status Acts. Therefore I find that any aspect of this complaint which refers to the decision making function of the respondent is misconceived.
In Adj-00011410 a preliminary matter was raised concerning the Judicial Immunity of a Statutory Tribunal. This complaint was also made under the Equal Status Acts about another statutory tribunal. In relying on the Supreme Court judgement of Beatty v the Rent Tribunal [2006] 2IR 191, the adjudication officer determined that he had no jurisdiction to hear the complaint. In Beatty the Supreme Court approved of Lord Kilbrandon’s remarks concerning the immunity of a Statutory Tribunal :
I think it appropriate to cite a passage from the speech of Lord Kilbrandon in the House of Lords in Arenson v. Casson Beckman Rutley & Co. (for some reason named in the English Court of Appeal as Arenson v. Arenson) [1975] 3 All ER 901 at 918
“To these tribunals the citizen is bound to go if he wants to maintain particular rights or to obtain an opinion carrying authority ultimately enforceable by the public agencies; like as before them the citizen must appear to answer claims or complaints against him. (This is subject to the rights citizens may have to make agreements one with another to submit their civil differences elsewhere). The citizen does not select the judges in this system, nor does he remunerate them otherwise than as a contributor to the cost of government. The judge has no bargain with the parties before him. He pledges them no skills. His duties are to the state: it is to the state that the superior judge at least promises that he will do justice between all parties, and behave towards them as a judge should. I do not suppose that there is any English lawyer, and he would be a bold Scottish lawyer, who would say that here there is a contract between the state and the judge with a jus quaesitum tertio in the litigant. It is for the state to make such arrangements as may be necessary for the correction of careless or erroneous judicial decisions; if those arrangements are deemed to be inadequate, it is for parliament to put the matter right. And if it be necessary to state the matter in terms of the law of tort, litigants are not persons to whom judges owe a legal duty of care, a duty which does not exist in the abstract, but only towards persons in particular relationships. The fact that he is under a moral duty is nihil ad rem. Judges in this context include, of course, persons forming tribunals and other bodies such as I referred to above.”.
In Miley and ors v Employment Appeals Tribunal [2016, IESC 20], the Supreme Court determined that the Employment Appeals Tribunal analogous to a lower court such as the District Court has judicial immunity from suit:
- In this case the EAT did not act as a legitimate contradictor. It was a tribunal which acted in a manner analogous to the position of a District judge in many judicial review proceedings - where no opposition to the review was filed.
Based on the foregoing this claim is misconceived based on a misunderstanding of the law. The Tribunal was fulfilling quasi-judicial decision making as set down in statute and those functions are covered by the principle of judicial immunity. The determination and the decision making function of that role is not a service or facility available to the public and do not constitute a service as defined under the Equal Status Act 2000 as amended. This claim is misconceived based on the fact that the Equal Status Act 2000 in this case does not provide statutory authority to investigate the complaint. I find that I have no jurisdiction to investigate these complaint.
Section 22 of the Equal Status Act 2000 as amended states:
— (1) The Director of the Workplace Relations Commission may dismiss a claim at any stage if of opinion that it has been made in bad faith or is frivolous, vexatious or misconceived or relates to a trivial matter.
As I have formed the opinion that the claim is misconceived pursuant to section 22 I dismiss the claim.
Summary of Complainant’s Case:
See preliminary matter |
Summary of Respondent’s Case:
See preliminary matter |
Findings and Conclusions:
See preliminary matter |
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.
This claim is misconceived based on a misunderstanding of the law. The Tribunal was fulfilling quasi-judicial decision making as set down in statute and those functions are covered by the principle of judicial immunity. The determination based on a hearing and the decision making function of that role is not a service or facility available to the public and do not constitute a service as defined under the Equal Status Act 2000 as amended. This claim is misconceived based on the fact that the Equal Status Act 2000 in this case does not provide statutory authority to investigate the complaint. I find that I have no jurisdiction to investigate the complaint. Section 22 of the Equal Status Act 2000 as amended states: — (1) The Director of the Workplace Relations Commission may dismiss a claim at any stage if of opinion that it has been made in bad faith or is frivolous, vexatious or misconceived or relates to a trivial matter. As I have formed the opinion that the claim is misconceived pursuant to section 22 I dismiss the claim. |
Dated: 04-01-22
Workplace Relations Commission Adjudication Officer: Brian Dalton
Key Words:
Quasi-Judicial Decision Making- Misconceived. |