ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00006183

Parties:

Complaint:

Date of Adjudication Hearing: 

Workplace Relations Commission Adjudication Officer:  Brian Dalton

Procedure:

In accordance 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.

Background:

Preliminary Matter

Jurisdiction

The complaint is made against the Department of Jobs, Enterprise and Innovation alleging that they have vicarious liability for the prohibited conduct of racial discrimination and harassment that he alleges occurred at a Labour Court Hearing and the subsequent determination.

The complainant states that a detailed submission will be forwarded; however, no submission has been received.

The Department replied to the complainant and stated that the Labour Court is an independent statutory body under the aegis of the Department of Jobs, Enterprise, and Innovation. The department has no role in the day-to-day function of the Labour Court.

The complainant relies upon the Equal Status Acts 2000-2015 to ground his complaint against the Labour Court 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 race.

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 by the Labour Court as provided under the relevant employment act, 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 the Supreme Court judgement of Beatty v the Rent Tribunal [2006] 2IR 191, the 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 û 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 had judicial immunity from suit:

28. 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 as it is incorrectly relying on the Equal Status Act 2000 as amended to bring an action, because the complainant takes issue with the conduct of a Labour Court hearing and determination. The Labour Court was fulfilling quasi-judicial functions as set down in statute and those functions are covered by the principle of judicial immunity. The quasi-judicial and the decision-making functions of the Court 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. While the complaint is made against the Department of Jobs Enterprise and Innovation it relates to alleged unfavourable treatment during a Labour Court Hearing and seeks to pursue a discrimination claim against the Department based on vicarious liability. As the complaint is misconceived against the Labour Court, a vicarious liability cannot arise against the Department of Jobs, Enterprise & Innovation; therefore, the claim cannot achieve the desired outcome and is legally misconceived.  I find that I have no jurisdiction to investigate this complaint.

The Labour Court is subject to judicial oversight and Judicial Review. On a point of law the complainant may refer a matter to the High Court.

Section 22 of the Equal Status Act 2000 as amended states:

22. — (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.

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.

Dated:   02nd December 2021

Workplace Relations Commission Adjudication Officer:  Brian Dalton

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