ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00009095
Parties:
| Complainant | Respondent |
Parties | Olumide Smith | Department of Jobs, Enterprise and Innovation |
Complaint:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000 | CA-00011680-001 | 24/05/2017 |
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer: Pat Brady
Procedure:
In accordance with Section 25 of the Equal Status Act, 2000 following the referral of the complaints to me by the Director General, I inquired into the complaints and firstly considered as a preliminary matter if I have jurisdiction to hear the complaints and if the claims are properly before me for investigation.
Background:
This is one of a large number of complaints made by the complainant arising from interactions in the courts and in various employment tribunals.
The respondent named in this case is he Department of Jobs, Enterprise and Innovation. |
Summary of Complainant’s Case:
The complainant has identified his complaint on the ES1 Form as follows.
Based on my email correspondences to the Respondents postmarked “9 March 2017 at 09:18” and “9 March 2017 at 09:40”, it would appear that your acts and/or omissions as a secure Data Controller caused me to be harassed, victimised, and treated disrespectfully, dismissively, disdainfully, abusively and unfavourably during the High Court Hearings and Judgements (reference numbers supplied), where other third Parties to the Equal Status Complaints filed against The Courts Service concerning the racist harassments which I suffered from a Circuit Family Court Judge, having gained access to the said Equal Status Complaints consequently abused my privacy and confidentiality Rights when these Complaints were disclosed in the High Court as a smearing campaign which consequently provoked against me adverse treatment or adverse consequence as a reaction to a complaint or to proceedings aimed at enforcing compliance with the principle of equal treatment.
He identifies the respondent’s possible liability with the following question.
Can the Department of Jobs, Enterprise and Innovation explain and /or justify why it should not be held vicariously liable for the acts and / or omissions of its quasi-judicial body named in this regard as above?
On what basis or justification did the Respondents as above released or caused to be released to the said third Parties the details of the Equal Status Complaints which I filed concerning racist harassments which I suffered in two consecutive in-camera Circuit Family Court Hearings?
On what basis or justification did the Respondents as above reneged on their obligations as a Data Controller at my detriment concerning the said Equal Status Complaints which third Parties gained access to and disclosed inappropriately in the said High Court? |
Summary of Respondent’s Case:
In its response to the service of Form ES1 the respondent acknowledged receipt of the notification containing the complainant’s assertion that he had been ‘treated unlawfully by the court service and the Workplace Relations commission under the Equal Status Acts.’
It continued;
‘It is not clear what specific complaint is being made against the Department of Jobs Enterprise and employment (DJEI).
The WRC is an independent statutory body under the aegis of the DJEI and is independent of the Department in its day-to-day exercise of the statutory functions.
In light of the independent nature of the WRC and the Department not having any role in its day to day functions the department is a stranger to the complaint and is not in a position to respond to the specific allegations.
Consequently, it is submitted that the Department was not an appropriate respondent to the complaint and that it was ‘also a complete stranger to the complaints made against the Court Service’
The Department’s position is that it has no liability vicariously or otherwise to the complainant.
The WRC is fully independent of the Department in its day-to-day exercise of its statutory functions.
The Minister in the Department does not exercise any control of the WRC in the exercise of its quasi-judicial functions and consequently the pond and minister should not be held vicariously liable for the alleged acts or omissions of the WRC. |
Findings and Conclusions:
The complainant faces a number of obstacles here.
While it is not easy to discern the essence of the complaint it seems clear enough that it arises from proceedings in the courts and the Workplace Relations Commission.
While noting that the complaint form is used to name three respondents and no effort has been made to associate a particular respondent with any specific alleged breach the following must be taken to refer to each of the respondents, including this one.
The complainant says, ‘it would appear that your acts and/or omissions as a secure Data Controller caused me to be harassed, victimised, and treated disrespectfully, dismissively, disdainfully, abusively and unfavourably during the High Court Hearings and Judgements.’
It is very clear from this specific reference that the acts or omissions being referred to were those of the Court.
The position regarding judicial immunity has been well set out in a number of related decisions and it is not necessary to repeat it here. (See, for example ADJs 9069, 9102, 1105 and 14549). The position regarding the immunity from suit of the statutory employment tribunals has also been addressed in previous decisions, see for example ADJs 4824, 14768, 11410, 20717 and Appeal Decision DEC S2017-023),
The first obstacle is his attempt to imply to this respondent some sort of vicarious liability for actions in respect of which there is immunity.
Suffice to say that in those decisions it was found that judicial decision making is not a service or facility available to the public and does not constitute a service as defined under the Equal Status Act 2000 as amended. A Judge in exercising judicial decision making is immune from suit. Submissions in respect of related cases were received from the Courts Service in which they stated that as the matters complained of relate to the conduct of court proceedings and they do not constitute a service as defined under the Equal Status Act 2000, this claim is misconceived as it is incorrectly based in law and that the exercise of judicial decision making is immune from suit. Section 22 of the Equal Status Act 2000 as amended provides ‘that the Director may dismiss a claim at any time if of opinion that it has been made in bad faith or is frivolous, vexatious or misconceived or relates to a trivial matter.’ The alleged conduct which is the source of this complaint relates to the conduct of a Court hearing. Judicial decision making, and the related conduct of court proceedings do not constitute a service or facility available to the public and does not constitute a service as defined under the Equal Status Act 2000 as amended. A Judge in exercising judicial decision making is immune from suit. The following appears in ‘The Equal Status Acts 2000-2011, 2012 edition, Judy Walsh, Blackhall Publishing, at page 43: “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.” I find therefore that this claim is misconceived as it is incapable of achieving the desired outcome and the matter complained of is not a service as defined under the Act. Leaving aside the lack of any connection or liability between the current respondent and the matters complained of, the acts complained of are not amenable to are immune from suit. Section 22 of the Equal Status Act 2000 as amended provides for a complaint to be dismissed at any time if an opinion is formed that the complaint is misconceived. Therefore, I find that the complaint is misconceived and dismiss the complaint. |
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.
For the reasons set out above complaint CA-000011680-001 is misconceived and is dismissed |
Dated: 02 December 2021
Workplace Relations Commission Adjudication Officer: Pat Brady
Key Words:
Judicial Immunity |
ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00009095
Parties:
| Complainant | Respondent |
Parties | Olumide Smith | Department of Jobs, Enterprise and Innovation |
Complaint:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000 | CA-00011680-001 | 24/05/2017 |
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer: Pat Brady
Procedure:
In accordance with Section 25 of the Equal Status Act, 2000 following the referral of the complaints to me by the Director General, I inquired into the complaints and firstly considered as a preliminary matter if I have jurisdiction to hear the complaints and if the claims are properly before me for investigation.
Background:
This is one of a large number of complaints made by the complainant arising from interactions in the courts and in various employment tribunals.
The respondent named in this case is he Department of Jobs, Enterprise and Innovation. |
Summary of Complainant’s Case:
The complainant has identified his complaint on the ES1 Form as follows.
Based on my email correspondences to the Respondents postmarked “9 March 2017 at 09:18” and “9 March 2017 at 09:40”, it would appear that your acts and/or omissions as a secure Data Controller caused me to be harassed, victimised, and treated disrespectfully, dismissively, disdainfully, abusively and unfavourably during the High Court Hearings and Judgements (reference numbers supplied), where other third Parties to the Equal Status Complaints filed against The Courts Service concerning the racist harassments which I suffered from a Circuit Family Court Judge, having gained access to the said Equal Status Complaints consequently abused my privacy and confidentiality Rights when these Complaints were disclosed in the High Court as a smearing campaign which consequently provoked against me adverse treatment or adverse consequence as a reaction to a complaint or to proceedings aimed at enforcing compliance with the principle of equal treatment.
He identifies the respondent’s possible liability with the following question.
Can the Department of Jobs, Enterprise and Innovation explain and /or justify why it should not be held vicariously liable for the acts and / or omissions of its quasi-judicial body named in this regard as above?
On what basis or justification did the Respondents as above released or caused to be released to the said third Parties the details of the Equal Status Complaints which I filed concerning racist harassments which I suffered in two consecutive in-camera Circuit Family Court Hearings?
On what basis or justification did the Respondents as above reneged on their obligations as a Data Controller at my detriment concerning the said Equal Status Complaints which third Parties gained access to and disclosed inappropriately in the said High Court? |
Summary of Respondent’s Case:
In its response to the service of Form ES1 the respondent acknowledged receipt of the notification containing the complainant’s assertion that he had been ‘treated unlawfully by the court service and the Workplace Relations commission under the Equal Status Acts.’
It continued;
‘It is not clear what specific complaint is being made against the Department of Jobs Enterprise and employment (DJEI).
The WRC is an independent statutory body under the aegis of the DJEI and is independent of the Department in its day-to-day exercise of the statutory functions.
In light of the independent nature of the WRC and the Department not having any role in its day to day functions the department is a stranger to the complaint and is not in a position to respond to the specific allegations.
Consequently, it is submitted that the Department was not an appropriate respondent to the complaint and that it was ‘also a complete stranger to the complaints made against the Court Service’
The Department’s position is that it has no liability vicariously or otherwise to the complainant.
The WRC is fully independent of the Department in its day-to-day exercise of its statutory functions.
The Minister in the Department does not exercise any control of the WRC in the exercise of its quasi-judicial functions and consequently the pond and minister should not be held vicariously liable for the alleged acts or omissions of the WRC. |
Findings and Conclusions:
The complainant faces a number of obstacles here.
While it is not easy to discern the essence of the complaint it seems clear enough that it arises from proceedings in the courts and the Workplace Relations Commission.
While noting that the complaint form is used to name three respondents and no effort has been made to associate a particular respondent with any specific alleged breach the following must be taken to refer to each of the respondents, including this one.
The complainant says, ‘it would appear that your acts and/or omissions as a secure Data Controller caused me to be harassed, victimised, and treated disrespectfully, dismissively, disdainfully, abusively and unfavourably during the High Court Hearings and Judgements.’
It is very clear from this specific reference that the acts or omissions being referred to were those of the Court.
The position regarding judicial immunity has been well set out in a number of related decisions and it is not necessary to repeat it here. (See, for example ADJs 9069, 9102, 1105 and 14549). The position regarding the immunity from suit of the statutory employment tribunals has also been addressed in previous decisions, see for example ADJs 4824, 14768, 11410, 20717 and Appeal Decision DEC S2017-023),
The first obstacle is his attempt to imply to this respondent some sort of vicarious liability for actions in respect of which there is immunity.
Suffice to say that in those decisions it was found that judicial decision making is not a service or facility available to the public and does not constitute a service as defined under the Equal Status Act 2000 as amended. A Judge in exercising judicial decision making is immune from suit. Submissions in respect of related cases were received from the Courts Service in which they stated that as the matters complained of relate to the conduct of court proceedings and they do not constitute a service as defined under the Equal Status Act 2000, this claim is misconceived as it is incorrectly based in law and that the exercise of judicial decision making is immune from suit. Section 22 of the Equal Status Act 2000 as amended provides ‘that the Director may dismiss a claim at any time if of opinion that it has been made in bad faith or is frivolous, vexatious or misconceived or relates to a trivial matter.’ The alleged conduct which is the source of this complaint relates to the conduct of a Court hearing. Judicial decision making, and the related conduct of court proceedings do not constitute a service or facility available to the public and does not constitute a service as defined under the Equal Status Act 2000 as amended. A Judge in exercising judicial decision making is immune from suit. The following appears in ‘The Equal Status Acts 2000-2011, 2012 edition, Judy Walsh, Blackhall Publishing, at page 43: “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.” I find therefore that this claim is misconceived as it is incapable of achieving the desired outcome and the matter complained of is not a service as defined under the Act. Leaving aside the lack of any connection or liability between the current respondent and the matters complained of, the acts complained of are not amenable to are immune from suit. Section 22 of the Equal Status Act 2000 as amended provides for a complaint to be dismissed at any time if an opinion is formed that the complaint is misconceived. Therefore, I find that the complaint is misconceived and dismiss the complaint. |
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.
For the reasons set out above complaint CA-000011680-001 is misconceived and is dismissed |
Dated: 02 December 2021
Workplace Relations Commission Adjudication Officer: Pat Brady
Key Words:
Judicial Immunity |