ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00010993

Parties:

Complaint:

Date of Adjudication Hearing: 

Workplace Relations Commission Adjudication Officer:  Brian Dalton

Procedure:

Background:

Preliminary Matter

The complaint is made against the Workplace Relations Commission concerning alleged misconduct by Adjudicators. The nexus of the relationship between the complainant and the adjudicators is based on the relevant statutory provisions that provide for the investigation of those complaints. These investigations of the complaints by the Adjudicators are referred to as quasi-judicial decision making and involve the administration of justice as provided for under the relevant statute.

Section 40 of the Workplace Relations Act 2015 sets out how an Adjudicator is appointed and the Equal Status Act 2000 as amended details the powers of the Adjudicator with regard to the investigation of a complaint made under that Act.

Section 2 of the Equal Status Act defines what a service is and this complaint alleges discrimination that occurred at two separate adjudication hearings as detailed. Two named adjudicators are stated to have discriminated against the complainant based on his race and that they were engaged in provided a service as defined under the Act.

A central question relates to whether or not the Adjudicators are engaged in a service as defined under the Act; as that is the basis that the Commission is named as being vicariously liable for their alleged discriminatory acts that amount to prohibited conduct as defined in the Act.

The complaints are made against adjudicators and it is alleged that the Commission is vicariously liable for their conduct as it offends the Act.  The complaints arise from interactions during the hearing between the complainant and two named adjudicators.  The nexus of the relationship between the complainant and the adjudicators is based on the relevant Statutory provisions that allow for the investigation of the complaint. That investigation and determination made by the adjudicator relates to the administration of justice and also is referred to as quasi-judicial decision making. Section 40 of the Workplace Relations Act 2015 states:

Adjudication officers

(1) Subject to subsection (2), the Minister may appoint—

(a) such and so many of the members of the staff of the Commission, and

(b) such and so many other persons, as he or she considers appropriate to be an adjudication officer or adjudication officers for the purposes of this Act.

The statutory powers and functions of an adjudicator solely derives from statute.

The complainant relies upon the Equal Status Acts 2000-2015 to ground his complaint against the adjudicators who the complainant states are 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.”

Adjudication of complaints are 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.”

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.

The named Adjudicators were fulfilling adjudicative functions as set down in Statute and those functions are covered by the principle of judicial immunity. The Adjudicative investigation 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. While the complaint is made against the Commission; it relates to alleged unfavourable treatment by an Adjudicator(s) during a hearing and seeks to pursue a discrimination claim against the Commission based on vicarious liability and on their statutory responsibilities as detailed at section 10 of the Workplace Relations Act 2015 ad referenced at Section 2 of the Equal Status Act. As the complaints are misconceived against the Adjudicators, a vicarious liability cannot arise against the Commission; therefore, the claim cannot achieve the desired outcome and is legally misconceived.  I find that I have no jurisdiction to investigate this complaint

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.

Summary of Complainant’s Case:

Summary of Respondent’s Case:

Findings and Conclusions:

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:   02 December 2021

Workplace Relations Commission Adjudication Officer:  Brian Dalton

Key Words: