ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00010998

Parties:

Complaint(s):

Date of Adjudication Hearing: 

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, as the complaint is made against an Adjudication Officer who is engaged in the administration of justice and fulfilling a quasi-judicial role, as a preliminary matter, I first determined if I had jurisdiction to hear the parties and investigate the complaint

Background:

PRELIMINARY MATTER

Mr Smith makes a number of complaints:

• He should have been protected from the respondent’s solicitor’s bullying and harassment during the hearing
• The adjudicator breached his privacy rights by referencing other complaints that were lodged against other adjudication Officers.
• The term black should not have been used at the hearing and is offensive

An adjudication Officer is subject to judicial review both with regard to alleged bias and also on the application of fair procedures at the hearing. The adjudication functions and obligations as set out in the Equal Status 2000 as amended are subject to judicial oversight by the High Court and a decision is subject to appeal to the Labour Court. The matter referred to me under the Equal Status Act relating to the alleged failures of the adjudication officer; concerning perceived bias and how the hearing was conducted is misconceived; as his statutory function as an adjudication officer is not a service as defined under the Act, rather he is engaged in the administration of justice.  How he fufils this role is subject to judicial scrutiny. This means that the complainant may refer 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 an adjudicator performs his quasi-judicial functions.

Jurisdiction:

The complaints are made against the respondent in his capacity as an adjudicator and arise from interactions during the hearing. The nexus of the relationship between the complainant and the adjudicator 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 adjudicator 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.”

Adjudication of a complaint as provided under the Workplace Relations Act 2015  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.”

The complainant also alleges that a breach of his privacy rights occurred when it is alleged the adjudication officer referred to other complaints that he had made against other adjudication officers. While discretion does exist to anonymise Equal Status claims, it has been a practice to publish the names of both complainants and respondents and as recently determined by the Supreme Court, the administration of justice requires that proceedings are heard in public [Zalewski 2021 IESC 24].  If the complaint refers to perceived bias, that is a matter subject to Judicial Review.

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:

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 these claims are misconceived based on a misunderstanding of the law. The named adjudicator was 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. 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 complaints.  I find that I have no jurisdiction to investigate these complaints.

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:

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:   2nd December 2021

Workplace Relations Commission Adjudication Officer:  Brian Dalton

Key Words: