Complainant

Respondent

Parties

Olumide  Smith

Department of Business Enterprise and Innovation

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00027010-001

06/03/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00029771-001

09/07/2019

The complainant submits that the respondent and a named Adjudication Officer in the course of a WRC Adjudication Hearing subjected him to harassment in breach of the Equal Status Act.

The complainant has identified his complaint on the ES1 Form as relating to the conduct of adjudication proceedings between September 27th, 2018 and November 11th, 2018 and some detail is provided on the form.

He says that the respondent and a named Adjudication officer had subjected him to harassment on grounds of racial or ethnic origin and failed to apply the principle of equal treatment ‘in a circumstance that subjected him to unfavourable treatment’.

He complains further about not being provided with the respondents’ (in that case) submission prior to the hearing and makes various other complaints about the conduct of the hearing and the decision in the case.

This complaint is made against the Department of Business Enterprise and Innovation but, is linked to various complaints related to the arrangements for the hearing, specifically related to the conduct of the hearing by a named Adjudication Officer.

Finally, there are complaints in relation to the adjudication decision.

In its response to the service of Form ES1 the respondent replied as follows.

The complainant says that he has been victimisedonthegroundsofraceandvictimisation.

He has made this complaint against both the WRC and the Department. His complaints relate to the conduct of an Adjudication Officer of the Workplace Relations Officer during an Adjudication Hearing, and he appears to have named the Department also as he believes it to be vicariously liable for the actions of the WRC.

Without prejudice to the position that the Department or WRC may take on the claims made by Mr. Smith, the Department considers there to be jurisdictional issues that would prevent the WRC from hearing this case.

In this regard, the respondent refers to an Adjudication Decision taken on an earlier  claim made by Mr. Olumide Smith, against the Labour Relations Commission (as it then was).

In this earlier case, Mr. Olumide Smith claimed that the LRC discriminated against him on the ground of race contrary to Section 3(2)(h) of the Equal Status Acts 2000 to 2011, in terms of alleged racial bias by a named Rights Commissioner during the hearing of an employment rights complaint which the complainant had before him.

The Adjudication Officer concluded that he did not have jurisdiction to hear this case for two reasons:

Firstly, the adjudicative functions of a Rights Commissioner (now an AdjudicationOfficer)arecoveredbytheprincipleofjudicialimmunity.

The Adjudication Officer pointed out that for the duration of the existence of the Labour Relations Commission and its Rights Commissioner service, Rights Commissioners were independent office holders tasked with adjudicating employment rights complaints at first instance. He held that their decisions are therefore undoubtedly "judicial in character" (see paragraph 4.15 of the Decision).

He then refers to advice that the Labour Court received which refers to the decision of the Supreme Court in Beatty v The Rent Tribunal & Another.

In that case, the Supreme Court expressly considered whether statutory tribunals were entitled to enjoy immunity from suit and negligence similar to that provided to Judges.

TheSupremeCourt,bymajority,heldthatstatutorytribunalswereentitledtohavetheprincipleofjudicial immunityappliedtothem.

The Supreme Court held that the respondent in that case (the Rent Tribunal) was a statutory body exercising adjudicative duties in the public interest and provided it was acting bona fide within its jurisdiction it enjoyed immunity from suit in ordinary negligence.

The Supreme Court was particularly keen to emphasise that the Rent Tribunal performed a role akin to an arbitrator and its decisions were judicial in character and that the independence would be compromised if any duty of care was applied to it (see paragraphs 4.1-4.7 of the Decision).

Applying this case law to the case at hand, the Adjudication 0fficer concluded that Rights Commissioners' decisions are undoubtedly "judicial in character", as the Supreme Court put it in Beatty, and this locates their service squarely within the parameters established by the superior courts in that judgment.

Secondly, even if the complainant established that Rights Commissioner (or nowadays an Adjudication Officer) acted improperly or with mala fides - the Adjudication Officer held that he had no jurisdiction to hear such a complaint, since the WRC is a tribunal of limited jurisdiction established by statute which does not have any such jurisdiction.

There is no such provision in either the Workplace Relations Act 2015, as amended, or in the Equal Status Acts 2000-2015 that provides the WRC with such jurisdiction. The power to make any finding of this nature is the prerogative of the superior courts, in the context of the oversight they exercise over the lower courts and the public administration of this country by way of judicial review.

By virtue of the Decision, Smith v Labour Relations Commission, the Department asserts that the WRC has no jurisdiction to hear this complaint and that the appropriate avenue for seeking remedy available to Mr. Smith, is to bring judicial review proceedings should he choose to do so.

As the complaint places the conduct of a WRC hearing at the centre of the complaint (and has linked it separately as a respondent to this case but which is the subject of a separate Decision), and as the actions complained of primarily relate to the conduct of an Adjudication Hearing, it is necessary to start with the relationship between a complainant and an Adjudicator. That is based on the relevant statutory provisions that allow for the investigation of the complaint.

That investigation and determination made by the Adjudicator is referred to as quasi-judicial decision making. Section 40 of the Workplace Relations Act 2015 states:

Adjudication officers

40. (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 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.”

Olumide Smith v Labour Relations Commission (DEC-S2017-023) (the case referred to above by the respondent) is a case about alleged racial bias by a named Rights Commissioner during the hearing of an employment rights complaint.

The Adjudication Officer stated at 4.17:

“parties who are dissatisfied with the outcome or conduct of an adjudicative process, rather than being able to claim discrimination under the Equal Status Acts, have two remedies open to them: An appeal with regard to the outcome, and judicial review in the superior courts for alleged defects in process. I am satisfied that these were available to the complainant as they are to any other litigant. That he mistakenly chose to bring the within complaint instead is therefore his responsibility. I am satisfied that the Commission has no jurisdiction in this matter, and that the complaint is misconceived in law.”

To this reference to ‘the outcome or conduct of an adjudicative process’ might be added, the preparation for a hearing, in relation to which some elements of the complaint where made.

A party aggrieved by the non-receipt of any information, or who otherwise feels prejudiced or at a disadvantage in their preparation for a hearing has the additional opportunity to raise that at the hearing and seek an adjournment, and such time and opportunity to be provided with such additional information as they need.

Then they also have available to them the remedies referred to above, in particular the right to an appeal.

In addition to the cases referred to, the position regarding the immunity from suit of a statutory employment tribunal and an adjudicator has also been addressed in previous decisions, (see for example ADJs 4824, and 14768).

The named Adjudicator (in the related case) was fulfilling adjudicative functions as set down in statute and those functions are covered by the principle of judicial immunity. The complaints raised by the complainant against this specific respondent all fall to be considered by reference to that principle of immunity, in the context of the alternative remedies referred to above

This claim is misconceived as it is incorrectly based in law for three reasons. 

The first is that the complaints raised by the complainant against this specific respondent all derive from actions in respect of which the principle of immunity applies, as they form part of the adjudicative process, and especially noting of the alternative remedies referred to above.

Secondly, the Adjudicative investigation and the decision-making function of that role 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.

Thirdly, the named respondent has no liability for any of the actions of the adjudication service, which are in any event, as noted above, immune from suit. As a matter of logic and law there cannot be liability for actions in respect of which there is immunity.

I find that I have no jurisdiction to investigate the above complaints.

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 hearing at a statutory tribunal.

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. 

For the reasons set out above I dismiss Complaints CA-00027010-001 and CA-00029771-001.

Judicial Immunity