Complainant

Respondent

Parties

Mark J.  Savage

Musgrave Operating Partners Ireland Limited Supervalu

Representatives

none 

Mason Hayes & Curran, Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00038976-001

31/07/2020

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

CA-00040831-001

05/11/2020

In the claim under Complaint Reference CA-00038976, the Complainant alleges he was discriminated against, harassed and victimised by the Respondent, a retail store on the grounds of his religious beliefs by reason of the fact that the Respondent removed a notice which he posted on its community noticeboard on February 6th, 2020.

 In this notice, a prominent national politician is described as “a gay pervert” and it is stated that he “facilitates the sexual exploitation of innocent children by gay perverts…”

The Complainant says that despite the notice being immediately removed by an employee of the store, he made “several repeated attempts” to put it back on the noticeboard. 

The second complaint CA-00040831-001 arises from the referral of this incident to An Garda Síochána.

The complainant went to the respondent store and says he was discriminated in the provision of a service available to the general public and other customers and harassed and victimised by the Respondent on the same occasion.

This arose from his 'manifesting his religious beliefs as an evangelical Christian and Chief Elder of the Church of Swords Castle contrary to the relevant provisions of the Equal Status Acts'.

He had made a previous complaint against the Respondent under the same legislation, so it was aware of his religious beliefs.

The complainant had placed a document on a public notice board which was made available as a service to the shop's customers. The document was critical of homosexual activity and what he described as 'the evils manifested flowing directly from same'.

It was immediately removed from the notice board by an employee of the respondent.

The complainant says the removal amounted to direct and/or indirect discrimination, harassment and victimisation as defined by the Acts.

When the complainant made several attempts to replace It with identical material they too were removed.

He says he was upset and humiliated at this 'discrimination, harassment and victimisation' as he was acting with reasonable excuse and lawful authority at all times and exercising his common law, statutory, constitutional, human and equitable rights, 'manifesting' his religious beliefs.  

The Respondent did not reply to questions on Form ES1 sent to it and the Adjudicating Officer is requested to draw adverse inferences of fact against the Respondent for its failure to do so.

Regarding complaint CA-00040831-001, on May 6th, 2020 An Garda Síochána called to the complainant's home and advised him that the Respondent had made a complaint about him on the March 5th, 2020 concerning the placing of the notice referred to above.

This noticeboard was provided by the Respondent as a service generally available to the public.

The Respondent made the complaint to the Gardaí despite being aware of his religious beliefs as result of the previous complaints under the Equal Status Acts which also concerned his having placed notices on its noticeboard.

On each occasion the notices were placed the Respondent immediately removed them while he was still in the store, thereby discriminating, harassing and victimising him.

His obligation as an evangelical Christian to manifest his religious beliefs requires him to bear witness to truth by placing notices on the noticeboard.

The complainant was deeply upset by the complaint to An Garda Síochána, although he says they quickly concluded this complaint had no basis.

Consequently, all of this constitutes discrimination, harassment and victimisation by the Respondent on the Religion ground contrary to the Equal Status Acts.

In 2018, the Complainant submitted two complaints against the Respondent under the Equal Status Acts to the WRC.   The first related to alleged discrimination on the religious ground based on its refusal to allow the Complainant to post a notice on its noticeboard on April 10th 2018.

This Notice was posted around the time of the abortion referendum and referred to the aborting of unborn babies by LGBT parents due to what the Complainant described as their “conditions” (being LGBT). (Details were submitted in evidence).

Detailed submissions were made by the Respondent and its witnesses in that case as to the purpose and permitted use of the noticeboard as a community facility for posting notices under three headings “Looking For”, “Local Producers” and “Local Charity” (Photographic evidence was provided).

In particular, the Respondent explained that it does not permit notices which are offensive, discriminatory and inflammatory to be posted on its community noticeboard as employees and customer of the Respondent (including young people) have access.

The second claim brought previously by the Complainant (CA-000266350) was a claim of purported victimisation by the Respondent on foot of the initial complaint having been made.

In that claim, the Complainant contended that on September 4th, 2018 (some five months later) an employee of the Respondent who had tried to top up the Complainant’s electricity card but was unable to do so, accused the Complainant of using his brother’s card.

The Complainant alleged that the only plausible explanation as to why she made this allegation (which was strenuously denied) was that she must have seen the notice on the noticeboard on April 10th  2018 (although it had only been on the noticeboard for a couple of minutes at most) and was a possible “victim of having had an abortion(s) herself” and was trying to inflict “a psychological wound” on the Complainant.

Both claims were strenuously denied and robustly defended by the Respondent. In advance of the hearing, it sought to have the claims be dismissed on the basis that they were frivolous and/or vexatious and constituted an abuse of process.

No response was received, and it appears that no consideration was given to this request. A second request was made at the hearing to have the claims dismissed on the same basis but again, this application appears not to have been considered.

In the event neither of these claims were not upheld by the Adjudication Officer. The Complainant has appealed the decision (Complaint CA-00022534) relating to the notice to the Circuit Court. This appeal has yet to be heard and remains adjourned.

It will again be robustly defended by the Respondent.

In the current claim (Complaint CA-00038976), the Complainant alleges he was discriminated against, harassed and victimised by the Respondent on the grounds of his religious beliefs by reason of the fact that the Respondent removed another notice which he posted on its community noticeboard at its store on February 6th 2020.

In this notice, a prominent national politician was stated to be “a gay pervert” and it is stated that he “facilitates the sexual exploitation of innocent children by gay perverts…”

A copy of this notice was submitted in evidence together with a copy of the noticeboard policy in place at the time of the posting of the Complainant’s notices; the subject-matter of the Complainant’s current complaints.

The Complainant refers to the fact that despite the notice being immediately removed by an employee of the Store, he made “several repeated attempts” to put it back on the noticeboard. 

The Complainant is well aware of the permitted use of the noticeboard and of the Respondent’s position. The Respondent will not permit itself to be used as a platform by the Complainant to post discriminatory, offensive, inflammatory and defamatory material in its supermarkets.

It should be noted that in advance of posting the notice relating to the national politician on its noticeboard, on November 28th, 2019, some two weeks after the hearing of the initial complaints at the WRC, the Complainant posted another notice on the same noticeboard.

In this notice, which was posted during the course of a local election campaign, two of the candidates were alleged to be “Child Sex Offenders”. Again, this notice was immediately removed by the Respondent.

It should also be noted that when the Complainant made his repeated attempts to post the notices and when challenging the Respondent’s right, and indeed duty to remove them, he engaged in unruly and harassing behaviour towards the Respondent’s employees.

The Complainant has caused anxiety, offence and upset to the respondent’s employees in the Store including by taking photographs of an employee, shouting at employees, threatening employees that their actions in taking down his notices were going ‘to cost’ the employees and the Respondent.

The Respondent made a complaint to An Garda Síochána in March 2020 (in advance of Form ES.1 relating to the first of the new complaints being issued in April 2020). The Respondent furnished both of these notices to An Garda Síochána (together with the subsequent notice which was submitted in evidence).

It is this complaint to An Garda Síochána that is the subject-matter of the next complaint made by the Complainant (CA-00040831).

In this claim, the Complainant alleges that he was discriminated against, harassed and victimised by the Respondent on the grounds of his religious beliefs as a result of the Respondent’s complaint to An Garda Síochána on March 5th, 2020.

This concerned what the Complainant contends was his having manifested “his religious beliefs when being an Evangelical Christian and Chief Elder of the Evangelical Christian Church of Swords Castle by my having placed an important religiously motivated factually accurate message on the noticeboard of its grocery store…”

The Complainant further asserts that the Respondent in making this complaint to the Gardaí made a “malicious meritless complaint”.

He further asserts that “An Garda Síochána thereafter quickly concluded this complaint had no basis upon which for to prosecute me after I agreed to provide them with a voluntary statement at Swords Garda station the following day.”

Following the posting of the above notices, the Complainant attended the Respondent’s Swords store on numerous occasions, even after An Garda Síochána had commenced its investigation of the Respondent’s complaint and at a time when owing to the conduct of the Complainant, his right to attend the store had been revoked.

On August 10th, 2020, an employee of the Respondent received an email from the Complainant, threatening to protest outside Swords Pavilions Shopping Centre with offensive placards stating that ‘[Names of employees] OF MUSGRAVE/SUPERVALU ARE BOTH CRIMINAL CHILD SEX OFFENDERS’.

The Complainant went on to say that he would then make “a complaint with said EVIDENCE naming YOU and your employers/masters to An Garda Síochána for having committed and continuing to commit said disgusting criminal child sex offence”.

On August 21st, 202, the Complainant attended the Respondent’s store and posted a further notice on the noticeboard.

In this Notice, the Complainant warns the public that two named employees of the Respondent together with the Respondent itself are “Child Sex Offenders contrary to Section 8 of the Criminal Law (Sex Offences) Act 2017”. 

One of those named has never met the Complainant and the other has had limited interaction with the Complainant. It appears that the foregoing is sufficient in the Complainant’s eyes to be considered “Child Sex Offenders”.

A copy of this Notice was submitted in evidence and it has also been placed on the Complainant’s public Facebook page (where it is believed it remains).

This is now a Garda matter.

COMPLAINT REFERENCE CA-00038976

The Respondent respectfully contends that the Complainant’s claim of discrimination, harassment and victimisation relating to the posting of the Notice on February 6th, 2020 (relating to the national politician) has been made in bad faith.

The Complainant was aware in advance of posting this notice of the permitted use of the noticeboard at the Swords Store.

The Complainant knew that the Respondent would remove this notice. He appears to be inviting such a response with a view to issuing fresh discrimination proceedings against the Respondent.

As mentioned above, he engages in conduct that is causing offence and upset to employees of the Respondent and entirely lacks insight into his conduct (this is evidenced by his placing the defamatory notice in store (and on Facebook) in August 2020).

The Respondent respectfully submits that claim CA-00038976 is frivolous and vexatious.

The definition of ‘vexatious’ in Collins English Dictionary & Thesaurus 21st century edition is as follows: “(of a legal action or proceedings) instituted without sufficient grounds, especially so as to cause annoyance to the defendant”.

The meaning for ‘frivolous’ in the New Shorter Oxford English Dictionary, 1993, includes of “little or no importance, having no reasonable grounds, lacking seriousness or sense”.

Barron J stated in Farley v Ireland Supreme Court [1997] 5 JIC 0104 that:

“If [a plaintiff] has no reasonable chance of succeeding then the law says that it is frivolous

to bring the case. Similarly it is a hardship on the defendant to have to take steps to defend

something which cannot succeed and the law calls that vexatious.”

The meaning of the words “frivolous or vexatious” as used in the context of s.10(1)(b)(ii) of the Data Protection Act 1988 (as amended) was considered by Birmingham J in Nowak v Data Protection Commissioner [2012] IEHC 449 where he stated that:

“[f]rivolous, in this context does not mean only foolish or silly, but rather a complaint that

was futile, or misconceived or hopeless in the sense that it was incapable of achieving the

desired outcome.”

This description was referred to by Irvine J in her judgment in the Court of Appeal in Fox v McDonald [2017] IECA 189 where she stated that:

“[t]he word ‘frivolous’ when used in the context of O.19 r,28 is usually deployed to describe proceedings which the court feels compelled to terminate because their continued existence cannot be justified having regard to the relevant circumstance.”

She added as follows:

“Proceedings which are regularly struck out as “frivolous” or “vexatious” are proceedings clearly destined to cause irrevocable damage to a defendant, such as where a defendant is asked to defend the same claim for a second time or where a plaintiff seeks to avail of the scarce resources of the courts to hear a claim which has no prospect of success.”

The contention that the Complainant, in not being permitted to post a notice on the Respondent’s supermarket community noticeboard stating that a public figure is a “gay pervert” who “facilitates the sexual exploitation of innocent children by gay perverts”, has been subjected to discrimination, harassment or victimisation by the Respondent under the ESA is patently frivolous and vexatious within the meaning assigned thereto by Irvine J. and Birmingham J. (as they then were).

The Respondent disputes that in posting the notices, the Complainant is manifesting religious beliefs.

It is the Respondent’s contention that the Complainant is publishing defamatory, obscene, abusive and discriminatory material.

The Respondent did not directly discriminate against the Complainant. No person, of any religion or none, would be permitted to place such a Notice on the Respondent’s noticeboard.

Even if the Complainant could establish that he was indirectly discriminated against on the grounds of his religion the actions of the Respondent in refusing to allow the Complainant place the notice on the noticeboard are clearly in furtherance of a legitimate aim and the means of achieving that aim were appropriate and necessary.

There are countless legitimate aims that the Respondent relies upon, in particular (but not limited to):-

a) the protection of its employees and patrons from harassment and discrimination;

b) the survival of its business;

c) the avoidance of a breach of the criminal law (under the Criminal Justice (Public

Order) Act 1994 or under the Prohibition on Incitement to Hatred Act 1989;

d) the avoidance of a breach of civil law (by way of example only; publishing a defamatory statement, failing to provide a safe place of work under the Safety Health and Welfare at Work Acts, engaging in harassment or discrimination under the Employment Equality Acts, an employee breach of contract or personal injuries action);

e) the maintenance of public order at its premises;

f) the maintenance of its commercial relations with suppliers, customers etc.

Furthermore, the Complainant is in effect attempting to litigate the same claim again in the within complaint as Complaint Reference CA-00022534. The Complainant’s previous  discrimination claims arose under very similar circumstances and were not upheld by the WRC. Notwithstanding this, he persists in the same behaviour of posting defamatory and offensive material and in issuing repeated discrimination claims against the Respondent.

He has also litigated similar claims against other Respondents before the WRC, and we understand that he has been unsuccessful on each occasion.

It is further respectfully submitted that the Complainant’s claim is misconceived as it is incorrectly based on law. The Complainant continues to be of the belief that he is entitled to use the Respondent’s store noticeboard to post material that is defamatory, offensive, and discriminatory.

The notice posted on February 6th, 2020 is offensive not only to the Respondent but undoubtedly to the individual the subject-matter of the notice and to employees and customers exposed to it.

The Complainant is ill-informed in respect of his legal and constitutional rights (as evidenced by his many unsuccessful complaints made to the WRC).  Despite the repeated failure of his complaints before the WRC, he does not accept that he is ill-informed of his legal entitlements and he appears to question the integrity and qualifications of the various Adjudication Officers assigned to his complaints.

It is manifestly unfair to the Respondent and its employees/witnesses to have to defend the claims. Further time and costs should not need to be incurred to prepare for and attend at hearing of these claims.

The Respondent in its claim that this complaint is frivolous, vexatious, misconceived and made in bad faith also relies upon section 15 of the ESA. This section provides that:

“nothing in this Act, prohibiting discrimination shall be construed as requiring a person to…provide services…in circumstances which would lead a reasonable person to the belief that, on the grounds other than discriminatory grounds…the provision of the services…to the customer would produce a substantial risk of criminal or disorderly conduct or behaviour or damage to property at or in the vicinity of the place in which the…services are sought…”

With reference to the Respondent’s reliance on section 15 of the ESA, it is understood that this is a matter which is currently with the Gardaí and that a prosecution may follow.

The Respondent also relies upon section 14 of the ESA. Section 14(1)(a) provides that:

“Nothing in this Act shall be construed as prohibiting the taking of any action that is required by or under any enactment or order of the Court.”

By way of example only, the Respondent is obliged under section 8 of the Safety, Health and Welfare at Work Acts, in so far as is reasonably practicable to ensure the safety, health and welfare of its employees, which includes an obligation to manage and conduct work activities in such a way as to ensure, in so far as is reasonably practicable the safety, health and welfare at work of its employees and to prevent in so far as is reasonably practicable, any improper conduct or behaviour that is likely to put the safety, health or welfare of his/her employees at risk.

Evidence is set out above of the effect of the Complainant’s conduct on the Respondent’s employees.

 It is noteworthy that it is an offence under section 77 of the Safety, Health and Welfare at Work Acts for an employer to fail to discharge its duty under section 8.

In the claim under Complaint Reference CA-00040831, relating to the report to An Garda Síochána the Complainant also asserts that the Respondent in making this complaint to the Gardaí made a “malicious meritless complaint”.

He further asserts that “An Garda Síochána thereafter quickly concluded this complaint had no basis

upon which for to prosecute me after I agreed to provide them with a voluntary statement at Swords Garda station the following day.”

The Respondent says that, it is misconceived as incorrectly based in law. It is submitted that the WRC in giving effect to the provisions of the ESA has no jurisdiction, as a creature of statute, to  investigate this type of complaint. It does not come within the remit of the ESA.

Whether a complaint to An Garda Síochána is malicious or meritless is a matter for An Garda Síochána. It is submitted that given that criminal charges have been proffered against the Complainant that no such claim can be maintained.

Secondly, as stated above the Respondent does not accept that in posting these notices that the complainant is manifesting religious beliefs.

In any event the complaint is made in bad faith and is entirely inaccurate. 

In addition, the respondent submits that this complaint is frivolous and vexatious.

The respondent patently did not discriminate nor harass nor victimise the complainant by making a complaint to An Garda Síochána on 5 March 2020.

It did so by reason of repeated unacceptable and potentially unlawful conduct on the part of the complainant (in this regard, the Respondent had concerns that the material posted by the complainant could involve the commission of a criminal offence).

It also made the complaint in the hope of avoiding further upset and offence being caused to its employees. This ultimately did not transpire as the complainant some months later repeatedly posted the notice defaming its employees and its business.

The facts of the matter her are not in dispute.

At the centre of the complaint is the noticeboard which is a familiar site in many supermarkets, offering a range of services from small businesses, items for sale, babysitting or gardening services and the like.

In this case the respondent classified the categories on the notice board as “Looking For”, “Local Producers” and “Local Charity”.

The complainant claimed that his notice fell under the ‘Looking For’ category.

The text of the first notice is referred to in the respondent’s submission. It has two elements.

One is a homophobic slur on a prominent politician who is a household name and who will not be further identified given the nature of the quite unfounded allegations of such a serious nature against him.

It hardly needs stating that homosexuality is decriminalised in Ireland and is but one part of the many which contribute to the matrix of human relationships in our society.

However, it did not stop there. It proceeded to allege criminal wrongdoing of the vilest nature; in that it was stated the named politician “facilitates the sexual exploitation of innocent children by gay perverts…”

While not directly relevant to the hearing of these specific complaints, the complainant was asked about similar, entirely unjustified attacks he made on the respondent’s employees which formed part of an earlier complaint (and which are referred to in the respondent’s submission).

In perhaps the most outrageous incident of all (in that earlier case) the complainant asserted that two of the respondent’s employees were ‘child sex offenders’ and separately that two candidates in the local elections (one of them also a national politician other than the one referred to above) were sex offenders.

There is not the remotest suggestion, even by the complainant that these allegations are true.

He nonchalantly, and without the slightest indication of any insight into the gravity of his assertion, confirmed that he considers the use of such language justified in the case of a person who displays conduct of which he disapproves, or who obstructs him in any way, in the pursuit of his ‘manifestation’ of religious beliefs.

Public figures are often the target of vigorous adverse comment, sometimes involving criticism of, their policy on this or that issue, sometimes it can veer into disrespectful or forcefully expressed comment but most of this is within the bounds of a (just about) tolerated set of parameters.

In the earlier case, the respondent’s employees are private citizens carrying out their work within the limits set for them by their employer. They have an entitlement to dignity and respect, to their good name and privacy which, to judge from his responses on the basis of his response to questions at the hearing, is not a concept sufficiently understood by the complainant.

Indeed, he considers that he has an obligation to what he describes as ‘the truth’ to persist with such allegations, despite the raging contradiction that the allegations he made were entirely untrue.

But even this pales into insignificance when considered against unsupported allegations of criminal wrongdoing of the most vile and repugnant character against innocent citizens, whether or not they have a public profile.

The fact that the respondent’s practice and policy in relation to the use of the noticeboard was very well known to the complainant before this incident (and the subject of earlier WRC hearings) robs him of any defence. He knew exactly what the consequences would be of posting the notices.

Can the material posted be protected on the basis that they represented the expression of religious belief?

The protection of any action, expression of opinion, whether religious or otherwise is, even in a liberal and tolerant society, subject to some restraints. There is no absolute freedom and it is by definition affected by the right to freedom of others, and the law.

Some of these restraints can be gleaned from the comments above.

Nothing can interfere with the complainant’s right to hold any beliefs he choses, but where the expression, or as the complainant puts it, ‘manifestation’ of these beliefs conflicts with these restraints then they may cease to have the protection of the Equal Status Acts.

Ironically, many of these restraints have their origins in a philosophical tradition which espouses tolerance, love of one’s neighbour, forgiveness of ‘sin’ which form part of the values of many religions, including Christianity; that espoused by the complainant.

It is difficult territory when an Adjudicator is required to enter into an evaluation as to whether this or that belief represents a bona fide religious or otherwise protected view, and while that does arise occasionally it is not the issue in this case.

However, it is worth noting that when this matter has come up for decision at the UK EAT in Grainger v Nicholson [2009] UKEAT 0219_09_0311 the Tribunal, (which is at the equivalent level of the High Court) established the criteria that are relevant when deciding whether a belief qualifies for protection. The five, so-called Grainger criteria include factors such as that the belief must:

• be genuine;
• relate to a substantial aspect of human life; and
• attain a certain level of cogency, cohesion and importance.

The fifth condition, which is relevant to this case in addition to the points made above is that the belief must:

• be worthy of respect in a democratic society; not be incompatible with human dignity; and

not conflict with the fundamental rights of others.

If this is one valid determinant of religious belief, then it clearly also applies to actions purporting to be undertaken on foot of such beliefs, or in the course of practising (or manifesting’) them. The publication of unfounded allegations that a person ‘facilitates’ criminal wrongdoing against children, or worse again is actually guilty of criminal wrongdoing fails this test by some considerable distance.

It therefore cannot remotely be considered to be a protected expression of religious belief, when, as the respondent submitted the material may be defamatory, obscene, abusive and discriminatory.

The actions taken by the respondent were entirely correct and well justified in the circumstances to deal with what was a studied, pre-meditated act of provocation by the complainant, and which does not fall under the protection of the Equal Status Acts.

In relation to the second complaint, there is no basis either for a complaint in the referral of a matter by a citizen to An Garda Síochána, which will in due course determine what, if any, action should follow the complaint or the making of that complaint.

I accept the respondent’s submission that this is an entirely frivolous and vexatious complaint.

It is devoid of any merit and it is not upheld.

For the reasons set out above in respect of complaints CA-000388976-001 and CA-00040831-001 I find that the complainant was not discriminated against.

Discrimination, religion.