Complainant

Respondent

Parties

Olumide  Smith

Department of Jobs, Enterprise and Innovation

Representatives

 Chief State Solicitor's Office

Act

Complaint Reference No.

Date of Receipt

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

CA-00005127-001

28/07/2016

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

CA-00005127-002

28/07/2016

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 although the complaint has, at its source the conduct of proceedings at the Employment Appeals Tribunal.

In his complaint on the ES1 Form the complainant says that the EAT refused to allow him to use a Holy Book of his religion and also says that the EAT does not normally allow complainants to represent themselves during Hearings.

He said that the EAT Chairman spoke to him in a dismissive and disrespectful way.

He further says the EAT Decision Letter dated April 6th, 2016 disclosed ‘my name, address and identity however it failed to disclose equally the name, address and identity of the Respondent by name’ it also failed to disclose equally the names of the other two members of the Panel in a total of five persons who attended to the Hearing March 4th, 2016.’

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?

In its response to the service of Form ES1 the respondent stated;

The EAT is an independent statutory body under the aegis of the Department of Jobs, Enterprise and Innovation.

The Department has no role in the day-to-day functions of the EAT and as such cannot reply to the allegations made by the complainant and should not be attached to these proceedings

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.

It is very clear from this that the alleged acts or omissions being referred to were those of a statutory tribunal.

This is one of a large number of cases in which the complainant has made complaints about individual judges, the Courts Service and its employees, statutory tribunals and, as in this case the related Department.

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).

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.

The complainant is now seeking to imply to this respondent some sort of vicarious liability for actions of a statutory Tribunal, which the respondent above has denied.

This matter has been dealt with in a number of earlier cases.

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) 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.”

Based on all of the foregoing this claim is misconceived as it is incorrectly based in law.

The alleged conduct which is the source of this complaint relates to the conduct of a hearing at a statutory tribunal. But the Tribunal and its members were fulfilling adjudicative functions as set down in Statute and those functions are covered by the principle of judicial immunity.

The conduct of proceedings at the EAT 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.

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.’

Judicial, and quasi-judicial decision making, and the related conduct of tribunal 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 at the source of the complaint are not amenable to, and 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 complaints are misconceived and dismiss the complaint.

For the reasons set out above I find that complaints CA-00005127-001 and 002 are misconceived and they are dismissed.

Equal Status, immunity, misconceived