Complainant

Respondent

Parties

Olumide  Smith

Employment Appeals Tribunal

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-00005128-001

28/07/2016

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

CA-00005128-002

28/07/2016

This is one of a 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 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 he also claims that he was told that the EAT does not normally allow complainants to represent themselves during hearings. (Adjudicator Note, this is not correct. Any person could appear and advocate at a hearing before the EAT).

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

He 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 the hearing on March 4th, 2016.

The respondent did not make a substantive reply, its legal advisors indicating only that it awaited further submissions as promised by the complainant.

It is very clear from this complaint that the acts or omissions being referred to were those of a statutory employment 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, the statutory tribunals and their related departments.

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.

He is now seeking to pursue a complaint based on the conduct of proceedings at, and actions of a statutory tribunal.

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 Immunity of a Statutory Tribunal.

That complaint was also made under the Equal Status Acts about a different 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.”

This is a good articulation of the applicable law which I will follow in this case.

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

The Tribunal and its members were fulfilling adjudicative functions as set down in statute and those functions are protected 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.’

The alleged conduct which is the source of this complaint relates to the conduct of a hearing at a statutory tribunal.

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. 

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 so find that the complaint is misconceived and dismiss the complaint.

For the reasons set out above, I find that complaints CA-0005128-0001 and 002 to be misconceived and they are dismissed.