Complainant

Respondent

Parties

Olumide  Smith

Iquate Limited

Representatives

  Self-Represented

Elizabeth Ryan Mason Hayes & Curran

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00007823-001

13/09/2016

It is  Complainant’s claim that he was discriminated against and harassed as a result of his race by the Respondent on 2 June 2016. The ES.1 Form was submitted by the Complainant on 29 July 2016 with the claim being submitted to the Workplace Relations Commission on 10 September 2016.

It is the Complainant’s case that on 2 June 2016, the Respondent’s representative made disrespectful, dismissive , disdainful, abusive and unfavourable comment “as you can see he (i.e. Mr Olumide Smith) is not from Ireland” in Tom Johnson House, Haddington Road, Dublin 4.

The Complainant states in his complaint form that the Respondent should be held vicariously liable for the disrespectful, dismissive, disdainful, abusive and unfavourable comment made by the Respondent’s representative on the day.

It was submitted by the Complainant that the Respondent was in breach of Article 2(3) of the Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin.

The Complainant rejects the position put forward by the Respondent in its submission of 14 February 2017.

The Respondent filed a replying submission dated 14 February 2017 denying any alleged harassment or allowed the Complainant to be harassed. It acted in good faith to the Complainant. The Respondent sought to have the claim dismissed on the basis that the Equal Status Act 2000 does not apply to the Respondent as it was not involved in

(a)    buying or selling goods that were available to the public or a section of the public;

(b)    were not using or providing services available to the public or a section of the public;

(c)     were not providing or using accommodation; or

(d)    were not providing  or managing an educational establishment

The Respondent submitted a second point that the claim was frivolous and vexatious

A second submission was filed on 18 July 2017 by their legal representative. An application was made pursuant to that s.22 of the Equal Status Act 2000-2015  to strike out the above claims on the basis that the claims were made in bad faith and/or are frivolous , vexatious and/or misconceived. The Respondent submitted that the Complainant does not have locus standi to bring a claim under the Equal Status Act 2000-2015 against the Respondent, as the Respondent was not involved in the disposal of goods and/or provision of services to the Complainant pursuant to Section 5 of the Act or disposal of premises and/or provision of accommodation , Section 6 of the Act nor is it (i) a club or (ii) educational establishment. The Respondent wrote to the Complainant on 21 April 2017 advising the Complainant of the above. In the circumstances the Respondent is seeking to have the claim struck out pursuant to Section 22 of the 2000 Act.

Section 5 (1) of the Equal Status Act 2000 provides:-

“5.—(1) A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public.”

For completeness Section 2 (1) of the Act defines what constitutes a “service” and “goods”:

“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;”

Goods are defined in as; “means any articles of movable property”

There is a question as to whether the Complainant in this case sought to access a “service” of the Respondent within the meaning of Section 2 (1) of the Act.

There is an onus on a Complainant seeking redress pursuant to the Act to establish that (a) he sought to access a service of the Respondents  that was available to the public generally and (b) he was discrimination against on at least one of the stated grounds of discrimination. 

On this basis it is necessary to consider whether Section 22 of the Equal Status Act 2000 is appropriate which provides for dismissal of claims:-

“22.— The Director may dismiss a claim at any stage in the investigation if he or she is of opinion that the claim has been made in bad faith or is frivolous or vexatious or relates to a trivial matter.”

It is widely accepted by the Courts that the terms are legal terms which can be often used interchangeably as held by the Barron J in Farley v Ireland, [1997] IESC 60

“So far as the legality of matters is concerned frivolous and vexatious are legal terms. They are not pejorative in the sense or possibly in the sense that Mr. Farley may think they are. It is merely a question of saying that so far as the plaintiff is concerned if he 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”.

In 2005, McCracken Jreiterated this in Fay v Tegral Pipes Limited & Ors [2005] 2 IR 261, stressing that the ‘real purpose’ of the courts’ inherent jurisdiction to dismiss frivolous or vexatious claims was firstly, to ensure that the courts would be used only for the resolution of genuine disputes and not for ‘lost causes’ and, secondly, that parties would not be required to defend proceedings which could not succeed.

The terms “frivolous or vexatious” were carefully considered by the High Court in Patrick Kelly v The Information Commissioner[2014] IEHC 479 . instructive as to the meaning of these terms:

“As a matter of Irish law, the term “frivolous or vexatious” does not, as noted by Birmingham J. in Nowak, necessarily carry any pejorative connotations but is more concerned with the situation where the litigation (or, in this instance, application) can be described as futile, misconceived or bound to fail.

Where a person engages in a pattern of litigation (or applications as in the present instance) which not only come within those descriptions but can be said to be actuated by ill-will or bad faith, such conduct may properly be described as vexatious.”

Irvine J in the High Court in Behan v McGinley [2011] 1 I.R. 47 and reiterated by Laffoy J  in Loughrey v. Dolan[2012] IEHC 578, relied on a decision of the Ontario High Court in Re Lang Michener and Fabian (1987) 37 D.L.R. (4th) 685 which listed a number of factors which tend to indicate that proceedings may potentially be vexatious in nature and thus amenable to being struck out. These factors, which are not meant to be exhaustive, are:

“• whether the issues in dispute are matters which have already been determined by a court of competent jurisdiction, i.e. res judicata;

• where it is obvious that an action cannot succeed, or if the action will lead to no possible good, or if no reasonable person can expect to obtain relief;

• where the action is brought for an improper purpose, including harassment and oppression of other parties, as opposed to asserting legitimate legal rights;

• where issues sought to be litigated tend to be rolled forward into subsequent actions and repeated and supplemented;

• where the person instituting the proceedings has failed to pay the costs of unsuccessful proceedings;

• where the plaintiff persistently takes unsuccessful appeals against judicial decisions.”

The Complainant’s claims relates to the opposing party in a hearing before the Labour Court and in particular, comments made by its representative made during the course of the hearing on 2 June 2016.

The Respondent was not offering a service within the meaning of Section 5 of the Act to the Complainant on 2 June 2016.

Having very carefully considered complaint before me against the Respondent, I am satisfied that it is a “frivolous or vexatious” claim for the purposes of Section 22 of the Equal Status Act 2000-2015 and consequently dismissing it. 

Equal Status – Good and Services- Frivolous or Vexatious- Dismissal of Claim