Complainant

Respondent

Parties

Olumide  Smith

Robert Dooney, James Sherwin and David O’Riordan practising under the style and title of Sherwin O’Riordan

Representatives

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00014279-001

20/09/2017

It is the Complainant’s claim that on 25 May 2017 he was harassed or was allowed to be harassed by the Respondents on the grounds of race. The Complainant states he is of Yoruba racial or ethnic origin with the Respondents are of Caucasian racial or ethnic origin.

During the course of a hearing before Workplace Relations Commission on 25 May 2017 the Complainant objected to the Adjudication Officer’s description to which Robert Dooney of the Respondent, “interrupted inappropriately my oral submission at a point in time when he issued the abusive, derogatory and foul word “nonsense” at me.”

The Complainant states that the Respondent was liable for the threatening, intimidating and abusive treatment of him during the hearing of the original hearing.

The Complainant submitted a Form ES.3 on 20 September 2017.  

The Complainant relied on the European Convention on Human Rights (ECHR) to support his case.

The Respondents replying ES.2 was sent on 31 July 2017. It stated that during the hearing on 25 May 2017 that Complainant during the course of his submission made the point that no cars, with the exception of his own vehicle, had been clamped in Dublin 22 on the morning of 10 March 2015. Robert Dooney of the Respondent interjected, describing this statement as nonsense and attempted to refer the Adjudication Officer to a copy of an Immobilisation Report of 10 March 2015. 

It is the Respondents case that the Complainant took issue when Mr Dooney used the word “nonsense” at the hearing. When the Respondent sought permission to explain the point, the Adjudication Officer asked that the Complainant conclude his submission. 

In outlining its reason for doing so the Respondent stated that this matter in which, he represented its client, came before the WRC on 25 May 2017 was already heard and ruled upon by the District Court on 17 September 20215 and the Circuit Court (on appeal) on 11 December 2015. The Respondent client’s defence to the District Court claim referred to an Immobilisation Report of 10 March 2015 which clearly showed another car had been clamped in Dublin 22 on 10 March 2015. Despite this the Complainant submitted to the Adjudication Officer on 25 May 2017 that no other vehicle had been immobilised in that estate on that date. This is the Respondent’s reason as to why he interjected.

The Respondents submitted it was not uncommon for parties to interject at such hearings particularly in the circumstances where one party is relying on the mistaken belief that something did or did not occur when documentary evidence is available to the contrary.

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 Respondents 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 a practising Solicitor who was acting on the instruction of his voice in defence of a claim brought by the Complainant himself before the Workplace Relations Commission on 27 May 2017.

The Respondents were not offering a service within the meaning of Section 5 of the Act to the Complainant at the WRC hearing on 27 May 2017.

Having very carefully considered complaint before me against the Respondents I am satisfied that it is a “frivolous or vexatious” claim for the purposes of Section 22 of the Equal Status Act 2000-2004 and consequently dismissing it. 

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