ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00011146

Parties:

Complaint:

Date of Adjudication Hearing: 

Workplace Relations Commission Adjudication Officer:  Brian Dalton

Procedure:

In accordance with Section 25 of the Equal Status Act, 2000,following the referral of the complaint to me by the Director General, I inquired into the complaint and firstly considered if what is complained about is within scope of the Equal Status Act 2000 as amended.

Background:

Preliminary Matter:

Jurisdiction:

Before a party can bring an Equal Status Complaint they are required under section 21:

(2) Before seeking redress under this section the complainant—

( a) shall, within 2 months after the prohibited conducted is alleged to have occurred, or, where more than one incident of prohibited conduct is alleged to have occurred, within 2 months after the last such occurrence, notify the respondent in writing of—

And section 14 of the Act states:

(1) Nothing in this Act shall be construed as prohibiting—

(a) the taking of any action that is required by or under—

(i) any enactment or order of a court,

The ES. 1 form is the notice sent to the respondent and is required as evidence, so that section 21 is satisfied.

The respondent wrote to the Workplace Relations Commission to state that they had not received notice and in turn that correspondence would be copied to the complainant. It is this exchange of correspondence that forms the factual basis of the discrimination case, as that exchange is attributed to racial prejudice.

The exchange of such a document between the parties’ forms part of the investigation of the complaint. The investigation of a complaint is not a service as defined at section 2 of the Equal Status Act 2000. Section 2 of the Act states:

“ 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 notbrian b 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,

The exchange of correspondence between the parties arising from a dispute is a requirement of a fair and transparent process. The complainant takes exception to the respondent stating that they had not received the required notification. Such an exchange of correspondence is the everyday currency of legal litigation. It does not constitute a service as defined under the Equal Status Act as amended.

The Equal Status Act does not provide the complainant with a line of attack against the respondent in so far as the matters complained of relate to the proper and permissible defence of a claim. To hold that proposition would be absurd. The complainant cannot succeed in his claim as either in error or because of a misunderstanding that the Equal Status Act provides a way to bring claims against a defending party based on dislike of what they have written or against the Workplace Relations Commission because they copied him with the respondent’s correspondence.

The exchange of correspondence in this case solely arises from the complainant making a complaint against the respondent; it does not arise from the provision of a service and therefore the Equal Status Act provides no redress and the claim being made is not capable of achieving its desired outcome. As I have formed that opinion and having regard to section 22 of the Act that states:

22. — (1) The Director of the Workplace Relations Commission may dismiss a claim at any stage if of opinion that it has been made in bad faith or is frivolous, vexatious or misconceived or relates to a trivial matter.

I determine that the complaint is misconceived because the matter complained of only arises from a legitimate defence of a claim and reliance on statutory notice periods. Section 14 specifically precludes claims that ‘nothing in this act shall be construed as prohibiting that taking of any action that is required by or under any enactment or order of court’. The complainant has no cause of action against the complainant as they do not constitute a service as defined in the act. As I have formed the opinion that the complaint is misconceived, I dismiss the claim.

Decision:

Section 25 of the Equal Status Acts, 2000 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act. However, section 22 of the Act provides that a complaint may be dismissed at any time if an opinion is formed that the claim is misconceived.

Dated:   20th September 2021

Workplace Relations Commission Adjudication Officer:  Brian Dalton

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