ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00012280
Parties:
| Complainant | Respondent |
Parties | Roberto Alamazani | BOI Customer Complaints |
Representatives |
|
|
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000 | CA-00015841-001 | 16/11/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000 | CA-00015842-001 | 16/11/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000 | CA-00015843-001 | 16/11/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000 | CA-00015844-001 | 16/11/2017 |
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:
The complainant states that he has been discriminated against by a person, organisation, company who provides goods, services or facilities. He brings a complaint against a Bank of Ireland Customer Complaints who are a work department or unit of Bank of Ireland Group. His grievances are as follows: CA-00015841 I am offended that an employee of Bank of Ireland, Emilie PEAT, provided false and misleading information to the WRC on 15/08/2017, in relation to a letter sent to her in December 2015. Communication in which she failed to respond. This is completely and utterly unacceptable. I feel demeaned, insulted and discriminated. It’s against the Law discriminating people as clearly stated under the Equal Status Acts 2000-2015. The way I have been treated is discriminating against me and victimizing me because I am black. I strongly believe that if I was white,the treatment will be different CA-00015842 I am offended that an employee of Bank of Ireland, Paul BISSETT, provided false and misleading information to the WRC on 15/08/2017, in relation to a letter sent to her in December 2015. Communication in which she failed to respond. This is completely and utterly unacceptable. I feel demeaned, insulted and discriminated. It’s against the Law discriminating people as clearly stated under the Equal Status Acts 2000-2015. The way I have been treated is discriminating against me and victimizing me because I am black. I strongly believe that if I was white, the treatment will be different CA-00015843 I am offended that an employee of Bank of Ireland, Liam HICKEY, after sending him the Equal Status Notification last year I received several communications from the Bank Solicitor stating that they did not receive it. This is a lie and it’s completely and utterly unacceptable. I feel demeaned, insulted and discriminated. It’s against the Law discriminating people as clearly stated under the Equal Status Acts 2000-2015. The way I have been treated is discriminating against me and victimizing me because I am black. I strongly believe that if I was white, the treatment will be different CA-00015844 I am offended that I received several communications from the WRC, coming from Emer Lumsden Solicitor stating that I did not send a copy of the Forms ES.1 in relation to a case for discrimination I filed against Bank of Ireland while the copies of it were sent to Liam HICKEY since 27/07/2016. This is completely and utterly unacceptable. This was also confirmed by the counselor representing the bank on 15/08/2017. It’s unacceptable. I feel demeaned, insulted and discriminated. It’s against the Law discriminating people as clearly stated under the Equal Status Acts 2000-2015. The way I have been treated is discriminating against me and victimizing me because I am black. I strongly believe that if I was white, the treatment will be different |
Preliminary Matter
CA-00015841
Jurisdiction:
The complaint is made against the respondent as a party to a complaint initiated by the complainant and the matters now complained of occurred during the hearing on the 15th of August 2017. He attaches vicarious liability to the Bank arising from the evidence given at the hearing by their employee. At section 36 of the Equal Status Act 2000 as amended it states:
36.—(1) Where, in the course or for the purposes of any investigation, mediation or hearing under this Part, or of any inquiry under Part V of the Employment Equality Act, 1998, any person discloses information to the Authority, the Director of the Workplace Relations Commission or any other person entitled to obtain it, the disclosure shall not give rise to any liability (in contract, tort or otherwise) on the part of the person making it.
This statutory provision as detailed in the Equal Status Act 2000 gives immunity to the respondent’s employee from any liability arising from giving evidence and to disclosure of information provided in the course of the investigation and so no vicarious liability can attach to the employer. I am satisfied that the matters complained of relate to disclosure of information as referenced at section 36(1) of the Equal Status Act.
Giving evidence at a Tribunal is not a service as defined under the Equal Status Acts at section 2 and therefore the complainant incorrectly relies on the Equal Status Act to bring complaints against the respondent.
It should be noted that at section 14 of the Act it states:
14.—(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 disclosure of information is required so that the matter complained of can be fairly and impartially determined. It is not within scope of the Equal Status Act to ground another complaint based on the evidence and disclosures made during an investigation.
This principle of witness immunity is fundamental to a fair and impartial hearing of a legal dispute and was fully elaborated upon in the High Court Case E. O’K. v. DK [2001] 1 I.R.:
“[2001] E. O'K. v. D.K. (Witness: immunity) 644
1 I.R. O'Sullivan J. H.C.
"However, there is at issue a far more fundamental point which is the need to give witnesses (and also indeed, the judge) in court, a privilege in respect of oral testimony and also with regard to affidavits and documents produced in the course of a hearing. Such persons, either witnesses or those swearing affidavits, are given an immunity from suit. Otherwise, no judge could go out on the bench and feel that he or she could render a judgment or say anything without risk of suit. Similarly, witnesses would be inhibited in the way they could give evidence. The price that has to be paid is that civil actions cannot be brought against witnesses even in a very blatant case, which of course this case is not, but even in a case of perjury - which would be such a case - the law says that an action cannot lie …
The necessity to give immunity in respect of oral testimony and documentary evidence in courts was so well established at the time the Constitution came into force that it was not thought necessary to provide expressly for it in the way that an absolute privilege is given in respect of utterances in the chamber to all members of Dáil Éireann and Seanad Éireann; cf. Article 15.12."
The complainant brings this complaint under the Equal Status Act 2000 as amended against another party in a dispute that the complainant initiated; however, the matter complained of is not a service as defined under the Act. This complaint is misconceived as it is incapable of achieving the desired outcome by relying on the Equal Status Act. A witness both under the Act and indeed as a core principle of administering justice is immune from suit. The respondent employer in these circumstances cannot be attached with vicarious liability as none arises. Therefore, this case is misconceived as the statutory provisions being relied upon cannot be used to bring a claim against a witness or information given to the Workplace Relations Commission as part of an investigation .
Section 22 of the Equal Status Act 2000 as amended states that a claim at any stage may be dismissed if an opinion is formed that the complaint is misconceived. As I have formed the opinion that the claim is misconceived pursuant to section 22, I dismiss the claim.
CA-00015842
Jurisdiction:
The complaint is made against the respondent as a party to a complaint initiated by the complainant and the matters now complained of occurred during the hearing on the 15th of August 2017. He attaches vicarious liability to the Bank arising from the evidence given at the hearing by their employee. At section 36 of the Equal Status Act 2000 as amended it states:
36.—(1) Where, in the course or for the purposes of any investigation, mediation or hearing under this Part, or of any inquiry under Part V of the Employment Equality Act, 1998, any person discloses information to the Authority, the Director of the Workplace Relations Commission or any other person entitled to obtain it, the disclosure shall not give rise to any liability (in contract, tort or otherwise) on the part of the person making it.
This statutory provision as detailed in the Equal Status Act 2000 gives immunity to the respondent’s employee from any liability arising from giving evidence and to disclosure of information provided in the course of the investigation and so no vicarious liability can attach to the employer. I am satisfied that the matters complained of relate to disclosure of information as referenced at section 36(1) of the Equal Status Act.
Giving evidence at a Tribunal is not a service as defined under the Equal Status Acts at section 2 and therefore the complainant incorrectly relies on the Equal Status Act to bring complaints against the respondent.
It should be noted that at section 14 of the Act it states:
14.—(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 disclosure of information is required so that the matter complained of can be fairly and impartially determined. It is not within scope of the Equal Status Act to ground another complaint based on the evidence and disclosures made during an investigation.
This principle of witness immunity is fundamental to a fair and impartial hearing of a legal dispute and was fully elaborated upon in the High Court Case E. O’K. v. DK [2001] 1 I.R.:
“[2001] E. O'K. v. D.K. (Witness: immunity) 644
1 I.R. O'Sullivan J. H.C.
"However, there is at issue a far more fundamental point which is the need to give witnesses (and also indeed, the judge) in court, a privilege in respect of oral testimony and also with regard to affidavits and documents produced in the course of a hearing. Such persons, either witnesses or those swearing affidavits, are given an immunity from suit. Otherwise, no judge could go out on the bench and feel that he or she could render a judgment or say anything without risk of suit. Similarly, witnesses would be inhibited in the way they could give evidence. The price that has to be paid is that civil actions cannot be brought against witnesses even in a very blatant case, which of course this case is not, but even in a case of perjury - which would be such a case - the law says that an action cannot lie …
The necessity to give immunity in respect of oral testimony and documentary evidence in courts was so well established at the time the Constitution came into force that it was not thought necessary to provide expressly for it in the way that an absolute privilege is given in respect of utterances in the chamber to all members of Dáil Éireann and Seanad Éireann; cf. Article 15.12."
The complainant brings this complaint under the Equal Status Act 2000 as amended against another party in a dispute that the complainant initiated; however, the matter complained of is not a service as defined under the Act. This complaint is misconceived as it is incapable of achieving the desired outcome by relying on the Equal Status Act. A witness both under the Act and indeed as a core principle of administering justice is immune from suit. The respondent employer in these circumstances cannot be attached with vicarious liability as none arises. Therefore, this case is misconceived as the statutory provisions being relied upon cannot be used to bring a claim against a witness or information given to the Workplace Relations Commission as part of an investigation .
Section 22 of the Equal Status Act 2000 as amended states that a claim at any stage may be dismissed if an opinion is formed that the complaint is misconceived. As I have formed the opinion that the claim is misconceived pursuant to section 22, I dismiss the claim.
CA-00015843
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—,
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 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,
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:
- — (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.
CA-00015844
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 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,
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:
- — (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
CA-00015841 The complainant brings this complaint under the Equal Status Act 2000 as amended against another party in a dispute that the complainant initiated; however, the matter complained of is not a service as defined under the Act. This complaint is misconceived as it is incapable of achieving the desired outcome by relying on the Equal Status Act. A witness both under the Act and indeed as a core principle of administering justice is immune from suit. The respondent employer in these circumstances cannot be attached with vicarious liability as none arises. Therefore, this case is misconceived as the statutory provisions being relied upon cannot be used to bring a claim against a witness or information given to the Workplace Relations Commission as part of an investigation . Section 22 of the Equal Status Act 2000 as amended states that a claim at any stage may be dismissed if an opinion is formed that the complaint is misconceived. As I have formed the opinion that the claim is misconceived pursuant to section 22, I dismiss the claim. CA-00015842 The complainant brings this complaint under the Equal Status Act 2000 as amended against another party in a dispute that the complainant initiated; however, the matter complained of is not a service as defined under the Act. This complaint is misconceived as it is incapable of achieving the desired outcome by relying on the Equal Status Act. A witness both under the Act and indeed as a core principle of administering justice is immune from suit. The respondent employer in these circumstances cannot be attached with vicarious liability as none arises. Therefore, this case is misconceived as the statutory provisions being relied upon cannot be used to bring a claim against a witness or information given to the Workplace Relations Commission as part of an investigation . Section 22 of the Equal Status Act 2000 as amended states that a claim at any stage may be dismissed if an opinion is formed that the complaint is misconceived. As I have formed the opinion that the claim is misconceived pursuant to section 22, I dismiss the claim. CA-00015843 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. CA-00015844 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. |
Dated: 20th September 2021
Workplace Relations Commission Adjudication Officer: Brian Dalton
Key Words:
Misconceived |