ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00012289

Parties:

Complaint(s):

Workplace Relations Commission Adjudication Officer:  Brian Dalton

Procedure:

In accordanceSection 25 of the Equal Status Act, 2000, following the referral of the complaints to me by the Director General, I inquired into the complaint and in the first instance considered as a preliminary matter if I have jurisdiction to hear the complaint and if the claim is properly before me for investigation

Background:

Preliminary Matter

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.

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:   22nd September 2021

Workplace Relations Commission Adjudication Officer:  Brian Dalton

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