ADJ-00014292

ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00014292

Parties:

Complaint:

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 gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

Preliminary Matter

Jurisdiction:

The complaint is made against the respondent in her capacity as an Adjudicator. The complainant states that ‘I am offended by your correspondence dated 17/11/2017’.  The correspondence referred to relates to Adjudication decision 000014292:

“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.

The claim is based on an advert for a house rental in Shannon, Co. Clare which was placed on a property website. The advert stated “rental allowance not accepted.” This advert was on the website in February 2016.

The Respondents deny that the house was available for rent in February 2016 as it had been sold to a tenant that had been living there for a number of years previously. Furthermore they deny telling the Complainant that he was not eligible to rent the house due to him being in receipt of rent allowance.

The Complainant lives in Dublin. At the hearing, as part of the Adjudicator’s investigation a number of questions were put to the Complainant.

The Complainant would not provide any reasons as to why he wanted to move from his current address in Dublin other than citing personal reasons and stating that it was his constitutional right to move freely around the country.

When asked by the Adjudicator if he could recall the location of the house that he was seeking to rent, he could neither recall the county or the region of the country that it was located. He could not answer if there were public transport links there or what the nearest large urban area was. For this Adjudicator this cast doubts on his credibility.

After re-reading his complaint form he remembered that the house was located in Shannon.

The Complainant was then asked to recall when the telephone conversation with the Respondent took place. He was asked to do so without considering his written submission. This was requested by the Adjudicator in order to test the credibility of the Complainant’s evidence. The Complainant took exception to this and left the hearing without presenting his case. This was despite being told by the Adjudicator that if he failed to remain and prosecute his case that his case would be dismissed for want of prosecution.

The Complainant left the hearing.

Consequently this case fails for want of prosecution.

Dated:   17 November 2017

Workplace Relations Commission Adjudication Officer: Emile Daly”

The nexus of the relationship between the complainant and the adjudicator is based on the relevant statutory provisions that allow for the investigation of the complaint. That investigation of the complaint by the Adjudicator is referred to as the administration of justice or as quasi-judicial decision making. Section 40 of the Workplace Relations Act 2015 states:

Adjudication officers

40. (1) Subject to subsection (2), the Minister may appoint—

(a) such and so many of the members of the staff of the Commission, and

(b) such and so many other persons,

as he or she considers appropriate to be an adjudication officer or adjudication officers for the purposes of this Act.

The statutory powers and functions of an Adjudicator solely derives from statute.

The complainant relies upon the Equal Status Acts 2000-2015 to ground his complaint against the Adjudicator who the complainant states is a person, organisation, company who provides goods, services or facilities and that when providing that service he was discriminated on the ground of race.

Section 2 of the Equal Status Act 2000 as amended defines a service as:

“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;

Section 14 of the Equal Status Act 2000 as amended states that:

Certain measures or activities not prohibited.

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

Judy Walsh in the Equal Status Acts 2000-2011, 2012 edition, Blackhall Publishing, at page 43 states:

“Equivalent UK provisions have been subject to fairly extensive interpretation (McColgan, 2005, pp 255-285; Monaghan, 2007, pp 505-508). In a number of cases UK courts concluded that ‘services’ were confined to acts of similar kind to acts that might be carried out by a private person. Therefore, functions that are of a public law nature (i.e. enforcement, regulatory and control functions) have fallen outside the scope of that country’s non-discrimination legislation.”

Adjudication of a complaint as provided under the Workplace Relations Act 2015 is not a service as defined at section 2 of the Equal Status Act 2000 as amended such as access to financial services; travel; cultural activities and recreational services.

In Fogarty v Employment Appeals Tribunal (DEC-S2009-087) the Equality Officer concluded:

4.8 I also find that the adjudication and decision making function of the respondent under the Unfair Dismissals Acts is not a "service" or "facility" which is available to the public. The respondent is exercising a quasi-judicial decision making function which is not subject to the terms of the Equal Status Acts. Therefore I find that any aspect of this complaint which refers to the decision making function of the respondent is misconceived

In Adj-00011410 a preliminary matter was raised concerning the Judicial Immunity of a Statutory Tribunal. This complaint was also made under the Equal Status Acts about another statutory tribunal.  In relying on the Supreme Court judgement of Beatty v the Rent Tribunal [2006] 2IR 191, the Adjudication Officer determined that he had no jurisdiction to hear the complaint. In Beatty the Supreme Court approved of Lord Kilbrandon’s remarks concerning the immunity of a Statutory Tribunal :

I think it appropriate to cite a passage from the speech of Lord Kilbrandon in the House of Lords in Arenson v. Casson Beckman Rutley & Co. (for some reason named in the English Court of Appeal as Arenson v. Arenson) [1975] 3 All ER 901 at 918

“To these tribunals the citizen is bound to go if he wants to maintain particular rights or to obtain an opinion carrying authority ultimately enforceable by the public agencies; like as before them the citizen must appear to answer claims or complaints against him. (This is subject to the rights citizens may have to make agreements one with another to submit their civil differences elsewhere). The citizen does not select the judges in this system, nor does he remunerate them otherwise than as a contributor to the cost of government. The judge has no bargain with the parties before him. He pledges them no skills. His duties are to the state: it is to the state that the superior judge at least promises that he will do justice between all parties and behave towards them as a judge should. I do not suppose that there is any English lawyer, and he would be a bold Scottish lawyer, who would say that here there is a contract between the state and the judge with a jus quaesitum tertio in the litigant. It is for the state to make such arrangements as may be necessary for the correction of careless or erroneous judicial decisions; if those arrangements are deemed to be inadequate, it is for parliament to put the matter right. And if it be necessary to state the matter in terms of the law of tort, litigants are not persons to whom judges owe a legal duty of care û a duty which does not exist in the abstract, but only towards persons in particular relationships. The fact that he is under a moral duty is nihil ad rem. Judges in this context include, of course, persons forming tribunals and other bodies such as I referred to above.”

Olumide Smith v Labour Relations Commission (DEC-S2017-023) is a case about alleged racial bias by a named Rights Commissioner during the hearing of an employment rights complaint. The Adjudication Officer stated at 4.17:

“parties who are dissatisfied with the outcome or conduct of an adjudicative process, rather than being able to claim discrimination under the Equal Status Acts, have two remedies open to them: An appeal with regard to the outcome, and judicial review in the superior courts for alleged defects in process. I am satisfied that these were available to the complainant as they are to any other litigant. That he mistakenly chose to bring the within complaint instead is therefore his responsibility. I am satisfied that the Commission has no jurisdiction in this matter, and that the complaint is misconceived in law.”

Based on the foregoing this claim is misconceived as it is incapable of achieving the desired outcome based on the facts as detailed. The named Adjudicator was fulfilling adjudicative functions as set down in statute and those functions are covered by the principle of judicial immunity. The Adjudicative investigation and the decision making function of that role is not a service or facility available to the public and do not constitute a service as defined under the Equal Status Act 2000 as amended. This claim is misconceived as it is made in error or misunderstanding of  the Equal Status Act 2000 as amended.  I find that I have no jurisdiction to investigate this complaint.

Section 22 of the Equal Status Act 2000 as amended 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.

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 provides that a complaint may be dismissed at any time if an opinion is formed that the claim is misconceived.

This claim is misconceived as it is made in error or misunderstanding of the Equal Status Act 2000 as amended. The named Adjudicator was fulfilling adjudicative functions and those functions are covered by the principle of judicial immunity. The decision itself is subject to appeal. The fairness of the process is subject to Judicial review and the correct interpretation of the law is subject to High Court determination.  The Adjudicative process, the conduct of the adjudicator and ultimately the outcome or decision are not services as defined in the Equal Status Acts. The complaint is misconceived and is not capable of achieving the desired outcome as the Workplace Relations Commission has no jurisdiction to hear the complaint.

Section 22 of the Equal Status Act 2000 as amended provides for a complaint to be dismissed at any time if an opinion is formed that the complaint is misconceived. As I have formed the opinion that the complaint is misconceived pursuant to section 22, I dismiss the claim and determine that I have no jurisdiction to adjudicate on the matter

 Dated:  20-09-21

Workplace Relations Commission Adjudication Officer:  Brian Dalton

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