Complainant

Respondent

Parties

Deirdre  Morgan

Workplace Relations Commission

Representatives

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00033541-001

30/12/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 81E of the Pensions Act, 1990 as amended by the Social Welfare (Miscellaneous Provisions) Act 2004

CA-00033541-002

30/12/2019

The following is a summary of the Complainant’s submission.

The Complainant is a retired teacher and has named four different parties as the Respondent in her complaints lodged with the Workplace Relations Commission on 30 December 2019.

The complaints relate to discrimination and victimisation on the gender and disability grounds.

The following case relates to the complaint against the Workplace Relations Commission (WRC).

Essentially, and in summary, the Complainant states that,

“For years my employers have victimised me as per section 74 (2) in relation to an earlier complaint I made to the Equality tribunal in 2009, in relation to female child sexual harassment/abuse that I reported, in relation to Adult X's treatment of me for protecting a female child, for making further complaints of their treatment complaints as a female. I have been too ill from the victimisation to stop my employers from acting against/ failing to comply with the orders of the Equality Tribunal. This victimisation discriminates against me on gender and disability grounds from recovering and getting back to teaching for them or other employers and discriminates against me reporting as a registered teacher the child abuse denial and cover up that I witnessed.

I have named the WRC as respondent under Section 77 (4)(b)as responsible for the treatment that continued while the WRC denied me the right of investigation for the reasons that it did and for the findings and actions it made while at the same time denying me an investigation under the Act, and for failing to stop investigating and making findings into the future/beyond the cognisable period and its jurisdiction - even when I asked it to stop. [sic]”

The Complainant has set out clearly in her submission and complaint form that “[a named Education and Training Board] and a Minister [for a Government Department] are my employers under the Act.”

The following is a summary of the Respondent’s submission.

The WRC submits that it has been incorrectly named as a Respondent in these matters.

In relation to the Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998.

The Respondent said that the complaint against the WRC does not relate to discrimination against the Complainant or that she was subject to victimisation under Section 77(1) of the Employment Equality Act. She does not claim against the WRC to have been dismissed in circumstances amounting to discrimination or victimisation nor to have been receiving remuneration in accordance with an equal remuneration term, or not to have been receiving a benefit under an equality clause. The WRC is not, or never has been in an employment relationship with Ms Morgan. Ms Morgan does not state that the WRC is her employer but rather names two of the other respondents in this claim as her employers under the Act.

Complaint seeking adjudication by the Workplace Relations Commission under section 81E of the Pensions Act, 1990 as amended by the Social Welfare (Miscellaneous Provisions) Act 2004

The Respondent said there is no employment relationship between the Complainant and the WRC, it is in no way responsible for the Complainant’s occupational pension and does not fall under the criteria set out in the Pensions Act 1990 for a referral of a claim for redress under section 81E of the Pensions Act. The Respondent said that the WRC has not discriminated against the Complainant in breach of the principle of equal pension treatment and is not the person who is responsible for admitting members to a scheme, nor is the WRC named as the person who is alleged to be responsible for victimisation in this regard.

The Respondent said that any misunderstanding or confusion in relation to the legislative provisions quoted by the Complainant, the WRC refutes any allegation arising under the Equal Status Act 2000 around service provision and states that any such complaint is frivolous and vexatious. The Respondent said that it is not the Complainant’s employer and the above referenced complaints are misconceived. The Respondent also strongly refutes any assertions made around disposal or provision of service in relation to her.  In the case of Farley –v- Ireland & Others 1997 IESC60 Mr. Justice Barron in the Supreme Court stated; “So far as the legality of the matter is concerned frivolous and vexatious are legal terms, they are not pejorative in any 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”

The Preliminary matter

The Complainant’s cases against the Workplace Relations Commission is that she “[N]amed the WRC as respondent under Section 77 (4)(b)as responsible for the treatment that continued while the WRC denied me the right of investigation for the reasons that it did and for the findings and actions it made while at the same time denying me an investigation under the Act, and for failing to stop investigating and making findings into the future/beyond the cognisable period and its jurisdiction - even when I asked it to stop”

The Complainant states in the said complaint form that “[a particular named] ETB and a Minister are my employers under the Act.”

The Respondent said the Complainant does not claim against the WRC to have been dismissed in circumstances amounting to discrimination or victimisation nor to have been receiving remuneration in accordance with an equal remuneration term, or not to have been receiving a benefit under an equality clause. There is no employment relationship between the complainant and the WRC it is in no way responsible for the complainant’s occupational pension and does not fall under the criteria set out in the Pensions Act 1990 for a referral of a claim for redress under section 81E of the Pensions Act. The WRC has not discriminated against the complainant in breach of the principle of equal pension treatment and is not the person who is responsible for admitting members to a scheme, nor is the WRC named as the person who is alleged to be responsible for victimisation in this regard.

The Respondent said that these complaints are misconceived and should be struck out under Section 77A of the Employment Equality Acts 1998- 2015.

The Law

This complaint relates to discrimination under the Employment Equality Acts 1998- 2015 (‘EEA’). Section 77(1) of the EEA provides that “a person who claims— (a) to have been discriminated against or subjected to victimisation, (b) to have been dismissed in circumstances amounting to discrimination or victimisation, (c) not to be receiving remuneration in accordance with an equal remuneration term, or (d) not to be receiving a benefit under an equality clause, in contravention of this Act may, subject to subsections (3) to (9), seek redress by referring the case to the Director General of the Workplace Relations Commission.”

Under the EEA, Section 77(4)(b) defines the “respondent” means the person who is alleged to have discriminated against the complainant or, as the case may be, who is responsible for providing the remuneration to which the equal remuneration term relates or who is responsible for providing the benefit under the equality clause or who is alleged to be responsible for the victimisation.”

The terms “employee”, “employer” and “contract of employment” are defined in section 2 of the EEA as follows: ‘employee’, subject to subsection (3), means a person who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment and, where the context admits, includes a member or former member of a regulatory body, but, so far as regards access to employment, does not include a person employed in another person’s home for the provision of personal services for persons residing in that home where the services affect the private or family life of those persons; “employer”, subject to subsection (3), means, in relation to an employee, the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment; ‘contract of employment’ means, subject to subsection (3) — (a) a contract of service or apprenticeship, or (b) any other contract whereby — (i) an individual agrees with another person personally to execute any work or service for that person, or (ii) an individual agrees with a person carrying on the business of an employment agency within the meaning of the Employment Agency Act 1971 to do or perform personally any work or service for another person (whether or not the other person is a party to the contract), whether the contract is express or implied and, if express, whether oral or written;

Section 77A deals with the dismissal of claims.

Section 77A. (1) The Director General 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.

Consideration

This case was delegated to me for consideration and from the outset I am of the opinion that there is a serious preliminary matter that requires careful attention, namely whether the case is properly before me in law.

I received submissions from both parties, and they have been exchanged between each other and each side invited to comment.

I am satisfied that the Complainant had taken complaints against four different Respondents. She has identified that two of those were her employer, - a Minister and an Education and Training Board and the other two were cited for other particular reasons. In this case, the Respondent named – the Workplace Relations Commission - I have named the WRC as respondent under Section 77 (4)(b) as responsible for the treatment that continued while the WRC denied me the right of investigation for the reasons that it did and for the findings and actions it made while at the same time denying me an investigation under the Act, and for failing to stop investigating and making findings into the future/ beyond the cognisable period and its jurisdiction - even when I asked it to stop.”

I am satisfied that such a complaint as against the WRC does not comply with the requirements of section 77(1) of the Employment Equality Acts or those set out in section 81E(4) of the Pensions Act.

It is clear that for a claim to be dismissed as misconceived under Section 77A of the Employment Equality Acts, the Director General must be wholly satisfied that the claim is based on a fundamental misunderstanding of the legislation, or that there is no arguable cause of action or finally, that it is entirely unfounded. I note that the Labour Court had upheld a plethora of such misconceived decisions from the Equality Tribunal in this specific area of law, see in particular Department of Defence v Barrett EET 1/2008.

I have taken note of the Complainant’s reasoning as to why she has included the WRC as a Respondent in her case.

I am satisfied that there are sufficient judicial remedies available to parties where they determine that the conduct of a tribunal or a court is not proper; or separately, when a decision issues and a party disagrees with that decision. However, I am also satisfied that those remedies do not include referring such a complaint to the Workplace Relations Commission for adjudication in those instances as is the case here.

I note that Birmingham J. provided a legal definition of “frivolous” in Nowak v. Data Protection Commissioner[2012] IEHC 499, he held that: “frivolous, in this context does not mean only foolish or silly, but rather a complaint that was futile, or misconceived or hopeless in the sense that it was incapable of achieving the desired outcome”.

Such cases can and are dealt with through the mechanism available via Section 77A of the Employment Equality Acts for good reason. In that respect I note the decision in Goode Concrete v. CRH plc[2012] IEHC 116 where, at para. 36, it was stated:-

“ A plaintiff's right of access to the Courts is not absolute and the Court has jurisdiction to prevent the right being abused by, for example, dismissing a case for inordinate delay or as frivolous, vexatious or bound fail in order to prevent injustice to a defendant (see Barry v Buckley[1981] IR 306 ).”

All taken in to consideration I am satisfied that the complaints in this case are frivolous, misconceived, and are incorrectly based in law.

I, therefore, find that the above complaints are frivolous, misconceived and are incorrectly based in law.

Employment Equality Acts - Pensions Acts, - Misconceived - incorrectly based in law