Complainant

Respondent

Anonymised Parties

Child B suing by her father as next friend

A Public Body

Representatives

Heather Rosen

Martina Keane Michael Houlihan & Partners LLP

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00014571-001

11/09/2017

CA-00014571 -001   Case of Child B suing by her    Father as next friend

On 11 September 2017, Ms Heather Rosen, Lay Representative on behalf of a named family, lodged a complaint of “discrimination, harassment and permitting of harassment “with the Workplace Relations Commission.

She submitted that the complaint concerned a criminalisation of the mother of the family for her distress at the lack of attention to emergency needs in September 2016.

The Family was named on the complaint form as:

1.       Father A   2.  Mother A

3 Child B, the complainant in this case.

4 Child C

5 Child D

6 foster child E

7 foster child F

The Complaint outlined that Father A and Mother B were acting on behalf of “each of our children”

Child B, the Complainant in the instant case and conjoined with cases for B, D, E and F.

Child C

Child D

Child E foster child

Child F (foster child)

The Respondent was named as a Ms S.

In accordance with Section 30 of the Equal Status Act, 2000, I have decided to anonymise the entire grouping of parties in this case.

I have done this because of a unique and sensitive set of circumstances involving both parties which justifies these special circumstances.  I have also done this following a direction issued to both parties to submit reasons why I ought to anonymise the children’s Father A and the Public Officials. I gave an assurance at hearing, that I would anonymise the children in the case. I requested submissions on why the next friend and /or the Public Officials named on the complaint form should be anonymised.

The Complainant responded on July 10, by formally withdrawing the case of Father A, but requesting that the cases for the children proceed. The Respondent filed a responding submission dated July 27, 2022, which raised issues surrounding the absence of next friend at hearing. The Respondent confirmed agreement to the anonymisation of the children’s cases and sought reciprocation for the public body in the case.

Supply and publication of decision.

30.— (1) A copy of every decision of the Director of the Workplace Relations Commission under this Part shall be given to the complainant and the respondent and every such decision shall be published on the internet in such form and manner as the Director General of the Workplace Relations Commission considers appropriate and a copy thereof made available for inspection at the office of the Director of the Workplace Relations Commission

Correct Respondent

An issue arose in this case on the correct name of the Respondent.

The complainant submitted that the complaint was lodged against named officials of the Public Authority. The Respondent submitted that the Public Authority was both the employer of these Officials and thus the correct Respondent.

I asked the Complainant representative if she was agreeable to accepting the application of Section 42 of the Act in this case and so to amend the Respondent title to a named Public Body? The complainant representative refused to amend the title and argued that this would deflect from personal responsibility in the complaint.

I have reflected on both of those positions.

I have drawn from the provisions of Section 5 of the Act.

Disposal of goods and provision of services.

5.—(1) A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public.

I have reflected on the terms of Section 42 of the Equal Status Act, 2000. It is essential that I record the correct parties in my decision.

I am satisfied that I have captured the correct name of the Complainant and her  next friend. I am not satisfied that the name listed as the respondent on the complaint form is in accordance with the parameters of the Act. The named Respondent worked for a Public Authority and did not provide Goods and Services in her  own right. Therefore, she  is not the correct mark.

I find that I now have to exercise my discretion and impose the correct name of the Respondent as the Public Body identified at the head of this decision.

I have done this in accordance with section 42(1) of the Act.

Vicarious liability.

42.— (1) Anything done by a person in the course of his or her employment shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that person’s employer, whether or not it was done with the employer’s knowledge or approval.

This amendment is necessary for precision in the case and in the event of a potential appeal.

The Respondent has been identified as a Public Body and anonymised in accordance with my Decision.

This case concluded on anonymisation of both Parties.

Background:

On 18 October 2017, the Respondent, a public body was notified of the complaint by the WRC.

On 18 October 2017, the WRC also notified the parties that the claims were received outside the statutory timelines. Submissions were sought within 14 days. The parties were notified that submissions received after that period cannot be considered. No submissions were submitted to address the statutory time limit issue within the requested period.

On 27 April 2022, both parties were notified of the In Person hearing set for 21 June 2022 at 11 am in Ennis.

It is of importance to this case that neither party sought to update this file in the intervening period between October 18, 2017, and April 2022. I will return to this.

Immediately prior to hearing, the parties engaged in an abundance of correspondence with the WRC.

On May 10,2022, the Respondent Solicitor wrote to the WRC seeking a reconciliation exercise on complaint numbers to correspond to complainant names and files. They submitted that thousands of complaints had been submitted by the Complainants representative. They sought copies of all notification forms.

On May 18, the WRC forwarded the requested details to the Respondent Solicitor.

On 31 May 2022, in preparation for hearing in the case, I wrote to the complainant’s representative seeking the following:

My name is Patsy Doyle, and I am the Adjudicator assigned to hear this case at face-to-face hearing on June 21, 2022, in Ennis at 11 am. I have commenced my investigation in the case and look forward to meeting the parties at hearing.

 In preparation for the hearing aspect of my investigation, I require the following in advance of the hearing, please?

1.      An outline submission, inclusive of a copy of the original ES1 form served on the Respondent.

2.        Any documentation on which the Complainants are seeking to rely on .at hearing.

3.      The WRC has identified that these complainants may have been received outside of the statutory timeframe permitted. I will address this issue with both parties as a Preliminary Issue at the commencement of the hearing.

4.       I note that reference is made to seeking recordings of the hearing. You will be aware on your notification of hearing that the WRC procedures have altered, and all our hearings are now held in public and witness evidence is given under oath/affirmation. I would be grateful if all potential witnesses would give some thought in advance of the hearing to whether they wish to swear an oath or take an affirmation at hearing

 I would request that your written submission is submitted to the WRC on or before Friday June 10 please to facilitate an efficient exchange with the Respondent in the case. This will permit some time to facilitate a responding submission to be shared directly with the Complainants prior to hearing. I look forward to meeting the parties at hearing. I will copy this letter for the attention of the Respondent for completeness.

On June 9, 2022, I responded to both parties’ requests for explanation on how the hearing would run on June21.

I catalogued the 6 conjoined cases. I advised the parties of WRC guidelines on hearings and the specific publication on the Equal Status Act 2000. I asked the parties to prepare for hearing.

…. The hearing is a very important component in any case and in the absence of written submissions, you will appreciate that I will of course hear evidence from the parties and permit cross examination. Once I conclude that process and reflect on the facts, I will then enter the deliberative process of decision making and will submit 6 decisions to the WRC for the consideration of both parties.

 I would make a final request for written submissions from both parties to assist me in capturing and framing the chronology in the case prior to hearing directly from the complainants and respondents in the cases. I will address the issue of statutory time limits at the commencement of hearing.

 I look forward to meeting the parties on June 21 next in Ennis. This letter is being directed to the Respondent also

I clarified that any requests for postponements in the case, conjoined with ADJ 10588, 10600, 10576, 10623 and 10624 should be directed to the Postponement division.

On June 15, I wrote to the parties again. This time, I set out the parameters for hearing in accordance with Section 25 of the Act.

On June 17, 2022, the WRC refused to grant the complainants application to postpone the hearing set for June 21, 2022.

In my preparation for the hearing, I read this particular document on file. I learned that Mother A had passed away in August 2019, unexpectedly. This had not been notified to the WRC prior to this date. There was no record on file of this occurrence.

The case proceeded to hearing on June 21 at 11 am as planned.

Neither party furnished the requested outline submissions.

The Complainant representative attended the hearing alone. The Respondent Solicitor submitted that two of the named officials in the 6 cases would not be attending the case. The remaining official , in the instant case was present and would be available for hearing. 

The Parties signed the attendance at hearing sheet.

Preliminary Issues

Death of Mother A

Ms Rosen confirmed that Mother A had passed away in August 2019 and that Father A was the children’s next friend for the purposes of the hearing. She did not have any details on Mother a’s Personal Representative but confirmed that she had consulted with Mother A’s extended family, along with Father A prehearing.

Ms Keane objected to the matter proceeding on statutory time limits not being met. She also submitted that the death of Mother A was known by both parties, but her case had not been withdrawn. She asked if the case for Mother A was being withdrawn as her cause of action had ceased on her death?

Ms Keane expressed a disquiet that there was clearly a nonappearance by Father A in the case and submitted that in the absence of Father A, as next friend, the continuance of the hearing was not viable. She argued that Father A had been given almost two months prior notice of hearing, which was sufficient to secure attendance.

 In response to Ms Rosen seeking to place herself in the shoes of a “next friend” Ms Keane said that she did not have authority, nor would she be in a position to present the facts in evidence.

Ms Keane argued that her client was prejudiced by the delay in the case as the named Official had retired, files had been archived and corporate knowledge lost.

She submitted that the case could not proceed in the absence of an attendance on behalf of the complainant. It should be struck out as the burden of proof could not be secured.

Ms Rosen, in response attributed the delay in the case to the WRC. She accepted that the April 2022 notification of hearing had been received. She had relied on securing a postponement as she worked alone. She was disappointed to be refused a postponement.

She submitted that she could represent in the case of a death and referred to an unnamed section of the Act. Time was given to allow for an identification of this section, but it was not forthcoming.

Ms Rosen sought the application of section 20 but did not elaborate on a link to disability.

She confirmed that her preparation prehearing had been with Mother As family, and she drove to meet Father A on the Saturday prior to hearing.

She argued that the hearing was too proximate to Mother A death and sought another adjournment.

This was strongly opposed by Ms Keane who re-affirmed that Father A, as next friend, had to be at the hearing. She rejected the application of Section 20 as the statement of claim had not incorporated a mention of disability.

Ms Rosen then sought for the case to run by way of written submissions only. She added that Father A was missing on medical grounds but did not advance any medical documentation in support.

Ms Keane objected to the case being concluded by means of written submission and attributed “exceptional grounds “to the WRC as a gateway for granting of this medium. I also reminded the Parties that they had been invited to submit written outline submissions in advance of the hearing but had not availed of that opportunity.

She re-affirmed that as the “next friend “was absent, the complainants were minors, the case could not proceed.

Non-Appearance of Father A / next friend

In response to my request for clarification. Ms Rosen confirmed that she did not have a letter of authorisation for representation or any reported medical reasons for Father A nonappearance at hearing.

 She confirmed that she had initiated contact with Mother As family 2 weeks prior to hearing and they indicated that they did not want to advance the case of Mother A further. She exhibited a text following her meeting with Father A two days prior to hearing. Ms Rosen submitted that the context and background for this text was the WRC hearing of June 21, 2022.

“I was thinking about everything you said, and I am finding it a bit difficult to deal with that at this time … I want to thank you …. But I won’t be going to that. Its bringing up too many painful memories “

Ms Rosen confirmed that the children’s cases had not been advanced to the Children’s Ombudsman.

I gave Ms Rosen a direction to obtain clear instruction in the case. She reported that she had attempted to call Father A, but he had travelled abroad.

Ms Rosen took a break to seek instruction.

Ms Rosen then confirmed that she was applying to withdraw Mother As complaints and signed a form to that effect. This was accepted by the Respondent.

Ms Keane clarified that Father A did not have the status of applicant on the housing list and was not in receipt of a service from the Public Body.

Consideration of Dismissal of Claim

At this point, I sought submissions from the parties on whether the case should be dismissed as provided for in Section 22(1) of the Act and as proposed by the public body?

Dismissal of claims.

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.

(2) Not later than 42 days after the F50[Director of the Workplace Relations Commission] dismisses a claim under this section, the complainant may appeal against the decision to the Circuit Court on notice to the [Director of the Workplace Relations Commission specifying the grounds of the appeal.

(3) On appeal the Court may affirm or quash the decision.

(4) No further appeal lies, other than an appeal to the High Court on a point of law

Ms Rosen submitted that the case should run as there was a serious matter for consideration, but the matter was too painful for Father A to speak about as trauma was involved. She argued that the case survives death, and it did not merit a dismissal as the claim was not trivial, misconceived or vexatious.

She confirmed that the case centred on the lack of proper practices in Housing for homelessness and applicants being pushed from one section to another.

The Respondent, through Ms Keane argued for dismissal on the grounds that there claims which had not been particularised were misconceived and did not amount to prohibited conduct.

The Complainant insisted on naming the officials rather than recognising the vicarious liability of the corporate body they worked for.

The Complainant had not pursued her case within the year.

As the allegations had not been specified, the burden of proof was unattainable the Complainant had not addressed the requested submissions on the expiration of the statutory time limits in 2017.

Ms Keane argued for the application of Section 14 in the case. She rejected all claims of discrimination and harassment.

In response to my questions, Ms Rosen did not have evidence of an official fostering documentation to cover Children E and F

Ms Rosen submitted that the ES1 had not been met with a response. She argued that she had not received the October 2017 notification on the difficulty regarding time limits

Ms Rosen clarified that the essence of the claim was that Public Officials had phoned Gardai and had failed in their duty of care to assist in Emergency Housing. She did not address whether Father A had locus standus in the case.

She clarified that she had chased up the progress of the case but was unable to identify a date.

Repeat Request for Postponement to allow for Father A attendance: 

Ms Rosen requested to be heard on another request to postpone the case. she referred to her surprise at being refused her earlier application for postponement. She said Father A had had a traumatic time and he had travelled abroad. He had told her that he was not up to attending the hearing and was uncertain just when he might be available.

Ms Keane opposed the application for postponement and submitted that Father A had not submitted any documentary evidence for his not being there. The Respondent had interpreted this as his not having an interest in pursuing the case.

She argued that her client was prejudiced by this open-ended delay as it had not been possible to ventilate the response in the substantive case.

I asked Ms Rosen how higher courts had dealt with the issue of nonattendance of complainants? to which she replied that she had been granted adjournments or postponements.

Ms Keane responded that the complainant’s presence was “absolutely essential “to the progression of the claim.

I took a break of 10 mins to consider all I heard. I then communicated my refusal of the postponement application on the following grounds.

1. The Equal Status Act is a powerful statute.

2 The Hearing plays a central part in my ongoing investigation. as it is the gateway for both parties’ oral evidence and cross examination in pursuance of the burden of proof. It is an opportunity to study body language, demeanour of all parties. It helps me to clarify the unclarified to date.

3 The complainant has submitted a complaint which reflects an argument directed at a strong sense of injustice, but this needs to be tested by evidence from both parties.

My role is to administer justice to both parties in a timely manner.

4 I was not satisfied that the complainant representative had spelled out the necessity of attendance for Father A at hearing. I accepted that he was a next friend. I expressed a dissatisfaction at the lack of preparedness in the case.

5 I had not been provided with medical evidence to explain or excuse his nonappearance. Instead, I had received a snapshot of a text which carried ambiguities regarding the hearing and reflected a lack of preparedness to attend. There was no indication when Father A would be available for a hearing.

6 Work pressures for representatives are universal and not particular to the complainant representative.

7 The sole onus rested on Father A, suing as a next friend. In this instance, where an application for postponement was made prehearing and refused, the next friend was faced with mandatory attendance at hearing.

8 In lodging a claim, the complainant must have anticipated that a hearing would follow.

9 The Parties had been requested to submit outline submissions prehearing and declined.

I found no grounds to grant a postponement.

I directed Ms Rosen to obtain instructions from Father A on whether he wished to withdraw the remaining cases in light of the ambiguity in the text message referred to above. I allowed 7 days for this.

Request to Anonymise the Decision in the case:

I confirmed that I was prepared to anonymise the decisions which referred to children. I sought submissions on why the case of the next friend/ Father A should be anonymised within 4 weeks of hearing. I also requested that the Respondent file submission on why the case for Public Officials should be anonymised.?

I asked the Complainant representative, Ms Rosen, if the complainant was prepared to agree to amend the title of the Respondent in the case to reflect the name of the public body as provided for in Section 42 of the Act? This was met by a concrete rejection and a re-affirmation that it was vital that the officials be named individually.

The Hearing concluded on that basis

Post Hearing:

On June 28, Ms Rosen submitted a letter of clarification. She submitted that Father A had contacted her. She exhibited a text where Father A was attributed as having submitted to her.

“…… I have decided to take no part in it, but if you can do something with the kid’s cases without my being involved then by all means go ahead, if not, I would like to leave it “

Ms Rosen accepted that the Hearing had occurred in the case.  The case of Father A was then withdrawn.

These documents were shared with the Respondent, who filed a response dated July 27, 2022, which was copied to the complainant.

I wrote to the complainant and accepted notification of the withdrawal of Father A and the application on behalf of Mother A in the case. I said that I would issue decisions in the cases of the 5 children.

These are the decisions which have emanated from ADJ 10588 and are conjoined with the instant case:

ADJ 39653

ADJ 39654

ADJ   39655

ADJ 396456

On September 11, 2017, The Complainant Representative submitted a complaint under the Equal Status Acts, 2000 on behalf of Mother A and Father A, and 5 named children, two of whom were introduced as fostered.

The Complainant form indicated that Mother A and Father A would make the case on   behalf of themselves and five of their children.

The Complaints consisted of claims of discrimination on grounds of Membership of the Travelling Community.

The narrative of the Complaint received by the WRC on 11 September 2017, outlined that the Family was made homeless when they were asked to leave a dwelling for financial reasons. The family was unable to secure housing.

They were directed between the Homeless clinic and the County Council and back again.

This culminated in” a day in September “identified on the ES1 form as 14 September 2016, when Mother A insisted on addressing a staff member known to her.  Mother A was told the person was not there, only to find that the person was visible in the back office and she “wrapped the window to gain attention “

The Gardai was called, and Mother A was arrested, jailed overnight. The children were traumatised. A court report was ordered, which had not been seen at the time of submission of the complaint.

The two foster children were assigned to another household.

The Complainant representative submitted that these crisis circumstances evolved out of failures to listen to, and address emergency needs and fell under SS 2-5-6-11 of the Act

“Plus, any other part of the law that the appointed adjudicator may discern upon concluding the investigations “

The ES1 was dated 22 December 2016 and submitted a number of questions to the Public Body.

The Respondent named on the complaint form is a serving member of staff of a public body and she was present at hearing . The Respondent title has since been amended to reflect that of the Public Body.

The Respondent is represented by Ms Keane, Michael Houlihan Solicitors. The Respondent Representative has denied all claims of discrimination and harassment on grounds of membership of the travelling community. The named Respondent did not attend the hearing as his representative explained that he had retired from service.

On 10 May 2022, the Respondent Representative came on record in the case. The entire file was requested and shared by the WRC on 18 May 2022. The Respondent indicated that they would be preparing a written submission.

The Respondent sought clarification on how the hearing was to be conducted also. I shared details of the WRC guidelines for Equal Status Act hearings in addition to an outline of Section 25 of the Act.

The Respondent Representative attended the hearing in the company of one remaining Public Official, who was the Public Official who replied to the ES1 form in this case by means of seeking further clarification dated 23 December 2017. There is no record of response to this request.

The Respondent has not filed a defence in this claim.

I have outlined the trajectory of the Preliminary points made by the Respondent and the responses made to the complainants’ submissions

I have been requested to make a decision in this case. In arriving at my decision, I have had regard for the foundation complaint form, the ES1 form tendered, and the Preliminary arguments made at hearing on June 21, 2022. I have also had regard for the post hearing notification of withdrawal by Father A. Requests for submissions on anonymising Father A as a Complainant is now moot. I have since received the requested submission from the Public Body on why they contend that the Public Official s named by the complainant should be anonymised.

Child B is a minor. Her case is conjoined with her next friend, Father A and 4 other Complainants, who are siblings and foster children,

There was no appearance by “the next friend at hearing “

I have heard the parties on the sad demise of Mother A in August 2019, and I have noted Ms Rosen’s application for withdrawal of her case at hearing. The Respondent accepted that position.

Introduction:

My jurisdiction in this case is centred on Section 3, 5, 21 and 25 of the Act.

Discrimination is defined in Section 3 of the Act

Discrimination (general).

3.— (1) For the purposes of this Act discrimination shall be taken to occur—

(a) where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) or, if appropriate, subsection (3B),] (in this Act referred to as the ‘discriminatory grounds’) which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

The Complainant in this case has referred on the ground of being a member of the Travelling Community as provided for in section 3(2)(i) of the Act

(i) that one is a member of the Traveller community, and the other is not (the “Traveller community ground”),

A person who believes that they have been discriminated against when accessing goods or services is obliged under section 21 of the Act to notify the service provider in writing of their intention to seek redress under the Equal Status Act, 2000. An Adult is permitted to lodge a complaint on behalf of a child under the general rules on legal capacity.

The events at the heart of this case are centred on an occurrence on 14 September 2016. The ES1 form lodged by Father A and Mother A on behalf of their children and themselves was submitted to the Respondent on 22 December 2016. The Respondent sought clarification of the claim one day later. The Respondent did not file an ES2 response to the complainant.

This complaint was received by the WRC on 11 September 2017. The WRC promptly notified the parties that the complaint appeared to have been received outside of the statutory time limits and sought a response within 14-day s. no response was forthcoming.

The case has been dormant since that date until hearing notifications for June 21, 2022, issued on April 27, 2022. My investigation as provided for in Section 25 of the Act, commenced at that point.

 Investigation by Director of the Workplace Relations Commission.

25.[(1) Where a case which has been referred to the Director of the Workplace Relations Commissionunder section 21—

(a) does not fall to be dealt with by way of mediation under section 24, or

(b) falls to be dealt with under this section by virtue of section 24(6),

The Director of the Workplace Relations Commission shall investigate the case and may, as part of that investigation and if the Director of the Workplace Relations Commission considers it appropriate, hear persons appearing to the Director of the Workplace Relations Commission to be interested. 

I introduced my involvement in the case to both parties in accordance with this section and sought preparatory documents I considered relevant in the case. I conveyed that I was looking forward to meeting the Parties at hearing.

Preliminary Issues:

There has been a clear delay in providing a hearing in this case. Sadly, a supervening event occurred in August 2019, when Mother A passed away. I am satisfied that both parties were aware of this occurrence, but neither party sought to amend the file. I found this to be a considerable omission by the Complainant in the case.

I do not agree with the Respondent that Mother As’ cause of action ceased on her death. Instead, section 7(1) Civil Liability Act, 1961 was relied on by a former Equality Officer in Hegarty v Area Development Management ltd DEC S2009-004, when he found that the claim was a “cause of action “which survived death. This premise was also found in Ibidunni v Boston Scientific (Ireland) ltd [2011] ELR 158

I am satisfied that Ms Rosen submitted an application to withdraw the case of Mother A during the hearing.

Next friend

This brings me to the next friend, Father A, who was also a live Complainant in his own right on the day of hearing. I note that the Respondents contended that Father A was not on the housing list and was not in receipt of service on the date of the occurrence of the events of September 14, 2016. This was not disputed by the Complainant representative.

Father A has now withdrawn his case. However, he did not make an appearance on behalf of the minor children as their “next friend “at hearing.

Time Limits

Prior to lodging a complaint with the WRC, written notification must be forwarded to the goods and services provider within 2 months to constitute a valid notification.

A complaint must be referred to the WRC within 6 months of the last alleged incident or the most recent occurrence in a chain of incidents

6) (a) Subject to subsections (3)(a)(ii) and (7), a claim for redress in respect of prohibited conduct may not be referred under this section after the end of the period of 6 months from the date of the occurrence of the prohibited conduct to which the case relates or, as the case may be, the date of its most recent occurrence.

 (b) On application by a complainant the Director of the Workplace Relations Commission, as the case may be, the Circuit Court] may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly.

On 18 October 2017, the WRC wrote to both parties and outlined that the complaint did not appear to have fallen within the statutory time limits. Submissions were sought and not furnished within the 14-day period. I cannot accept the complainant representative response on this point. I am certain that this important point was notified by the WRC on 18 October 2017.

The Respondent has contended that the case cannot survive this failure to respond.

For my part, I had indicated prehearing that I would seek submissions on the preliminary point of time limits. In the absence of a next friend / Father A, I did not receive those. I did listen to and consider the oral Preliminary arguments made at hearing.

Burden Of Proof

I explained the central importance of the initial burden of proof resting on the Complainant at hearing.

This provision as set out in section 38A of the   Act and places an onus on the complainant to provide evidence from which it may be presumed that prohibited conduct has occurred.

A prima facie case of direct discrimination establishes three things

1 the complainant is covered by the relevant discriminatory ground

2 there was specific treatment by the respondent

3 the treatment of the complainant was less favourable than the treatment that was or would have been afforded to another person in similar conditions

Burden of proof.

38A.— (1) Where in any proceeding’s facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the respondent to prove the contrary.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to the person.

(3) Where, in any proceedings arising from a reference of a matter by the Authority to the Director of the Workplace Relations Commission under section 23(1), facts are established by or on behalf of the Authority from which it may be presumed that prohibited conduct or a contravention mentioned in that provision has occurred, it is for the respondent to prove the contrary.

The level of proof required is on the balance of probabilities. If discrimination can be inferred from this difference in treatment, the burden then passes to the Respondent to rebut. The Complainant/ next friend carries a leadership role in a case of alleged discrimination.

Mitchell v Southern Health Board [2001] ELR 201

I worked very hard at hearing to ascertain the intentions of Father A in relation to attendance at hearing. I was extremely disappointed to establish that he did not attend. I allowed the complainant representative sufficient time, mindful also of the impatience of the respondent that they had turned up to address the case, to contact Father A during the hearing to address the ambiguities in the text exhibited at hearing or even to permit time for attendance.

I have established that the Complainant representative had not directed Father A in his   obligations to attend the hearing as a declared next friend and “carrier of the initial burden of proof “in accordance with Section 38A of the Act. I have recorded this as a clear omission in communication.

In giving a seven-day period to clarify the intentions of Father A in the case, I found that the Complainant received an opportunity to remedy that omission and did not.

However, I accept that Ms Rosen has subsequently confirmed that the hearing in this case has completed, and I move on, having accepted that Father A has withdrawn his case, but has asked for “something to be done for the children”

In this, I find his voice too remote as it is outside of the central hearing zone necessary under Section 25 of the Act. It is a case of Hamlet without the Prince.

I would like to draw on a case on record from the former Equality Tribunal, where Mr Stephen Bonnlander found that Mr Bozs and Mr Marius Sabaliauskas (complainants) did not appear at hearing

“ .. Accordingly, I find that they have not established a prima facie case in relation to any of the above complaints and their cases therefore fall “

 Ritvars Bozs et al v Damoli Construction Solutions ltd (in liquidation) and Damien Brennan [2011]”” ELR

Consideration of submissions on whether the case should be dismissed in accordance with Section 22(1) of the Act.

I have considered this aspect of the case very carefully. the Respondent made strident application for the case to be struck out as misconceived. The Complainant countered this by contending that there was a serious matter to consider.

My jurisdiction in this regard rests in section 22(1) of the Act

Dismissal of claims.

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.

(2) Not later than 42 days after the Director of the Workplace Relations Commission dismisses a claim under this section, the complainant may appeal against the decision to the Circuit Court on notice to the Director of the Workplace Relations Commission specifying the grounds of the appeal.

(3) On appeal the Court may affirm or quash the decision.

(4) No further appeal lies, other than an appeal to the High Court on a point of law.

The question of dismissal of a claim is a very serious matter and one that has required a careful review and consideration.

I fully accept that the Complainant representative is by her own description a lay representative. I heard her submissions on her approach to this case advancement through requests for postponements. Indeed, I heard one at hearing on June 21.

I was struck by the clear reticence of the complainant to make an appearance at hearing, to make outline submissions, to give evidence. I was left with a sense of confusion as the complaint was worded as a submitted discriminatory action. Why not advance the case within the rules of engagement under the very Act designed to deter prohibited conduct?

I have not found an answer to this question.

Instead, I have registered a clear dissatisfaction from the Public Body when they sought to rely on the clear and unambiguous wording of section 42 of the Act.

Vicarious liability.

42.— (1) Anything done by a person in the course of his or her employment shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that person’s employer, whether or not it was done with the employee’s knowledge or approval.

(2) Anything done by a person as agent for another person, with the authority (whether express or implied and whether precedent or subsequent) of that other person shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that other person.

(3) In proceedings brought under this Act against an employer in respect of an act alleged to have been done by an employee of the employer, it shall be a defence for the employer to prove that the employer took such steps as were reasonably practicable to prevent the employee—

(a) from doing that act, or

(b) from doing in the course of his or her employment acts of that description.

Instead, the Complainant representative sought to personalise the claim. The Act determines a higher level of proximity between an employee and an employer in vicarious liability in the supply of goods and services. They are as one.

I have now amended the Respondent title.

In considering the application for dismissal of the case, I reflected on the High Court family Law case of

JON v 9 defendants [2013] IEHC 135.  Bermingham, Jconsidered an application for dismissal of action.

Nothing of substance happened on foot of Judge White's order appointing guardian ad litem, an order that was thereafter stayed and then reversed. In my view the proceedings against the first named defendant failed to disclose any reasonable cause of action and are vexatious. In the course of his judgment in Farley v. Ireland (Unreported, ex tempore, Supreme Court, 1st May 1997) Barron J. made the point that the phrase frivolous and vexatious is a legal term and not pejorative. He commented as follows: -

“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 hardship on the defendant to have to take steps to defend something which cannot succeed, and the law calls that vexatious.”

In my view the plaintiff has no reasonable chance of succeeding against the first named defendant and it would be oppressive to require the defendant to have to take on the burden of defending proceedings which are fundamentally misconceived.

33. Accordingly, I will strike out the plaintiff's claim as against the first named defendant in its entirety; for failing to disclose a reasonable cause of action and for being vexatious. I will do so pursuant to O.19, r.28 but also pursuant to the inherent jurisdiction of this Honourable Court. I regard these proceedings as an abuse of process.

His closing paragraph is insightful.

4. It is unfortunate that these family law proceedings should have gone on as long as they have. It may be that the present proceedings were prompted by the fact that an order was made without jurisdiction appointing a guardian ad litem and in particular to use the word chosen by the plaintiff it may be that the present proceedings were ignited by the plaintiff coming across the Legal Aid Board email but nonetheless the contents of the proceedings, the tone and style of the pleadings and the multiplicity of defendants, some with the most peripheral involvement in the matters at issue strongly suggest that the plaintiff is prepared to issue proceedings in an indiscriminate and irresponsible fashion. The present proceedings are, in every sense of the word vexatious. They are an abuse of process. Accordingly, as I have indicated, I will make the orders sought by the defendants who have brought motions.

I have decided not to dismiss this case. I recognise the Respondent intolerance for the delays in the case and the failure to particularise and advance the case according to the WRC guidelines and the parameters of the Act

 However, I accept that the complainant had a serios case for consideration, which is not worthy of dismissal.

However, Ms Rosen for the Complainant has not reflected that in the veritable gap in preparation for hearing. Advocacy practiced through the vehicle of hesitation, failure to present witnesses, and requests for adjournment   as default positions during a hearing for no good reason are unwelcome irritants to the administration of justice, I found that these actions served to detract from the true context and background to the case.

The Complainant has a preserved right to equality before the law as reflected by the Universal Declaration of Human Rights. The Respondent also has a right to participate in a timely administration of justice through hearing.

I conclude that the complaint in the instant case has not moved from the statement of claim through lack of witness attendance via the next friend at hearing. I made extensive efforts to inquire into the facts of the case, but I simply did not have the benefit of hearing directly from the complainant who claimed discrimination.

 I have concluded my investigation in accordance with Section 25 of the Act. I find that by the failure of the next friend to appear at hearing and to take the facts of the case through Inquiry and onto a decision / potential redress in the case in accordance with section 27, the complaint cannot succeed.

The case must fall for non-appearance of the “next friend “in this case. The next friend has not secured the burden of proof as outlined in Section 38A of the Act.

I cannot put the matter further.

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.

I have found that the complainant, through her next friend has not satisfied the burden of proof provided for in Section 38 A of the Act. I cannot establish that discrimination on grounds of membership of the Travelling Community occurred.

Claim for Discrimination on grounds of membership of the Travelling Community.