Complainant

Respondent

Anonymised Parties

A Complainant

An Employer of a Judge

Representatives

Act

Complaint Reference No.

Date of Receipt

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

CA-00032199-001

01/11/2019

A total of five complaints included in one ES.3 complaint form in relation to discrimination in provision of goods, services or facilities has been made against a Court service, two Judges and the employer of the Judges.

The following relates to the complaint against a Judge.

Essentially and in summary, the complaint relates to the Court proceedings held on stated dates in 2019, where the Complainant claims the Respondent bullied, harassed and victimised him.

The Complainant complains about the treatment he received during the Court proceedings and how the case was handled were disproportionately biased and discriminatory due to the grounds of race and his ethnic origin.

Accordingly, the Complainant maintains that he has been discriminated against by a person, organisation, company who provides goods, services or facilities contrary to the Equal Status Act, 2000.

The Preliminary matter

The complaint is made against the employer of a Judge and arises from interactions during court proceedings.

I am satisfied that there are sufficient judicial remedies available to parties where they determine that the conduct of a Judge is not proper. However, I am also satisfied that those remedies do not include referring such a complaint to the Workplace Relations Commission for adjudication.

I note from reading the substantial submissions that the Complainant, although not legally represented, is well versed in defending his rights and cites multiple authorities across multiple statutes. However, I find that taking this complaint to the Workplace Relations Commission is not legally correct or appropriate as the Workplace Relations Commission has no jurisdiction to review the conduct of a higher court. The reasons are set out below.

The Law

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;”

Disposal of goods and provision of services is dealt with by Section 5 and section 5(1) of the Act reads,

“(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.”

Section 22 deals with the 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.”

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.

The Complainant relies upon the Equal Status Acts 2000-2018 to ground his complaint, in relation to Court proceedings, against the Respondent who he 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.

I note a plethora of decisions taken by the WRC and its predecessor, the Equality Tribunal, where it had to consider complaints of this nature, which may not, on the face of it, be deemed correctly before it. Notwithstanding, to safely arrive at that decision a full and careful examination must be carried out before that can be absolutely determined.

Accordingly, when examining complaints of this nature – regarding matters relating to Court proceedings – I note a much referenced and what I determine a leading commentary in relation to this issue, was eloquently addressed in Judy Walsh’s book, The Equal Status Acts 2000-2011, 2012 edition, Blackhall Publishing, at page 43 where she 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.” [my emphasis added.]

The case law supporting that contention is also emphatic.

I note the decision in Dec-S2009 -087 Fogarty v Employment Appeals Tribunal where at paragraph 4.8 of the decision the Equality Officer found, “[T]hat 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.”

This to me is a significant finding and this supports the view that the complaint is not correctly before the Workplace Relations Commission for consideration under the Equal Status Act, 2000.

Notwithstanding this finding, there also is a considerable matter of judicial immunity with regard to decisions relating to Court proceedings, which I hereby address for completeness.

In Kemmy v Ireland [2009] IEHC 178 the principle of judicial immunity and its purpose was addressed:

“This freedom from action and question at the suit of an individual is given by the law to the judges, not so much for their own sake as for the sake of the public, and for the advancement of justice, that being free from actions, they may be free in thought and independent in judgment, as all who are to administer justice ought to be.”

I note the Supreme Court decision in Beatty v The Rent Tribunal & Another [2006] 2 IR 191 where the Court expressly considered whether statutory tribunals were entitled to enjoy immunity from suit and negligence similar to that provided to Judges. Mr. Justice Geoghegan’s majority judgment affirmed that the Rent Tribunal was immune from actions and negligence, where he said,

“even though the respondent is a Tribunal which essentially determines rent disputes as between private parties, it is a statutory body exercising statutory duties in the public interest. In the circumstances, I am quite satisfied that, provided it is purporting to act bona fide within its jurisdiction, it enjoys an immunity from an action in ordinary negligence....In this respect it is in no different position from Court whether such Court be traditionally categorised as superior or inferior”.

The Supreme Court also determined that the absolute immunity on the basis of judicial immunity, for statutory adjudicative bodies was a matter for the legislature who created the body. Therefore, this indicates that prima facie statutory adjudicative bodies enjoy immunity from suit on the basis of the principle of judicial immunity unless there is an express provision countervailing against this in any statutory provision.

I do note in Beatty, Mr. Justice Geoghegan suggested that the principle of judicial immunity was not absolute but equally “he had considerable doubt” that an action for misfeasance in public office would lie “in circumstances where the Court or Tribunal was acting within jurisdiction.”

I am satisfied that judicial immunity applies to the within case.

Findings

The matters complained of relate to the conduct of a Judge in court proceedings.

Such matters are 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.

Accordingly, I am satisfied that this claim under the Equal Status Act is misconceived as it is incorrectly based in law.

Section 22 of the Equal Status Act, 2000 as amended provides that a claim may be dismissed at any time if an opinion is formed that it has been made in bad faith or is frivolous, vexatious or misconceived or relates to a trivial matter.

I, therefore, find that the complaint is misconceived and dismiss the complaint.

In view of the nature of the case and the findings, I am satisfied that there is no useful purpose in identifying the parties and accordingly I have decided to anonymise the parties in this decision.

I find that the complaint is misconceived and dismiss the complaint.

Equal Status Act - Misconceived - incorrectly based in law