Complainant

Respondent

Parties

Olumide  Smith

Cisco Systems Internetworking (Ireland) Limited

Representatives

 Lewis Silkin Ireland

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00028075-001

04/04/2019

It is  Complainant’s claim that he was discriminated against, harassed and victimised as a result of his race by the Respondent on 23 January 2019, 23 September 2015 and 19 October 2012. The ES.1 Form was submitted to the Complainant on 22 February 2019 with the claim being submitted to the Workplace Relations Commission on 4 April 2019.

The Respondent filed its ES.2 Form on 11 March 2019.

It is the Complainant’s case that on 23 January 2015, the Respondent’s HR Manager who is someone of Caucasian racial or ethnic origin subjected him to a threatening, intimidating, degrading, harassing and offensive treatment on the grounds of race or ethnic origin during a hearing before the Equality Tribunal with artificial coughs.

A second claim that on 19 December 2012, a HR Manager with the Respondent who was Caucasian harassed, threatened, intimidated, abuse and/or victimised him with repeated threatening, intimidating, degrading and offensive artificial coughs which she only made at the time the Complainant presented his oral submission to the grievance appeal panel.

On 23 January 2019,the Complainant complains that the Respondent appeared with its Lawyers before the High Court and instructed them to” harass, threaten, intimidate, abuse and/or victimise” him with “repeated threating, intimidating, degrading and offensive [artificial]” coughs by the Respondent’s Lawyer. 

The Complainant states that he is of Yoruba racial or ethnic origin.

The Respondent filed a submission on 7 June 2019.

The Respondent submitted that the claims dated 2012 and 2015 were out of time as the Complainant did not notify the Respondent within two months of the alleged incident.

It was submitted that the hearing before the High Court was an appeal by the Complainant against a decision of the Labour Court on 23 January 2019. IT was denied that the Respondent instructed its legal team to harass, threaten, intimidate, abuse and/or victimize the Complainant.

The Respondent submits denies any discrimination and sought dismissal of the claim pursuant to Section 22 of the Equal Status Act 2000.

Time Limit

Section 21 (2) of the Equal Status Act 2000 provides specific time limits on the such claims:

“(2) Before seeking redress under this section the complainant—

(a) shall, within 2 months after the prohibited conducted is alleged to have occurred, or, where more than one incident of prohibited conduct is alleged to have occurred, within 2 months after the last such occurrence, notify the respondent in writing of—

(i) the nature of the allegation,

(ii) the complainant's intention, if not satisfied with the respondent's response to the allegation, to seek redress by referring the case to the Director,

and

(b) may in that notification, with a view to assisting the complainant in deciding whether to refer the case to the Director, question the respondent in writing so as to obtain material information and the respondent may, if the respondent so wishes, reply to any such questions.”

There are two incidents complained of in this case that fall outside the time limit set out in Section 21 (2); the first being 23 January 2015 and the second on 19 December 2012, where the ES1 Form was not furnished to the Respondent until 22 February 2019. Thereby, falling outside the 2 month time limited provided for in the Act. Consequently, I have no jurisdiction to decide on these claims.

The third claim is dated 23 January 2019 with the ES1 dated one month later on 22 February 2019 with the claim being submitted to the Workplace Relations Commission on 4 April 2019. Therefore, falling within the time limit of Section 21 (2).  

Section 5 – Equal Status Act 2000

Section 5 (1) of the Equal Status Act 2000 provides:-

“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.”

For completeness Section 2 (1) of the Act defines what constitutes a “service” and “goods”:

“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;”

Goods are defined in as; “means any articles of movable property”

There is a question as to whether the Complainant in this case sought to access a “service” of the Respondent within the meaning of Section 2 (1) of the Act.

There is an onus on a Complainant seeking redress pursuant to the Act to establish that (a) he sought to access a service of the Respondent that was available to the public generally and (b) he was discrimination against on the stated grounds of discrimination.

The Complainant’s claim relates to his former employer and then Defendant before the High Court on 23 January 2019. There is absolutely no evidence before me that Respondent was available to offer a service to the Complainant in Court room 6 of the High Court on 23 January 2019. Furthermore, there is nothing in the Complainant’s ES1 or ES3 Forms or accompanying submissions to identify any evidence as to how the alleged discrimination is said to have occurred in accordance with Section 5 of the Act.  Consequently, the claim falls to satisfy the requirements of the Equal Status Act 2000-2015.

Section 22 of Equal Status Act 2000

In light of the above conclusion it is worth considering whether Section 22 of the Equal Status Act 2000 is appropriate which provides for dismissal of claims:-

“22.— The Director may dismiss a claim at any stage in the investigation if he or she is of opinion that the claim has been made in bad faith or is frivolous or vexatious or relates to a trivial matter.”

It is widely accepted by the Courts that the terms are legal terms which can be often used interchangeably as held by the Barron J in Farley v Ireland, [1997] IESC 60:

“So far as the legality of matters is concerned frivolous and vexatious are legal terms. They are not pejorative in the 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”.

In 2005, McCracken J reiterated this in Fay v Tegral Pipes Limited & Ors [2005] 2 IR 261, stressing that the ‘real purpose’ of the courts’ inherent jurisdiction to dismiss frivolous or vexatious claims was firstly, to ensure that the courts would be used only for the resolution of genuine disputes and not for ‘lost causes’ and, secondly, that parties would not be required to defend proceedings which could not succeed.

The terms “frivolous or vexatious” were carefully considered by the High Court in Patrick Kelly v The Information Commissioner[2014] IEHC 479 instructive as to the meaning of these terms:

“As a matter of Irish law, the term “frivolous or vexatious” does not, as noted by Birmingham J. in Nowak, necessarily carry any pejorative connotations but is more concerned with the situation where the litigation (or, in this instance, application) can be described as futile, misconceived or bound to fail.

Where a person engages in a pattern of litigation (or applications as in the present instance) which not only come within those descriptions but can be said to be actuated by ill-will or bad faith, such conduct may properly be described as vexatious.”

Irvine J in the High Court in Behan v McGinley [2011] 1 I.R. 47 and reiterated by Laffoy J  in Loughrey v. Dolan[2012] IEHC 578, relied on a decision of the Ontario High Court in Re Lang Michener andFabian (1987) 37 D.L.R. (4th) 685 which listed a number of factors which tend to indicate that proceedings may potentially be vexatious in nature and thus amenable to being struck out. These factors, which are not meant to be exhaustive, are:

“• whether the issues in dispute are matters which have already been determined by a court of competent jurisdiction, i.e. res judicata;

• where it is obvious that an action cannot succeed, or if the action will lead to no possible good, or if no reasonable person can expect to obtain relief;

• where the action is brought for an improper purpose, including harassment and oppression of other parties, as opposed to asserting legitimate legal rights;

• where issues sought to be litigated tend to be rolled forward into subsequent actions and repeated and supplemented;

• where the person instituting the proceedings has failed to pay the costs of unsuccessful proceedings;

• where the plaintiff persistently takes unsuccessful appeals against judicial decisions.”

This case cannot succeed where the Complainant did not seek to engage the services of the Respondent at the hearing before the High Court in January 2019. Consequently, this case sits squarely within the meaning of “frivolous or vexatious” claim for the purposes of Section 22 of the Equal Status Act 2000-2015.

Having very carefully considered the complaint before me, I am satisfied that it is a “frivolous or vexatious” claim for the purposes of Section 22 of the Equal Status Act 2000-2015. Consequently, I am dismissing the claim.

Equal Status – Time- Dismissal of Claim- Section 22 – Frivolous and Vexatious