ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00024796
Parties:
| Complainant | Respondent |
Parties | Olumide Smith | Philip Lee Trustee Services Limited |
Representatives |
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Complaint:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000 | CA-00031486-001 | 07/10/2019 |
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer: Úna Glazier-Farmer
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:
It is Complainant’s claim that he was discriminated against and harassed on the ground of race by the Respondent on 8 April 2019. The ES.1 Form was dated 31 May 2019 by the Complainant with a reply from the Respondent dated 28 June 2019. The Complainant submitted his claim to the Workplace Relations Commission on 7 October 2019. |
Summary of Complainant’s Case:
The Complainant stated he was of someone Yoruba racial or ethnic origin. The Complainant claimed that the Respondent “ disproportionately exceeded your bounds and subjected me to a threatening, intimidating, degrading, offensive, disrespectful, dismissive, disdainful and abusive treatment at the material Time that you infected the said Court matter as above with the irrelevant evidences listed below in clear violation of my equal right to fair procedures, equal treatment and human rights on grounds of racial or ethnic origin”. The Complainant referred to two cases; one before the civil courts and the other before the Workplace Relations Commission. |
Summary of Respondent’s Case:
The Respondent stated in its letter of 28 June 2019 that it was not involved whatsoever in the proceedings before the Circuit Court referred to the ES1 Form of 31 May 2019. The Respondent confirmed that it had not been instructed by the parties in the case. |
Findings and Conclusions:
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 Respondents within the meaning of Section 2 (1) of the Act on the day. The onus is 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 failed to adduce any evidence whatsoever never mind establish a prima facia case that (a) he sought to engage the services of the Respondent or (b) that he was discriminated against by the Respondent. Section 22 – Equal Status Act 2000 In light of the above, 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.” It is obvious that this case cannot succeed where the Complainant did not adduce any evidence that he sought to engage the services of the Respondent. Therefore, the case falls at the first hurdle of the Equal Status Act 2000-2015. Consequently, the claim sits squarely within the meaning of “frivolous or vexatious” claim for the purposes of Section 22 of the Equal Status Act 2000-2015. |
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.
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. |
Dated: 15th July 2022.
Workplace Relations Commission Adjudication Officer: Úna Glazier-Farmer
Key Words:
Equal Status – Good and Services- Frivolous or Vexatious- Dismissal of Claim |