Complainant

Respondent

Parties

Deirdre  Morgan

Irish Human Rights and Equality Commission

Representatives

Act

Complaint Reference Nos.

Date of Receipt

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

CA-00033542-001

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-00033542-002

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 Irish Human Rights and Equality Commission (IHREC).

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 IHREC as a respondent because I need an Equality Authority replacement for the help that the Authority was giving me, in particular I need help with dealing with the procurement of victimisation and discrimination from others by her employer, enforcing the orders of the Equality Tribunal and to pick up where the Authority had to leave off in relation to the offence of disclosing to others on my complaint to the tribunal contrary to Section 97(2) of the Act. [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.

IHREC 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 relating to discrimination under Section 77(1) of the Employment Equality Acts 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.

The Respondent said that the Complainant does not claim that she was discriminated against or subjected to victimisation, or dismissed in circumstances amounting to discrimination or victimisation, or that she has not received remuneration in accordance with an equal remuneration term, or that she has not received a benefit under an equality clause by it.

The complaint as against the IHREC does not comply with the requirements of section 77(1) of the Employment Equality Acts regarding the referral of a claim for redress. There is no employment relationship between the Complainant and IHREC nor has there ever been such a relationship. Moreover, the Complainant does not claim that she has or ever had an employment relationship with IHREC. Indeed, the Complainant specifically states that her employers are the first and fourth named respondents on her complaint form to the WRC. The Respondent said that it appears that the Complainant named IHREC as a respondent because of its statutory role with regard to the promotion of equality rights and to gain its assistance.

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 that this complaint relates to discrimination by way of an occupational pension under the Pensions Act 1990 as amended by the Social Welfare (Miscellaneous Provisions) Act Section 81E of the Pensions Act provides where that: (1) A person who claims not to be receiving, or not to have received, equal pension treatment in accordance with this Part or to have been penalised in circumstances amounting to victimisation may, subject to subsections (3) to (6) and subsections (1) and (2) of section 81F, seek redress by referring the case to the Director General of the Workplace Relations Commission.

Section 81E(4) of the Pensions Act in breach of the principle of equal pension treatment, (b) the person who is responsible for admitting members to a scheme, (c) the person who is alleged to be responsible for the victimisation.

The Respondent said that the Complainant does not allege as against IHREC any discrimination in breach of the principle of equal pension treatment nor to have been penalised in circumstances amounting to victimisation. The complaint as against IHREC does not comply with the requirements of section 81E(1) of the Pensions Act regarding the referral of a claim for redress. IHREC is not the person who is alleged to have discriminated against the complainant in breach of the principle of equal pension treatment and is not the person responsible for admitting members to the pension referred to in the complaint form. In addition, the complainant does not allege as against IHREC that it is responsible for any victimisation in this regard. Therefore, IHREC does not fall into any of the categories as set out in section 81E(4) of the Pensions Act.

The Respondent said it is clear that IHREC has no involvement with the occupational pension scheme in question. Indeed, the complainant specifically states that the trustees of the scheme are the first named respondent on her complaint form to the WRC. It appears that the complainant named IHREC as a respondent because of its statutory role with regard to the promotion of equality rights and to gain its assistance.

S.77A. refers to the dismissal of claims: (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.

It is submitted that the complaint against IHREC is misconceived in law as it is incorrectly named as a respondent - since it does not have and never has had an employment relationship with the complainant - and no claim of discrimination/victimisation/breach of equal remuneration term or equality clause has been made against it.

The Preliminary matter

The complaint is made against IHREC and results from what the Complainant claims is a need for help that the Equality Authority was giving her previously to deal with the enforcing of orders against her employer of the Equality Tribunal. She submits that IHREC should “pick up where the [Equality] Authority had to leave off in relation to the offence of disclosing to others on my complaint to the tribunal contrary to Section 97(2) of the Act.”

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 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 - Irish Human Rights and Equality Commission - was named because, “I have named IHREC as a respondent because I need an Equality Authority replacement for the help that the Authority was giving me, in particular I need help with dealing with the procurement of victimisation and discrimination from others by her employer, enforcing the orders of the Equality Tribunal and to pick up where the Authority had to leave off in relation to the offence of disclosing to others on my complaint to the tribunal contrary to Section 97(2) of the Act.”

I am satisfied that such a complaint as against the IHREC 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 Irish Human Rights and Equality Commission as a Respondent in her case.

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