Complainant

Respondent

Parties

Deirdre  Morgan

Workplace Relations Commission

Representatives

Act

Complaint Reference No.

Date of Receipt

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

CA-00039582-001

29/06/2020

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 Workplace Relations Commission (WRC).

Essentially, and in summary, the Complainant states that,

“On 30 December 2019, the Minister [XXX] had his legal representatives post me green victimisation material received by me on 6 January 2020. This made me ill. I had previously written to the Minister on 22nd October 2019 asking him to stop. This was done to make me ill. The Ministers legal team are aware that because I withdrew my appeal of the Equality Tribunal decision in 2012 that the findings of the Equality Officer in relation to my complaint against Adult Student X stands - that as a consequence of my withdrawal of the appeal I was free to enter my complaint of sexual harassment by Adult X in future complaints, such as the one I make here. I continue to be treated differently that other teachers, and adversely by the Minister and [a named Education and Training Board] because of my rejection of Adult X's conduct of a sexual nature. I continue to be subjected to victimisation in 2020 contrary to the plain and easy to follow orders made by the Equality Officer in 2012. I have since November 2019, using GDPR and FOI requests waited to receive a copy from the Ministers Department of the [a named Education and Training Board] document that Ministers legal team are quoting snippets from. I am still trying to get a copy of this document today 29th June 2020. The snippets being quoted from that document are contrary to the Equality Tribunal decision … the Minister and [named official] have omitted to ever share this document. The only part they have shared with me are these snippets. Omission is regarded as an act under the Employment Equality Act. I first became aware of the omission in October 2020 and I wrote to the Minister immediately. I lodged a complaint in January 2020 under the EE Act within the 6 month deadline. The omission continues. ... I make this complaint here on this date so that the snippets of victimisation I received on 6th January 2020 are within the 6 month time limit…”

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 Preliminary matter

The Complainant’s cases against the Workplace Relations Commission is that she “[N]amed the WRC as respondent under Section 77 (4)(b)as responsible for the treatment that continued while the WRC denied me the right of investigation for the reasons that it did and for the findings and actions it made while at the same time denying me an investigation under the Act, and for failing to stop investigating and making findings into the future/beyond the cognisable period and its jurisdiction - even when I asked it to stop”

The Complainant states in the said complaint form that “[a particular named] ETB and a Minister are my employers under the Act.”

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 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 – the Workplace Relations Commission - I have named the WRC as respondent under Section 77 (4)(b) as responsible for the treatment that continued while the WRC denied me the right of investigation for the reasons that it did and for the findings and actions it made while at the same time denying me an investigation under the Act, and for failing to stop investigating and making findings into the future/ beyond the cognisable period and its jurisdiction - even when I asked it to stop.”

I am satisfied that such a complaint as against the WRC does not comply with the requirements of section 77(1) of the Employment Equality Acts.

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 the WRC as a Respondent in her case.

I am satisfied that there are sufficient judicial remedies available to parties where they determine that the conduct of a tribunal or a court is not proper; or separately, when a decision issues and a party disagrees with that decision. However, I am also satisfied that those remedies do not include referring such a complaint to the Workplace Relations Commission for adjudication in those instances.

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 - Misconceived - incorrectly based in law