ADJ-00031236

ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00031236

Parties:

Complaint:

Date of Adjudication Hearing: 

Workplace Relations Commission Adjudication Officer:  Brian Dalton

Procedure:

In accordance Section 25 of the Equal Status Act, 2000,following the referral of the complaint to me by the Director General, pursuant to section 22 of the Act, I decided in the first instance to determine if the matter complained of was misconceived, vexatious or frivolous.

Background:

Preliminary Matter:

Section 3 of the Equal Status Act 2000 as amended states:

3.— (1) For the purposes of this Act discrimination shall be taken to occur —

(a) where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) or, if appropriate, subsection (3B), (in this Act referred to as the ‘discriminatory grounds’) which —

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) where a person who is associated with another person —

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination,

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;

The provision of a public service such as public representative clinics does fall under the ambit of the Act.

Judy Walsh in the Equal Status Acts 2000-2011, 2012 edition, Blackhall Publishing, at page 43 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.”

Public Representative clinics do not constitute functions of a public law nature and similar to other public bodies a distinction is drawn between the administrative function and the public law functions of such bodies.

The complainant detailed his complaint as follows:

“My said request to him was about legitimate child safety concerns held by me in relation to insufficiently designed adjoining toilet cubicles of the Gents toilets of Swords Pavilions shopping centre for the purposes of privacy and protection from gay perverts/paedophiles which as such poses a grave risk for children having need to use these toilet facilities.”

He stated that he lodged the ES 1 Form on time.

He stated that the last incident of discrimination was on the 21st of November 2020.

He stated that he was discriminated by a person, organisation/company who provides goods, services or facilities.

He stated that he was discriminated against by reason of religion.

Prima Facie the statement of complaint is discriminatory, offensive and homophobic.

He stated that:

“My request to the Respondent was for him to provide a service to me by highlight the gay pervert/paedophiles in Swords pavilions public toilets risk to innocent children at the monthly meeting of Fingal County Councillors. Consequent of the Respondent not acting upon my legitimate request it can reasonably be held by reasonable members of society…”

The bringing of this complaint against a public representative is misconceived and vexatious. It is not frivolous (although that term is a technical one, as explained in Delaney and McGrath on Civil Procedure 4th Edition 2018.)

The meaning of the words “frivolous or vexatious” as used in the context of s.10(1)(b)(ii) of the Data Protection Act 1988 as amended was considered by Birmingham J in Nowak v Data Protection Commissioner,28 where he stated 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.” This description was referred to by Irvine J in her judgment in the Court of Appeal in Fox v McDonald,29 where she stated that “the word ‘frivolous’ when used in the context of O. 19 r, 28 is usually deployed to describe proceedings which the court feels compelled to terminate because their continued existence cannot be justified having regard to the relevant circumstance.” She added as follows:

Proceedings which are regularly struck out as “frivolous” or “vexatious” are proceedings clearly destined to cause irrevocable damage to a defendant, such as where a defendant is asked to defend the same claim for a second time or where a plaintiff seeks to avail of the scarce resources of the courts to hear a claim which has no prospect of success.30

I note also the following from Delaney and McGrath:

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The attitude which the courts take to abuse of process is well summarised by MacMenamin J in his judgment in Tracey v Burton107 in the following terms:

[A] court is entitled to generally have regard to the manner in which proceedings are conducted. While the jurisdiction to strike out proceedings for abuse of process, in one form or another, is to be exercised sparingly, it is a sanction which cannot be ignored. Similarly, while parties have a right to defend proceedings, it may be necessary to identify the manner in which defendants’ rights are best vindicated. A court may, under the Constitution, take whatever proportionate steps are necessary to protect the integrity of its own processes and procedures, and the inherent right of courts, themselves, to manage their own procedures in a manner which balances the rights of litigants with the rights of the public, and other litigants.

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In Fay v Tegral Pipes Ltd112 in delivering judgment in the Supreme Court, McCracken J noted that while the words “frivolous and vexatious” are frequently used in relation to applications to have a claim dismissed, in his view the real purpose of the jurisdiction was to ensure that there would not be an abuse of the process of the courts. He stated as follows:

Such abuse cannot be permitted for two reasons. Firstly, the Courts are entitled to ensure that the privilege of access to the Courts, which is of considerable constitutional importance in relation to genuine disputes between parties, will only be used for the resolution of genuine disputes, and not as a forum for lost causes which, no matter how strongly the party concerned may feel about them, nevertheless have no basis for a complaint in law. The second, and equally important, purpose of the jurisdiction is to ensure that litigants will not be subjected to the time consuming, expensive and worrying process of being asked to defend a claim which cannot succeed.113

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In his judgment in Doherty v Minister for Justice, Equality and Law Reform115 McGovern J stated that he completely agreed with the dicta of McCracken J in Fay v Tegral Pipes Ltd116 and added that “in addition to not permitting the courts to be a forum for lost causes, the courts should not be used to facilitate general abuse of a person or class of persons.” He stated that the courts are not to be used as a forum for ventilating complaints but rather for resolving genuine disputes between parties to litigation and that “to permit the plaintiff’s action to proceed would be to allow a parody of justice to take place”. He concluded as follows:

Access to the courts is a constitutional right and entitles litigants to certain privileges. This carries with it certain obligations. That is why the courts will not permit abuse of process as to do so would bring the system of justice into disrepute.117

The purpose of the Equal Status Act is to ensure that discrimination in the provision of services should not occur where:

(2) As between any two persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are:

(a) that one is male and the other is female (the “gender ground”),

(b) that they are of different civil status  (the “ civil status ground”),

(c) that one has family status and the other does not or that one has a different family status from the other (the “family status ground”),

(d) that they are of different sexual orientation (the “sexual orientation ground”),

(e) that one has a different religious belief from the other, or that one has a religious belief and the other has not (the “religion ground”),

(f) subject to subsection (3), that they are of different ages (the “age ground”),

(g) that one is a person with a disability and the other either is not or is a person with a different disability (the “disability ground”),

(h) that they are of different race, colour, nationality or ethnic or national origins (the “ground of race”),

(i) that one is a member of the Traveller community and the other is not (the “Traveller community ground”),

Based on the proposition as set out in the complaint form the complainant is insisting that a public representative make representations on his behalf to support what is clearly a homophobic and discriminatory proposition. In other words, he seeks to rely on the protections that the Act affords regarding the provision of services to prevent discrimination to seek a declaration that the public representative should make representations that are clearly homophobic, discriminatory, offensive and unlawful. To maintain that position is absurd.

Section 22 of the Act states:

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.

I dismiss this complaint as it is misconceived and vexatious. 

Summary of Complainant’s Case:

Summary of Respondent’s Case:

Findings and Conclusions:

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. However, section 22 provides that a claim may be dismissed if an opinion has been formed that the complaint is misconceived.

Dated:   05-05-22

Workplace Relations Commission Adjudication Officer:  Brian Dalton

Key Words: