Complainant

Respondent

Parties

Leon  O'Connor

National Treasury Management Agency

Representatives

Self

Arthur Cox

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-00052568-001

02/09/2022

The Complainant submitted a complaint under section 77 of the Employment Equality Acts 1998 – 2021 on 2 September 2022.

On his complaint referral form, the Complainant alleged that he had been discriminated against by the Respondent on the religious ground.

The narrative statement in the complaint form includes the following:

“My complaint for breach of employment equality legislation is noted against the Irish Government and affiliated worldwide international Governments who on religious grounds have pursued a highly personalised campaign against me due to my close association with the spiritual workings of the universe and the fact that a virus (COVID 19) emanated out of a valid legal case which I tried to bring before the Irish courts against my employer …”

The Respondent submits that the Complainant has failed to articulate any stateable basis upon which he has been discriminated and his complaint form fails to disclose any claim with a reasonable prospect of success.

On this basis, the Respondent submits that it would be appropriate for the Acting Director General to exercise her powers under section 77A (1) of the Acts.

The Respondent cites the following authorities in support of its position: John and Angela Tongans and Children -v- Clare County Council (DEC-S2008-039), Fitzgerald v Minister for Community, Equality And Gaeltacht Affairs [2011] IEHC 180, Fay -v- Tegral Pipes Limited & Ors [2005] 2 IR 261, J. O’N -v- S McD & ors [2013] IEHC 135, Moylist Construction Ltd v Doheny [2016] IESC 9 and Kevin Tracey v. Irish Times Ltd. & Ors [2019] IESC 62.

Subsection 77(4)(b) of the Employment Equality Acts 1998 – 2021 (the Acts) defines the term “respondent” as the person who is alleged to have discriminated against the complainant.  In his complaint form, the Complainant names the National Treasury Management Agency as the Respondent. 

However, in the narrative setting out his complaint, as cited earlier in this decision, the Complainant alleges that: “My complaint for breach of employment equality legislation is noted against the Irish Government and affiliated worldwide international Governments who on religious grounds have pursued a highly personalised campaign against me due to my close association with the spiritual workings of the universe …”.  The Complainant does not allege discrimination on the religious ground against the Respondent named in the Complainant form.

Subsection 77A (1) of the Acts provides that 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 clear that for a complaint to be dismissed as misconceived under Section 77A (1) of the Employment Equality Acts, the Director General must be satisfied that the complaint 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.  

It is clear from the complaint form submitted in relation to this complaint, that the Complaint is alleging religious discrimination against the Irish Government and numerous unspecified entities which are not named as the Respondent to the complaint.

I note that Birmingham J. provided a legal definition of “frivolous” in Nowak v. Data Protection Commissioner [2012] IEHC 499, where 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”.  I am of the view that this complaint is clearly encompassed by the legal definition of frivolous articulated by Birmingham J. in Nowak. 

I further note In J. O’N -v- S McD & ors [2013] IEHC 135, Birmingham J, in considering applications made by the defendants to strike out the plaintiff’s claim for failing to disclose a reasonable cause of action and as being frivolous and/or vexatious, described the words “frivolous” and “vexatious” as follows:

“…the words “frivolous” and “vexatious” are terms of art, they are legal terms and they are not used in a pejorative sense. They merely mean that the plaintiff has no reasonable chance of succeeding and that, because there is no reasonable chance of success, it is frivolous to bring the case. By the same token it imposes a hardship on the defendant if he has to expend time, effort and money in defending an action which cannot succeed and that is regarded as vexatious…”

In dismissing the plaintiff’s case, Birmingham J stated as follows:

“…In my view the plaintiff has no reasonable chance of succeeding against the first named defendant and it would be oppressive to require the defendant to have to take on the burden of defending proceedings which are fundamentally misconceived…”

I also 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).”

In light of all of the above, I am satisfied that this complaint is misconceived.  Therefore, I dismiss this complaint in accordance with section 77A (1) of the Employment Equality Acts.

I am satisfied that this complaint is misconceived, and I dismiss this complaint in accordance with Section 77A (1) of the Employment Equality Acts.

Misconceived complaint.