Representatives

 Complainant

A Public Body

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00047068-001

08/02/2021

It is the Complainant’s claim that he was discriminated against, harassed and victimised on the ground of race and victimisation by the Respondent from 26 April 2018 to 13 November 2020. The ES.1 Form is dated 8 January 2021. The Complainant stated he notified the Respondent on 8 January 2021. The Complainant submitted an ES.3 Form to the Workplace Relations Commission which was received on 11 February 2021.

The Complainant complains that he was discriminated against, harassed and victimised on the grounds of race and victimisation by the Respondent. On 26 May 2020, he was provided with a business card with an email address by an individual working in the courts for correspondence in connection with a matter he was involved with before the High Court. On 13 November 2020, the Complainant received an email from that same person working in the court with a judgment of the High Court attached. However, the email address differed from that on the business card to that on the email received. It is the Complainant’s case that the Respondent, “moved the Goal Post in relation to the correct email addresses to use for email communications”. A copy of the business card was provided by the Complainant along with the email received by him dated 13 November 2020.

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 Respondent within the meaning of Section 2 (1) of the Act.

There is an onus on a Complainant seeking redress pursuant to the Act to establish that (a) he sought to access a service or obtain goods from the Respondent that were available to the public generally and (b) he was discrimination against on the stated grounds of discrimination.

I find that the Complainant was accessing a service from the Respondent which is available to the public.

It is now for the Complainant to prove that he was discriminated by the Respondent in accessing this service on the grounds of race. In the correspondence between the Respondent and Complainant there are emails advising him of the Court procedures and the changes as a result of the Covid19 pandemic. It is noted that the time frame of the discrimination complained of is May 2020 – November 2020 which was the height of the Covid19 pandemic when there were considerable restrictions in place.

Having carefully read the file and in particular the email of 13 November 2020 of which the Complainant complains that there was a difference in the email address noted on a business card and that on an email received by him. It is his claim that this email discriminated against, harassed and victimised him on the grounds of race and victimisation.

It is of relevance in this case that the email complained was sent from the Respondent to the Complainant. It is exhibited and confirmed as being received by the Complainant in his submissions.  The Complainant does not identify in either the ES.1 or ES how he was discriminated against by whether the email was the same or different to the business card he was provided with. This is an essential component of any claim under the Equal Status Acts 2000-2015. Consequently, the Complainant has failed to establish a claim under the Equal Status Act 2000-2015 as against the Respondent.

Section 22 of Equal Status Act 2000

In light of the above conclusion 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 and Fabian (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.”

I find that this Complainant has no success of this claim against the Respondent. In conclusion, I find that this claim falls within the meaning of “frivolous or vexatious” pursuant to Section 22 of the Equal Status Act 2000-2015. For this reason, I have also decided to anonymise the names of the parties.

I am dismissing this claim pursuant to Section 22 of the Equal Status Act 2000-2015.

Equal Status – Discrimination - frivolous and vexatious