Complainant

Respondent

Parties

Olumide  Smith

Liam Duffy

Representatives

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00027001-001

06/03/2019

It is the Complainant’s claim that he was discriminated against, victimised and harassed on the ground of race by the Respondent on 27 September 2018. The ES.1 Form was dated 26 November 2018 by the Complainant with the responding ES.2 Form dated 8 January 2019. The Complainant submitted his claim to the Workplace Relations Commission on 6 March 2019.

The Complainant complains that he was discriminated against, victimised and harassed on the grounds of race by the Respondent at a hearing before the Workplace Relations Commission on 27 September 2018. In particular, it is his case that the Respondent, who is of “Caucasian racial or ethnic origin”, coughed in a “threatening, intimidating, degrading, and offensive manner” while the Complainant read his submission at the hearing. The Complainant notes that the Respondent did not cough while the other parties were speaking.

The Respondent did not accept that he coughed in the manner complained of by the Complainant.  The Respondent further states that he “regrets any offence taken by the Complainant due to any genuine coughing that took place that the hearing”. However, it was “not deliberate, malicious or due to the Complainant’s race or ethnicity.”

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”

The first question is to examine whether the Complainant in this case sought to access a “service” or obtain goods from 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.

The Complainant’s complains about the Respondent’s coughing at a hearing on 27 September 2018. The act of coughing does not fall within the meaning of goods or service as defined by the Equal Status Act. Furthermore, the Complainant failed to identify any basis for a claim of discrimination, victimisation or harassment by the Respondent on 27 September 2018.  Consequently, the claim falls to satisfy the requirements of the Equal Status Act 2000-2015.

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.”

This case simply cannot succeed where the Complainant did not seek to engage the services or obtain goods from the Respondent at the hearing on 27 September 2018. Consequently, this case sits squarely within the meaning of a “frivolous or vexatious” claim for the purposes of Section 22 of the Equal Status Act 2000-2015. This case is a lost cause to use the words of McCracken J in Fay v Tegral Pipes Limited.

I am satisfied that the complaint before me is a “frivolous or vexatious” claim as defined by Section 22 of the Equal Status Act 2000-2015. Consequently, I am dismissing the claim.

Equal Status – Lost cause