Complainant

Respondent

Parties

Catherine  Dunne

June`s Convenience Store Ltd

Representatives

James O’Donnell, B.L. instructed by Keaveny Walsh and Co Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00043641-001

17/04/2021

The complainant outlined in her submission that she believes that she was discriminated against by the respondent who refused to serve her as she was not wearing a face mask.  The respondent denies the claim and submits that this complaint should be dismissed as frivolous and vexatious as it is the sixth such complaint submitted against them by the complainant and some of these have already been adjudicated on by the WRC and the complainant has not appealed these.

The respondent’s representative made an application to have this case dismissed on the basis that this was the sixth set of proceedings arising out of three sets of similar occasions with the respondents.  These are identical complaints and three have already been adjudicated upon and the complainant has not appealed these decisions.

It was submitted on behalf of the respondent that these proceedings are brought “to tie the respondents up in a knot”.  As these complaints have already been adjudicated upon and it is a gross misuse of procedure to continue to lodge similar claims. 

The within proceedings have to be looked at in the context of all these proceedings and there cannot be a further hearing until this matter is decided.

There is a provision within the Act, Section 22 which clearly provided for an adjudication officer to dismiss a complaint if he or she is of the opinion that it is frivolous or vexations.   It was submitted on behalf of the respondent that submitting six complaints arising out of the same issues falls within the ambit of frivolous and vexations. 

The respondent and his wife operate a small rural convenience store and post office and these proceedings are costly and involve diverting a considerable amount of time away from their store.

Several cases were cited by the respondent’s representative including Fay v Tegral Pipes Limited & Ors [2005] 2 IR 261; The Supreme Court Case of Angela Farrell v The Governor and Company of Bank of Ireland and others [2012] IESC 42 and many others which held a similar view.

The complainant attended the respondents store on 03/12/2020.   The complainant submits that she was discriminated against on the grounds of disability.  She attended the store to make a purchase and was told by an assistant that she was not allowed to serve her.  She was informed that this was an instruction from the respondent.  The basis for this refusal was because she was not wearing a face mask and the complainant believes that the signs on display stating, “No mask No Entry Protect All” and “No Mask No Service” were discriminatory.  The complainant outlined in her submission that she was prevented from wearing a face mask because of her disability.

At the hearing the complainant stated that she had no prior notice of the respondent’s application to have the case dismissed under Section 22 of the Equal Status Act and she would have expected that such notice should have been given 15 days prior to the hearing in line with the Workplace Relations Commission’s procedures. 

The complainant consented to an adjournment to allow her to make a written response to this application.  She agreed that she would be able to do so within one week.

The incident complained of took place on 3rd December 2020.  The form ES1 was furnished to the respondent on 01/02/2021 and the complainant submitted her complaint to the WRC on 21/04/2021.

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 availableto 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;”

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) she sought to access a service or obtain goods from the Respondent that were available to the public generally and (b) she 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.

At the hearing the respondent made an application to have these proceedings dismissed on the basis that they are frivolous or vexatious.  The complainant was not aware of this application until the hearing commenced.  She was given a period of time to consider the matter and when the hearing resumed, she indicated that it was her position that the application should have been submitted 15 days prior to the hearing in order to comply with the WRC requirements.

The adjudication officer decided to adjourn the hearing to allow the complainant time to submit a written response to this application.   She agreed that one week would be sufficient.

The respondent’s legal representative had submitted a letter to the WRC the evening prior to the hearing requesting that the complaints should be dismissed as they were “nothing more than an abuse of process, frivolous and vexatious”.  A copy of this letter was issued to the complainant the day after the hearing, and she received clarification in relation to why it was not possible to have this sent to her in advance of the hearing.

The complainant did not submit any response and no further communication was received from the complainant up to one month post hearing date, i.e., 17/04/2023

In light of the above I must consider 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.

I am satisfied that this claim is misconceived.  On that basis, I dismiss the complaint in accordance with Section 22 of the Equal Status Act.

Face mask.  Discrimination.  Frivolous and vexatious.