Complainant

Respondent

Anonymised Parties

A Child by his father as Next Friend

A Hospitality Business

Representatives

 No Appearance by or on behalf of the Complainant at hearing

Act

Complaint Reference No.

Date of Receipt

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

CA-00046293-001

18/09/2021

On 18 September 2021, the Complainant lodged a complaint of indirect discrimination related to the provision of gods and/or reasonable accommodation as defined by the Equal Status Act 2000. The complaint referred to other complaints before the WRC. The Complainant is a child and was introduced as being represented by his father, as next friend.

The Respondent operates a Hospitality Business and has denied the claim.

On 22 December 2022, I wrote to the next friend of the complainant, his father and requested sight of the ES1 notification form in the case. I did not receive a response. The Respondent presented the original ES1 form at hearing. I added this to the electronic file and returned the original to the Respondent in the case.

As the Complainant is introduced to the case as a Minor, I have used my discretion to anonymise the decision in accordance with section 25(2) of the Equal Status Act, 2000. The Complainant is a minor and the sensitivity of the matter warrants anonymisation.

The Complainant, represented by his next friend submitted a complaint of discrimination on grounds of disability against the Respondent business on 18 September 2021.

On this date, the Complainant submitted that he had notified the service provider using the ES1 notification form on 13 May 2021. He outlined that the first incident of discrimination was 19 March 2021, where he had been denied reasonable accommodation for a disability.

The details of the complaint CA-00046923-001 were particularised as being described as referenced in three different complaint headings, not incorporated in this file. The complaint was not appended by a chronology.

On 25 September 2021, the complainant submitted a “photo of the kiosk where the incident happened “

The complainant through his next friend referred to requests for data involving the next friend, but not the complainant. He attached a medical note in reference to the next friend, but not the complainant.

The substance of the complaint before me appears to be reflected in an email by the next friend dated 5 October 2021

“ .. My child wanted ice cream (not a mask) It is because I cannot wear a mask that he didn’t get an ice cream for himself, and was stripped of the joy of gifting an ice cream to each of the people he loves the most, his younger brother and his mother …

On 3 December 2021, the Complainant sought access to an FTP server for the purposes of submitting evidence.

He was requested to provide documents in PDF format.

There was no response to my request for sight of the ES1 form prehearing to assist in my investigation.

There was no appearance by the Next friend of the Complainant at hearing.

I was puzzled by this, given the application by the next friend to join the case, which had been accepted. The last communication received from the next friend arrived at WRC on 29 September 2022 as a request for hearing in ADJ 35212, the instant case.

I have waited the 5 days post hearing and the complainant has not made any contact with the WRC to explain or excuse his nonappearance.

The Respondent operates a hotel business and has denied all claims of discrimination raised. The Respondent was represented at hearing by their Director, who expressed a deep disappointment that the Complainant had not attended the hearing in this case.

The Respondent had collated a

The Respondent outlined a preliminary response to the claim. He stated that an issue arose not with the complainant in the case, but with the actions of the next friend during the restrictive 5 km limit during the national pandemic. This had previously been heard at WRC, which had ruled against the next friend, in his own right.

On 11 February 2022, the Respondent wrote to the WRC seeking a swift management of the case.

He enclosed inter party correspondence.

The Respondent wrote to the WRC in December 2022 and clarified that children were exempt from mask wearing.

He referred to and enclosed a number of WRC decisions concerning the next friend in this case, in his own right.

On the day of hearing, the Respondent made an outline statement that the child mentioned in this case had not been refused service. The child was exempt from mask wearing and was not discriminated against.

He outlined that an ES1 form had been received at the business in May 2021. He exhibited this document which stated that “complainant was ignored, being treated as invisible because his father has a disability that makes it impossible for the complainant s father to wear a face mask as demanded by staff. The complainant is 5 years old.”

The Respondent accepted that an ES2 form had not issued here but explained that the next friend in the case had made 15-20 phone calls to the business in the aftermath of the ES1 submission. This was in addition to applications for data.

The Respondent made a preliminary argument that this case should be dismissed as an abuse of process. He asked if there was any mechanism for the WRC to call out this abuse?  He submitted that he had personal understanding of disability and rejected all claims of discrimination against his business. The behaviour exhibited by the next friend in March 2021 had caused great upset amongst the staff. He clarified that the food truck was not a licenced premises.

He argued that the instant claim was frivolous and stood no chance of succeeding and for the good of society and the WRC reputation, this case should be dismissed.

He submitted that his business had to operate without his presence as he attended the hearing in this case, while there was no penalty applied to the complainant’s nonappearance at hearing.

The Respondent made a formal application for dismissal of the claim for indirect discrimination.

I have been requested to make a decision on whether the complainant represented by his next friend and father was discriminated against on 19 March 2021.

In arriving at my decision, I have taken account of the inter party correspondence on file. I have listened to the preliminary argument for dismissal of claim made by the respondent at hearing.

I have reflected on the nonappearance of the complainant as represented by his next friend and father. I have also reflected on the complainant refusal to submit to my request for the ES1 form prehearing. I would also have preferred if the Respondent had provided a response to the ES1 received. However, I accept the submissions that the Respondent business observed that it was “under severe pressure “from the complainant’s father by phone. The Respondent decided to defend the claim as a result.

The circumstances of this case appear to have occurred during the period of time March 2021, where national travel restrictions were live and applied to 5 km from home base.

As far as I can ascertain from the paucity of the prehearing documentation, which was marginally clarified by the exhibition of the ES1 form by the respondent, the complainant complaint refers to service of ice cream at a kiosk.

I have not had the benefit of oral evidence from the complainant in this case. I am satisfied that the Complainant was properly on notice of the hearing in this case. The notification of hearing was sent to the same email proffered by the complainant /next friend on 29 September 2022. I find the complainant /next friend decision not to attend the hearing to be unhelpful in this case and unreasonable.

I was unable to decipher the nature of the claim for indirect discrimination from the documents received from the complainant. These documents were not probative, and I was looking forward to obtaining clarity from both parties at hearing.

I have found the decision by the complainant/next friend not to attend the hearing as unreasonable in all the circumstances.

The WRC is focused on administering justice to both parties: Zalewski v WRC/ Adjudication Officer at Supreme Court refers [2021] IESC 24.

Instead, I am faced with a Respondent who has made a highly articulate and strongly felt application for the dismissal of the claim before me.

In fact, he went further in his arguments and enquired whether there could be some long-lasting impediment placed on the Complainant / next friend in raising matters without a basis before the WRC?

I asked the Respondent, if he was referring to an Isaac Wunder order, a mechanism of the High Court, normally and whether he wished to make a formal application for this?

The Respondent replied that he had expended sufficient energy on defending this case to date and simply wished to see it dismissed.

An Isaac Wunder order was recently the subject of two very interesting High Court Decisions by Ferriter J in the case of a teacher whose employment cased.

Deirdre Morgan v The Labour Court (Respondent) and Kildare and Wicklow Education and Training Board, Tusla, Health and Safety Authority, Department of Justice and Equality, Minister for Education and Skills, and Irish Human Rights and Equality Commission (Notice Parties)

Deirdre Morgan v Minister for Education and Skills (Respondent) and Kildare and Wicklow Education and Training Board (Notice Party)

[2022] IEHC  360 and 361, which opened asstatement on the order sought for an Isaac Wunder order and culminated in the granting of that order encompassing claims before the WRC.

It seems from a careful reading of this case, that power to impose an Isaac Wunder order rests with the High Court and not the Circuit Court or WRC, proper.

In the applications addressed in this judgment, the Minister for Education and Skills (“the Minister”) and Kildare and Wicklow Education and Training Board (“KWETB” or “the Board”) seek orders pursuant to the Court's inherent jurisdiction restraining Deirdre Morgan (for ease, “the appellant”) from instituting any further proceedings in whatever Court or forum, including the Workplace Relations Commission (“WRC”), or from making any complaints to the WRC against the Minister or Board, concerning any matter relating to the appellant's term of employment with the Board, including any matter related to the suspension or termination of her contract of employment, and her pension and gratuity entitlements, without the prior leave of the High Court (the Minister and the Board having been put on notice of any such application for leave.) This form of orderis commonly known as an Isaac Wunder order named after the subject of such an orderby the Supreme Court in 1967. Somewhat unusually, the orders sought extend not just to the institution of court proceedings but to the making of complaints to the WRC.

2. The Minister and the Board also seek orders pursuant to the Court's inherent jurisdiction striking out a variety of complaints against them to the WRC that have not yet been finally determined in that forum, on the grounds that the complaints are frivolous and/or vexatious and/or an abuse of process, being duplicative of previous complaints arising from the appellant's removal from employment which have been the subject of final and binding determinations against the appellant.

3. Finally, the Minister and the Board also seek orders pursuant to the Court's inherent jurisdiction striking out proceedings instituted by the appellant against them in the Circuit Court and the Board seeks an order striking out proceedings instituted by the appellant against it in the High Court on the basis that both these proceedings are an abuse of process.

4. All of the WRC and court proceedings relate in one form or another to the removal of the appellant from her position as an art teacher in a community college run by the Board. The appellant was removed from her position by order of the Minister of 15 June 2015, following a lengthy disciplinary inquiry process instituted by the Board (which included an appeal) and an inquiry process conducted by an inspector appointed by the Minister which culminated with the Minister taking the view that the appellant was no longer fit for office.

Ferriter J outlined that the basis of an Isaac Wunder order in the authorities supports a jurisdictional aim

 is to protect the integrity of the administration of justice by providing a filter to weed out the issue and prosecution of proceedings where such proceedings would amount to an abuse of process.

Ferriter J in referring to a host of Irish and UK Authorities granted the Order requested in Morgan

In my view, the facts of this matter are an exemplar of abuse of the important right of access to the courts which is protected under article 40.3 of the Constitution and article 6 of the European Convention of Human Rights. The appellant's obsessive campaign of litigation by way of the serial lodging of complaints with the WRC, and by way of Circuit Court and High Court proceedings, including High Court appeals on supposed points of law and applications for leave to apply for judicial review, have occasioned an enormous drain of resources on the Department and the Board. Both the Minister and the Board put evidence before the Court of the very significant time and costs incurred by them in dealing with the appellant's barrage of proceedings. The Minister's Department and the Board, which are ultimately funded by the taxpayer, are entitled to be protected from further unnecessary harassment and expense. The appellant's campaign of abuse of process has to be brought to an end.

146. I will accordingly grant the Isaac Wunder -type orders sought by the Minister and the Board.

I have referred to this case and the reasoning therein for illustrative reasons. I do not have the power to apply such an order in this case.

Application to dismiss the case: Section 22, Equal Status Act, 2000

Dismissal of claims.

The law on dismissal of claim is provided at section 22 of the Equal Status Act, 2000. It is not a step to exercise capriciously and requires thought and balance.

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.

(2) Not later than 42 days after the Director of the Workplace Relations Commission dismisses a claim under this section, the complainant may appeal against the decision to the Circuit Court on notice to the Director of the Workplace Relations Commission specifying the grounds of the appeal.

(3) On appeal the Court may affirm or quash the decision.

(4) No further appeal lies, other than an appeal to the High Court on a point of law.

I have given some consideration made to the application to dismiss this claim by the respondent. The grounds of this application were that the claim was groundless and could not succeed.

I have reflected on this application. The Equal Status Act, 2000 is an important remedial statute which has allowed complainant to seek redress for their right to obtain goods and services in this country without bias against protected grounds. It is powerful as we have seen in the seminal cases of

Thompson v Iarnrod Eireann DEC S2009 -15, which found indirect discrimination on disability ground as well as failure to reasonably accommodate a visually impaired customer. In addition, the case taken by Mary Stokes on behalf of her son John in Stokes v CBC High School, Clonmel which culminated in the Supreme Court ruling in [2015] IESC 13, demonstrates the through put on a challenge on the perceived exclusionary clause in the school admission policy.

These have been followed by so many determinative judgements and decisions on the topic of discrimination.

In order for a case to succeed in passage in investigation, a complainant / next friend must first establish they are covered by a discriminatory ground. I have not received this assurance in this case.

In the absence of the complainant / next friend at hearing, I have been unable to capture the essence of the case made. From my investigation, it would seem that the circumstances pertain to the complainant being unable to nominate his father to buy an ice cream at an ice cream kiosk. However, in the absence of a written submission and evidence from the next friend at hearing, I am unable to ascertain what exactly being claimed.

The ES1 form submitted by the Respondent does not mention the ground of disability, but rather mentions victimisation and “being treated as invisible because his father had a disability “

Reluctantly, I must decide that this claim is misconceived, and I now move to apply the provisions of section 22 of the Act and dismiss the claim against the nonappearance of the complainant / next friend at hearing and the failure to submit to a request for ES1 form.

The claim for indirect discrimination on grounds of disability is misconceived and stands dismissed.

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.

I must decide that this claim is misconceived, and I now move to apply the provisions of section 22 of the Act and dismiss the claim against the nonappearance of the complainant / next friend at hearing and the failure to submit to a request for ES1 form.

The claim for indirect discrimination on grounds of disability is misconceived and stands dismissed.