Complainant

Respondent

Anonymised Parties

A Legal Representative

Chairman of a Division of the Labour Court

Representatives

  Self

Labour Court Registrar

Act

Complaint Reference No.

Date of Receipt

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

CA-00053310-001

13/10/2022

The Complainant, who was the legal representative of a complainant at a hearing of the Labour Court, submits that she was discriminated against on the disability ground by the Chairman of a Division of the Labour Court who failed to make reasonable accommodation for her disability.

The Complainant submits as follows:

The Complainant has Parkinson’s disease.  It affects her right hand, and she cannot write.  The Complainant informed the Court of this and asked the Court to accommodate her.  During the hearing, the Complainant found it difficult to find appendices and quotes at the speed the Chairman required, and they berated her loudly on many occasions about where the material in the booklets was.  The Complainant tried to tell the Chairman that their shouting at her when she was slow to answer or to provide reference material was affecting her ability to do the best job for the person she was representing but they refused to stop. 

Parkinson’s disease affects the Complainant’s voice and the constant berating by the Chairman made it worse.  Prior to the hearing, the Complainant had asked the Court to allow her time to put and answer questions.  The Complainant had to make the decision not to finish questions she had ready due to the constant berating.

Parkinson’s affects the Complainant’s mobility.  If she sits for prolonged periods, she gets stiff.  As a result, she asked, both orally and in writing, for frequent breaks.  On the morning of the hearing, the Court Secretary told the Complainant that she would be accommodated but her request was ignored by the Chairman. 

The Complainant needs to take medication eight times a day.  The Complainant was forced to ask in public for a break at 11.30am to take medication.  There was no coffee break allowed.  The Complainant had been sitting in the Court room since 9.45am.

The Complainant’s bladder is badly affected by Parkinson’s, and she needs frequent breaks.  At 12.30pm, the Complainant was again forced to ask for a break.  The Chairman said loudly to the Court, “What for now” and the Complainant had to explain that she needed a cup of tea and a break.

The Complaint submits that the Chairman said that the barrister representing the other side was better and more professional than she was and that this was directly due to her disability and not being able to respond quickly.

The Complainant wrote to the Labour Court after the hearing and asked to whom she could make a complaint.  The Labour Court did not respond.  She made the complaint anyway and sent it to the Labour Court.  The Chairman about whom she complained was the person who examined her complaint.  The Chairman rejected the complaint.

Conclusion

The Complainant submits that the Chairman made a show of her because of her disability, ignored the requests for accommodation that she had made in advance and then ruled on her complaint.

The Registrar of the Labour Court, on behalf of the Respondent, submits as follows:

The Complaint is made against a member of the Court and the exercise of their statutory functions during the hearing of a case in which the Complainant was a representative. It is the position of the Labour Court that the procedures in a hearing of the Labour Court are regulated by rules made under s. 20(5) of the Act of 1946 which states that: "Subject to this section, the Court may make rules for the regulation of its proceedings."

At the relevant time, the Labour Court Rules 2020 were in force. Rule 34 therein states as follows: "The conduct of the hearing of an appeal will be regulated by the Chairman of the Division of the Court before which the appeal is being heard."

The Complaint centres on matters that occurred during the course of the hearing and the decisions that the Chairman of the Division of the Court made in relation to same on the day.  It is the position of the Labour Court that in making decisions during the hearing of the case, the Chairperson of the Division of the Court was exercising powers pursuant to statute, to ensure that there was a fair hearing as between the parties to the hearing, i.e., the Complainant's client and the opposing party.

While the position of the Labour Court is that the hearing was run fairly on the day, the WRC is not the appropriate forum for any complaint in relation to the running of the hearing.  If the position of the Complainant is that her client was disadvantaged by the way that the hearing was run, she has other avenues of redress open to her. 

As found by O'Donnell C.J. in Zalewski at para. 109, the function of the Labour Court is considered to be the administration of justice. If the Complainant was aggrieved by the way that her client's case was affected, she could have appealed that decision on a point of law to the High Court, which is a remedy available as of right, or could have judicially reviewed the decision if she felt it was made unfairly. As set out in that case at para. 117, in the High Court, the Labour Court "may be reviewed not merely for what it has done but, as this case illustrates, how it has done it".

It is the position of the Labour Court that the administration of justice is not a "service" within the meaning of the Equal Status Act 2000. These are functions that are of a public law nature and therefore fall outside non-discrimination legislation.  In this regard, the Labour Court relies on the reasoning of the decisions in A Complainant v. An Officer of the Court ADJ-00025566 and A Complainant v. An Employer of a Judge ADJ-00035826.

In A Complainant v. An Officer of the Court ADJ-00025566, the complaint concerned the conduct of court proceedings where the Complainant alleged that they were bullied, harassed, and victimised.  The Adjudication Officer considered the definitions in relation to service in s. 2 of the Equal Status Act and also the power to dismiss claims under s. 22. The Adjudication Officer considered previous cases and commentary in the area:

"I note a plethora of decisions taken by the WRC and its predecessor, the Equality Tribunal, where it had to consider complaints of this nature, which may not, on the face of it, be deemed correctly before it. Notwithstanding, to safely arrive at that decision a full and careful examination must be carried out before that can be absolutely determined.

Accordingly, when examining complaints of this nature — regarding matters relating to Court proceedings — I note a much referenced and what I determine a leading commentary in relation to this issue, was eloquently addressed in Judy Walsh's book, The Equal Status Acts 2000-2011, 2012 edition, Blackhall Publishing, at page 43 where she states:

"Equivalent UK provisions have been subject to fairly extensive interpretation (McColgan, 2005, pp 255-285; Monaghan, 2007, pp 505-508). In a number of cases UK courts concluded that 'services' were confined to acts of similar kind to acts that might be carried out by a private person. Therefore, functions that are of a public law nature (i.e. enforcement, regulatory and control functions) have fallen outside the scope of that country's non-discrimination legislation. "

The case law supporting that contention is also emphatic.

I note the decision in DEC-S2009 -087 Fogarty v Employment Appeals Tribunal where at paragraph 4.8 of the decision the Equality Officer found:

"That the adjudication and decision making function of the respondent under the Unfair Dismissals Acts is not a "service" or “facility" which is available to the public. The respondent is exercising a quasi judicial decision making function which is not subject to the terms of the Equal Status Acts. Therefore I find that any aspect of this complaint which refers to the decision making function of the respondent is misconceived.

This to me is a significant finding and this supports the view that the complaint is not correctly before the Workplace Relations Commission for consideration under the Equal Status Act, 2000. "

The Adjudication Officer went on to consider "for completeness" judicial immunity with regard to decisions relating to court proceedings. It is submitted that this reasoning should be also applied to the Labour Court on foot of the findings in the Supreme Court in Zalewski as noted above.

A Complainant v. An Employer of a Judge ADJ-00035826 concerned a complaint against an employer of a Judge in relation to proceedings that took place in February 2020 where it was alleged that the Respondent bullied, harassed and victimised the Complainant.  Here again, the Adjudication Officer considered the definitions in relation to service in s. 2 of the Equal Status Act and also the power to dismiss claims under s. 22. They similarly quoted from Judy Walsh's book, The Equal Status Acts 2000-2011 at page 43 and again the decision in Fogarty at para. 4.8 of that Decision:

"That the adjudication and decision-making function of the respondent under the Unfair Dismissals Acts is not a "service" or “facility" which is available to the public. The respondent is exercising a quasi-judicial decision-making function which is not subject to the terms of the Equal Status Acts. Therefore, I find that any aspect of this complaint which refers to the decision-making function of the respondent is misconceived."

The Adjudication Officer concluded that: "This to me is a significant finding and this supports the view that the complaint is not correctly before the Workplace Relations Commission for consideration under the Equal Status Act, 2000."

Again, in this case, the Adjudication Officer went on to consider judicial immunity, which it is submitted is also applicable to the instant case. The Adjudication Officer ultimately concluded as follows:

"The matters complained of relate to the conduct of a Judge in court proceedings.  Such matters are not a service or facility available to the public and do not constitute a service as defined under the Equal Status Act, 2000 as amended.

Accordingly, I am satisfied that this claim under the Equal Status Act is misconceived as it is incorrectly based in law.

Section 22 of the Equal Status Act, 2000 as amended provides that a claim may be dismissed at any time if an opinion is formed that it has been made in bad faith or is frivolous, vexatious or misconceived or relates to a trivial matter.

l, therefore, find that the complaint is misconceived and dismiss the complaint."

The Labour Court in addition relies on the decision in Olumide Smith v. The Labour Court ADJ00006187 where in the Adjudication Officer dismissed the claim against the Labour Court in relation to the conduct of the Court in relation to Mr. Smith's case. The Adjudication Officer, citing again Walsh in The Equal status Acts 2000-2011 and the decision of the Equality Officer in Fogarty, found as follows:

"Based on the foregoing this claim is misconceived as it is incorrectly relying on the Equal Status Act 2000 as amended to bring an action, because the complainant takes issue with the conduct of a Labour Court hearing and determination. The Labour Court was fulfilling quasi judicial functions as set down in statute and those functions are covered by the principle of judicial immunity. The quasi-judicial and the decision-making functions of the Court is not a service or facility available to the public and do not constitute a service as defined under the Equal Status Act 2000 as amended.

The Labour Court is subject to judicial oversight and Judicial Review. On a point of law the complainant may refer a matter to the High Court."

The Adjudication Officer also approved the statement of the House of Lords in Arenson v. Casson Beckman Rutley & Co [1975] 3 All ER 901 at 918 that judicial immunity in the discharge of functions "include, of course, persons forming tribunals”.  The Adjudication Officer proceeded to dismiss the claim under s. 22 of the Equal Status Act 2000 as amended.

In this case, the Complainant is directly impugning the decision-making functions of the Labour Court, and that is not properly done by way of complaint to the Workplace Relations Commission. The position of the Labour Court is that the above referenced cases are directly dispositive of the matter.

It is also the position of the Labour Court that the hearing was run fairly for the parties to the hearing and that a grievance by a representative as to how they, rather than their client, was treated does not impugn the decision of the Court which would in any event have to be ventilated in another forum.

Conclusion

In conclusion therefore, it is the position of the Labour Court that this case is misconceived and should be struck out by the Director under s. 22(1) of the Equal Status Act 2000 in advance of hearing.

The Complainant is taking issue with decisions of the Labour Court in a hearing when it was administering justice in relation to her client and another party pursuant to its rules as provided for in statute. This was not a service within the meaning of the 2000 Act. The Complainant has remedies elsewhere if the Court erred in law. It is our position that the Workplace Relations Commission does not have a statutory function in relation to the examination of decisions of the Labour Court.

The Law

Section 2 of the Equal Status Act 2000, as amended, (the Act) defines a service as:

“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;”

Disposal of goods and provision of services is dealt with by Section 5 and section 5(1) of the Act reads,

“(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.”

Section 22 of the Act provides for the dismissal of complaints to the Workplace Relations Commission, at any stage in the proceedings, where such complaints are deemed to be frivolous, vexatious or misconceived:

“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.”

In view of the Labour Court’s correspondence cited elsewhere in this decision, and its submission which is summarised above, I am faced with a serious preliminary issue which requires careful consideration, namely whether I have the jurisdiction to hear this complaint or, as posited by the Respondent, the Labour Court is engaged in the administration of justice and is, therefore, immune from litigation.  

The Labour Court is the sole appellate body for Adjudication Officer decisions of the Workplace Relations Commission.  When performing this role, the Labour Court is supported by its administrative service.  I am of the view that there is no exclusion under section 2 of the Act which covers the Labour Court and that it is difficult to imply any such exemption within the legislation as the Court is providing a service which is available to the public generally.  Therefore, I am of the view that, on the face of it, this complaint is validly before me for adjudication pursuant to section 2 of the Act being a service or facility within the meaning of the Act.  While the administrative function of the Court may well come within the scope of the Act, I must now consider if, when exercising its adjudicative function, the Labour Court is engaged in the administration of justice, and is, consequently, immune from litigation.

The immunity from litigation enjoyed by those engaged in the administration of justice is well established in Irish law.  In Kemmy v Ireland [2009] IEHC 178 the principle of judicial immunity and its purpose was addressed in the following manner:

“This freedom from action and question at the suit of an individual is given by the law to the judges, not so much for their own sake as for the sake of the public, and for the advancement of justice, that being free from actions, they may be free in thought and independent in judgment, as all who are to administer justice ought to be.”

The first matter for me to establish, is whether the Labour Court was engaged in the administration of justice when it heard the case which led to the referral of this complaint.

I note the dicta of O’Donnell J in Zalewski v. Adjudication Officer and WRC, Ireland and the Attorney General [2021] IESC 24:

“In my view, the function of the W.R.C., and the Labour Court on appeal, is the administration of justice.  It is not coincidental that the parallel jurisdiction in the U.K. is conferred upon a tribunal understood to be performing a judicial function and part of the judicial system.”

In the case which gave rise to this complaint, the Labour Court was acting as the appellant body for a decision of the Workplace Relations Commission in accordance with the provisions of section 83(1) of the Employment Equality Act 1998 (as amended) which provides for appeals from the WRC to the Labour Court as follows:

“(1) (a) A party to a case referred to the Director General of the Workplace Relations Commission under section 77 of the Act of 1998 may appeal a decision of the Director General given in an investigation in relation to that case under section 79 of that Act to the Labour Court and, where the party does so, the Labour Court shall—

(i) give the parties to the appeal an opportunity to be heard by it and to present to it any evidence relevant to the appeal,

(ii) make a decision in relation to the appeal affirming, varying or setting aside the decision of the adjudication officer to which the appeal relates, and

(iii) give the parties to the appeal a copy of that decision in writing.

(b) The Labour Court shall have power to grant such redress in an appeal under this paragraph as the Director General has power to grant in an investigation under section 79 of the Act of 1998.”

Applying the dicta of O’Donnell J in Zalewski, I find, that when hearing the case which led to this complaint, the Labour Court was engaged in the administration of justice.

For completeness, I will now, investigate if judicial immunity extends to statutory tribunals.  I note the Supreme Court decision in Beatty v The Rent Tribunal & Another [2006] 2 IR 191 where the Court expressly considered whether statutory tribunals were entitled to enjoy immunity from suit and negligence similar to that enjoyed by judges. Mr. Justice Geoghegan’s majority judgment affirmed that the Rent Tribunal was immune from actions and negligence, where he said:

“even though the respondent is a Tribunal which essentially determines rent disputes as between private parties, it is a statutory body exercising statutory duties in the public interest. In the circumstances, I am quite satisfied that, provided it is purporting to act bona fide within its jurisdiction, it enjoys an immunity from an action in ordinary negligence.... In this respect it is in no different position from Court whether such Court be traditionally categorised as superior or inferior”.

I also note in Beatty, Mr Justice Geoghegan suggested that the principle of judicial immunity was not absolute but equally “he had considerable doubt” that an action for misfeasance in public office would lie “in circumstances where the Court or Tribunal was acting within jurisdiction”.  Bearing in mind that, elsewhere in this decision, I have found that the Labour Court was acting within its jurisdiction when it heard the case which gave rise to this complaint, I fail see how judicial immunity can be set aside in this instance.

In Beatty, Mr Justice Geoghegan also determined that any immunity must be removed by statute and that the absolute immunity on the basis of judicial immunity for statutory adjudicative bodies was a matter for the legislature who created the body. This suggests, therefore, that prima facie statutory adjudicative bodies enjoy immunity from suit on the basis of the principle of judicial immunity unless there is an express provision countervailing against this in any statutory provision.  As no such countervailing statutory provision is in place in relation to the Labour Court when acting within its jurisdiction, I find that the Labour Court is entitled to claim statutory immunity in this instance.

I find the judgment of the UK Supreme Court in P (Appellant) v Commissioner of Police of the Metropolis (Respondent) [2017] UKSC 65 to be persuasive in determining the preliminary issue where at para 37, Lord Hughes expanded on the purpose of judicial immunity in the following manner:

“I add only that the principle of judicial immunity serves a legitimate end and generally achieves a proportionate and useful purpose. It exists for the protection not only of tribunal members, but also of witnesses, against further litigation inspired by what may well be deep disappointment on the part of those who have not been successful in contested proceedings before the tribunal. It also prevents most collateral challenges to the decisions of tribunals which have been set up, usually by legislation, with the task of making a final decision. The proliferation of litigation is not generally in the public interest, which is best served by a single, final, decision after due process, appealable in the event of demonstrated error of law or principle.”

In light of all of the above, I am satisfied that the Labour Court is entitled to claim judicial immunity in this instance and, accordingly, I do not have the jurisdiction to hear the case.  I find, therefore, that the complaint is misconceived.  Section 22 of the Equal Status Act, 2000 as amended provides that a claim may be dismissed at any time if an opinion is formed that it has been made in bad faith or is frivolous, vexatious or misconceived or relates to a trivial matter.  Accordingly, I dismiss this complaint.

In view of the nature of the case and the findings, I am satisfied that there is no useful purpose in identifying the parties and accordingly I have decided to anonymise the parties in this decision.

I declare that the complaint is misconceived and dismiss the complaint.

Equal Status Act - misconceived – absence of jurisdiction