Complainant

Respondent

Parties

Leon O'Connor

S & P Global Inc

Representatives

Self 

McCann Fitzgerald Solicitors

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00054467-001

10/01/2023

The Complainant submitted a complaint under section 77 of the Employment Equality Acts 1998 – 2021 on 10 January 2023.

On his complaint referral form, the Complainant alleged that he had been discriminated against by the Respondent on the religious ground.

The narrative statement in the complaint form includes the following:

“My complaint for breach of employment equality legislation is noted against the Irish Government and affiliated worldwide international Governments who on religious grounds have pursued a highly personalised campaign against me due to my close association with the spiritual workings of the universe and the fact that a virus (COVID 19) emanated out of a valid legal case which I tried to bring before the Irish courts against my employer …”

The Respondent denies the Complainant’s allegation that the rejection of his applications for employment amounts to discrimination on the ground of religion under the Acts and does not accept that it has acted in any way in breach of the Acts as alleged, or at all.  The Respondent is committed to ensuring equal treatment for all of its employees and prospective employees, as documented in its policies including the Respondent’s Conduct of Business Ethics.  The Respondent’s decisions regarding the applications for the roles, including the decisions on the Complainant’s applications, were based on the criteria set out in the job specifications; these are non-discriminatory.

Without prejudice to the foregoing, the Respondent would characterise the complaint as a frivolous and vexatious one, disclosing no prospect of success. Furthermore, or in the alternative, the Complainant has failed to establish a prima facie case as required under the Acts. Without prejudice to the foregoing, it is denied that discrimination on the grounds of religion arises, whether as claimed or at all.  There is no indication given of any religion in the complaint, nor is or was the Respondent at any time aware of any information relating to the religion or religious belief of the Complainant. Accordingly, it is submitted that there is no basis to the Complaint made against the Respondent and that the WRC should dismiss it in its entirety. 

Section 77A(1) of the Acts provides that “The Director General of the Workplace Relations Commission may dismiss a claim at any stage if of the opinion that it has been made in bad faith or is frivolous, vexatious or misconceived or relates to a trivial matter.” The Respondent submits that the Commission should exercise its jurisdiction pursuant to section 77A of the Act and dismiss the instant complaint on this basis.

The Respondent submits that the terms “frivolous”, “vexatious”, “misconceived” and “trivial” are not defined by the Act but have been interpreted by Birmingham J in O’N v McD [2013] IEHC 135, where he noted that the term “frivolous”, in a context such as this, meant a complaint that was futile or hopeless in the sense that it was incapable of achieving the desired outcome; because there is no reasonable prospect of success, it is frivolous to bring the case. It also imposes a hardship on the Respondent because it is required to expend time, effort and costs (including legal costs) in defending an action which cannot succeed; this he said is regarded by the Courts as vexatious. In circumstances where no particulars of the complainant’s religious belief or lack thereof are disclosed either in his job applications to the Respondent, or his complaint to the WRC, the case, being one of discrimination on religious grounds, is bound to fail. The only reference in the complaint form is to the Complainant’s “close association with the spiritual workings of the universe and the fact that a virus (Covid-19) emanated out of a valid legal case I tried to bring before the Irish Courts against my employer”. No religious belief (being a ‘religious background or outlook’ as defined in section 2 of the Acts) is disclosed. In any case, the Respondent was unaware of any such belief at the time of the rejection of his job applications. As in other cases in which the Complainant has alleged religious discrimination during a job application process, religion was not mentioned on the CV or in any inter party correspondence.

The Respondent notes from the database of the WRC that the Complainant appears to have taken like complaints against a large number of other prospective employers, including Bank of America, Susquehanna, Uisce Eireann, Permanent TSB, Macquarie, Allied Irish Bank, Dunnes Stores, Engage People Recruitment, Finance Ireland, Elavon Financial Services and BCM Global. The Respondent notes the comments of the Adjudication Officer in the case taken against Permanent TSB (being ADJ-00040783, in which the Complainant failed to appear):

“I note from the published decisions on the website of the WRC that this is the fourth occasion on which Mr O’Connor has failed to attend a hearing of a complaint he submitted under the Employment Equality Act against various financial institutions.  His conduct in this regard is vexatious and a waste of the resources of the WRC and the respondents against whom he submitted complaints.”

The Respondent submits that the Complainant has now failed to appear in at least twelve cases according to adjudication decisions published on the WRC’s database and that this complaint continues the line of vexatious litigation by the Complainant against prospective employers.

Subsection 77(4)(b) of the Employment Equality Acts 1998 – 2021 (the Acts) defines the term “respondent” as the person who is alleged to have discriminated against the complainant.  In his complaint form, the Complainant names S & P Global Inc as the Respondent. 

However, in the narrative setting out his complaint, as cited earlier in this decision, the Complainant alleges that: “My complaint for breach of employment equality legislation is noted against the Irish Government and affiliated worldwide international Governments who on religious grounds have pursued a highly personalised campaign against me due to my close association with the spiritual workings of the universe …”.  The Complainant does not allege discrimination on the religious ground against the Respondent named in the Complainant form.

Subsection 77A (1) of the Acts provides that the Director General 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”. It is clear that for a complaint to be dismissed as misconceived under Section 77A (1) of the Employment Equality Acts, the Director General must be satisfied that the complaint is based on a fundamental misunderstanding of the legislation, or that there is no arguable cause of action or finally, that it is entirely unfounded.  

It is clear from the complaint form submitted in relation to this complaint, that the Complaint is alleging religious discrimination against the Irish Government and numerous unspecified entities which are not named as the Respondent to the complaint.

I note that Birmingham J. provided a legal definition of “frivolous” in Nowak v. Data Protection Commissioner [2012] IEHC 499, where he held that: “frivolous, in this context does not mean only foolish or silly, but rather a complaint that was futile, or misconceived or hopeless in the sense that it was incapable of achieving the desired outcome”.  I am of the view that this complaint is clearly encompassed by the legal definition of frivolous articulated by Birmingham J. in Nowak. 

I further note In J. O’N -v- S McD & ors [2013] IEHC 135, Birmingham J, in considering applications made by the defendants to strike out the plaintiff’s claim for failing to disclose a reasonable cause of action and as being frivolous and/or vexatious, described the words “frivolous” and “vexatious” as follows:

“…the words “frivolous” and “vexatious” are terms of art, they are legal terms and they are not used in a pejorative sense. They merely mean that the plaintiff has no reasonable chance of succeeding and that, because there is no reasonable chance of success, it is frivolous to bring the case. By the same token it imposes a hardship on the defendant if he has to expend time, effort and money in defending an action which cannot succeed and that is regarded as vexatious…”

In dismissing the plaintiff’s case, Birmingham J stated as follows:

“…In my view the plaintiff has no reasonable chance of succeeding against the first named defendant and it would be oppressive to require the defendant to have to take on the burden of defending proceedings which are fundamentally misconceived…”

I also note the decision in Goode Concrete v. CRH plc [2012] IEHC 116 where, at para. 36, it was stated: -

“A plaintiff's right of access to the Courts is not absolute and the Court has jurisdiction to prevent the right being abused by, for example, dismissing a case for inordinate delay or as frivolous, vexatious or bound fail in order to prevent injustice to a defendant (see Barry v Buckley [1981] IR 306).”

In light of all of the above, I am satisfied that this complaint is misconceived.  Therefore, I dismiss this complaint in accordance with section 77A (1) of the Employment Equality Acts.

I am satisfied that this complaint is misconceived, and I dismiss this complaint in accordance with Section 77A (1) of the Employment Equality Acts.

Misconceived complaint.