Complainant

Respondent

Anonymised Parties

Complainant

Media Organisation

Representatives

No Appearance

Mr. Graeme Murray, Solicitor

Act

Complaint Reference No.

Date of Receipt

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

CA-00039753-001

08/09/2020

On 8th September 2020, the Complainant referred a complaint under the Equal Status Acts to the Commission. By subsequent correspondence, he alleged that the Respondent had discriminated against him on the grounds of disability by failing to follow his instructions in relation to an advertisement he placed in one of their editions. In denying this allegation, the Respondent submitted that they followed and complied with each of the Complainant’s instructions. They denied any allegation of discrimination on the grounds of disability or any knowledge of the Complainant’s disability at the relevant time. They further submitted that the Complainant did not meet with the notification requirements imposed by the Act.

A hearing in relation to the same was convened for, and finalised on, 24th July 2023. The Complainant failed to attend this hearing as scheduled. In the absence of any rationale for the Complainant’s non-attendance at this hearing, the matter proceeded in his absence. In circumstances whereby the Complainant’s medical history is referenced, I have exercised my discretion to anonymise the decision in its published form.

The Complainant did not attend the hearing to give evidence or otherwise prosecute the allegations relevant to the complaint.

Having review the file I am satisfied that the Complainant was aware of the time, date and venue of the hearing. In this regard I note that the correspondence inviting the Complainant to the hearing was issued by way of registered post, which was subsequently returned as undelivered. Notwithstanding the same, the notice of hearing was also issued by ordinary post to the address provided the Complainant for such purposes.  In circumstances whereby the Complainant did not apply for an adjournment of the hearing, or seek to explain his absence thereafter, the matter proceeded in his absence.

In circumstances whereby the Complainant did not attend the hearing to pursue the Complainant, the Respondent submitted that the same should be dismissed. Notwithstanding the same, the Respondent submitted that they absolutely denied any allegation of wrong-doing and were willing to defend the allegations as submitted. In addition to the foregoing, the Respondent submitted that the Complainant had not complied with the notification requirements imposed by the Act.

Prior to assuming jurisdiction in relation to this matter, a Complainant must establish that they have complied with the notification requirements stipulated by the Act. In particular, Section 21(2) of the Act (as amended) provides that,

“Before seeking redress under this section the complainant—

(a) shall, within 2 months after the prohibited conducted is alleged to have occurred, or, where more than one incident of prohibited conduct is alleged to have occurred, within 2 months after the last such occurrence, notify the respondent in writing of—

(i) the nature of the allegation,

(ii) the complainant’s intention, if not satisfied with the respondent’s response to the allegation, to seek redress under this Act”.

Thereafter, subsection 4 provides that,

“The Director of the Workplace Relations Commission…shall not investigate a case unless the Director of the Workplace Relations Commission…satisfied either that the respondent has replied to the notification or that at least one month has elapsed after it was sent to the respondent.”

In the matter of G -v- Department of Social Protection [2015] IEHC 419, O’Malley J. held that,

“...the Act is intended to cover a broad range of human life and activity, and that its overall purpose is to reduce the social wrong of discrimination based on improper considerations. Having regard to the principles applicable to remedial statutes, it should be construed widely and liberally.”

In the present case, the Complainant has been provided with an opportunity to attend a hearing and present his case, including evidence in relation to his compliance with Section 21. In the absence of any such evidence, there is no indication that the requirements of Section 21 have been complied with and as such the complaint cannot succeed.

In addition to the foregoing, the Respondent submitted that the complaint is frivolous and vexatious and could not succeed in any event.

In this regard, Section 22 of the Act provides that,

“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, misconceived or relates to a trivial matter.”

In the matter of Patrick Kelly v The Information Commissioner [2014] IEHC 479 the High Court held that,

“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.”

In the matter of Smith -v- Office of the Ombudsman and Ors [2021] IEHC 285,the Court of Appeal held as follows,

 “It is clear that the appellant has researched and fully understands the law and legal principles applicable to the complaints he has advanced under the Equal Status Acts. However, he resolutely refuses to accept that such complaints, in order to succeed, must be grounded on sufficient evidence to establish, in the first instance, a prima facie case of racial discrimination. It is difficult to avoid the conclusion that, faced with a decision he does not like, or that is in some way adverse to his interests, the response of the appellant is invariably to accuse the decision-maker of racial discrimination. This is a wholly unacceptable abuse of process, is highly and gratuitously offensive to those against whom he levels such unsubstantiated complaints and perhaps worst of all, is potentially undermining of the very processes put in place by the Oireachtas to root out discriminatory practices and to provide redress to those affected by such practices where they are truly warranted. This is so not least because of the very significant time required to be expended by various organs of the State in dealing with the appellant’s spurious complaints”.

Regarding the instant case, it is apparent that the Complainant was dissatisfied with a service provided by the Respondent. On foot of the same, the Complainant issued the present complaint, alleging that a staff member of the Respondent organisation had engaged in discrimination on the grounds of disability. Notwithstanding the same, it was noted by the Respondent that the person referenced on the initial set of complaint papers was not, and never had been, an employee of the Respondent.  Similar to the factual matrix described in Smith, referenced above, the Complainant provided no evidence of any description as to support such an inference of discrimination or how the basis for his conclusions in this regard. In addition to the same, the Complainant failed to attend a hearing whereby he might clarify his position and provide sworn evidence in support of the same.

Having regard to the foregoing, it is apparent that the present complaint is misconceived. In such circumstances, the complaint is dismissed in accordance with Section 22 of the Act.

Having regard to the foregoing, and the non-attendance of the Complainant at the hearing as scheduled, I find that the complaint is misconceived and dismiss the same in accordance with Section 22 of the Act.  

I find that the complaint is misconceived and dismiss the same in accordance with Section 22 of the Act. 

Notification, Non-attendance