Complainant

Respondent

Anonymised Parties

Employee

Employer

Representatives

Aisling Doyle Kane Tuohly LLP Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00048700-002

16/02/2022

The Complainant is seeking adjudication by the Workplace Relations Commission under Section 77 of the Employment Equality Act, 1998 and has submitted that he has been subjected to unlawful treatment and discrimination on the grounds of family status by way of continuing discrimination which is impacting on his livelihood and ability to earn a living. (CA-00048700-002).

The Complainant joined Respondent in July 1988 as a financial advisor and ultimately was employed as a Investment and Insurance Manager before his dismissal in September 2002. The Complainant is currently self employed as a regulated financial adviser.

The Complainant alleges that the reason for his dismissal began with a complaint from his first wife to the Respondent about an equity release mortgage loan document for their family home which she said was not signed by her.

The Complainant alleges that, the Respondent, without any formal investigation of his wife’s complaint decided that the Complainant was involved in a fraud and dismissed him from his employment for gross misconduct. The Complainant did pursue an unfair dismissal case but said he was unable to continue these proceedings due to financial reasons.

In 2008, the Respondent issued proceedings against the Complainant and relied on the aforesaid mortgage document to obtain a summary judgement in 2010 and then register same on his current home.

The Complainant alleges that there is ongoing  discrimination against him which is impacting his livelihood and his ability to earn a living. The Respondent are pursuing an instalment order against the Complaint which he alleges is based on the “fraudulent” summary judgement. The impact of the instalment order proceedings requires the Complainant to satisfy ongoing fitness and probity regulations as set out by the Central Bank.

The Complainant alleges that the direct impact of this ongoing discrimination is he is unable to comply with the fitness and probity requirements of the central bank and accordingly this will prohibit him from earning a living to support his family.

The Complainant alleges that the substance of his complaint is continuing discrimination based upon original discrimination due to his family status as the husband of his former wife.  

This Complaint was received by the Workplace Relations Commission on the 16th February 2022

The Respondents provided written submissions on the 18th November 2022 in relation to the substantive complaint  but  also raised a preliminary objection to this matter proceeding to oral hearing pursuant to Section 77A of the Employment Equality Act 1998.

The Respondent submitted that the reason for the Complainants dismissal was a finding that the Complainant’s wife had not signed a loan application documentation with the Respondent in spite of a signature been contained on the documentation. An investigation found there was no reasonable explanation for the loan application signature of the Complainants first wife other than the Complainant been directly or indirectly involved in signing his wife’s name. Dismissal was deemed to be an appropriate sanction and these findings were upheld by the Respondent following two appeals by the Complainant and his dismissal was confirmed on the 21st of August 2003.

In December 2003 the Complainant issued High Court  proceedings seeking declaratory relief as well as damages for breach-of-contract, loss of reputation and exemplary damages in relation to the  termination of his employment alleged that the dismissal resulted from a flawed investigation and breached fair procedures. Ultimately these proceedings were struck out by the High Court for want of prosecution on the  14th of April 2021 as opposed to the Complainant stating the case could not continue due to financial reasons.

In the interim, the Respondent issued summary proceedings against the Complainant seeking to enforce by way of judgement the loan provided to him which was the subject matter of the disciplinary proceedings. On the 17th of April 2012 judgement was granted in favour of the Respondent in the sum of €159,707.14 and  a judgement mortgage  was registered in 2013.

In January 2016 the complaint issue proceedings as against the Respondent alleging deceit and fraud in relation to loan documentation. The Complainant discontinued the proceedings by notice dated the 16th of December 2019 but has indicated through Solicitors correspondence that he will pursue this issue by way of other means.

The Respondent submitted that the Complaint herein should be dismissed, without the necessity for oral hearing, on the basis that the within  proceedings were made in bad faith or are frivolous, vexatious or misconceived or relate to a trivial matter.

In that regard the Respondent has submitted these matters are res judicata as they have already been ventilated in the High Court. The Complainant has not been an employee since 2002 so there is an unjustifiable delay in bringing these proceedings and, further, are statute barred.

It is the respondents position that these proceedings should be struck out and are frivolous and vexatious and without merit.

In the circumstances of this matter, I have carefully listened to the evidence tendered in the course of this hearing by both parties.  The Complainant was afforded an opportunity to respond to the Respondents submissions in writing but has not availed of that option.

The Complainants employment with the Respondent effectively ended on the 21st August 2003 following a number of appeals following his initial dismissal. The Complainant states on his Workplace Relations Complaint form that the most recent date of discrimination was on the 20th January 2022. However, the Complainant has not provided any details in relation to this alleged act either in the statement on the said form, his background letter or in the form of any other submissions.

Section 77 (5) and (6)  of the Employment Equality Act, 1998 provides:

(5) Subject to subsection (6), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of the occurrence or, as the case may require, the most recent occurrence of the act of discrimination or victimisation to which the case relates.

(6) If on an application made by the complainant the Director, the Labour Court or, as the case may be, the Circuit Court is satisfied that exceptional circumstances prevented the complainant’s case (other than a claim not to be receiving remuneration in accordance with an equal remuneration term) being referred within the time limit in subsection (5)—

(a) the Director, the Labour Court or the Circuit Court, as the case may be, may direct that, in relation to that case, sub- section (5) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction, and

(b) where such a direction is given, this Part shall have effect accordingly.

I am satisfied there is no ongoing discrimination and the alleged discrimination, if any, dates back to when the Complainant was initially dismissed from his employment in 2002. Accordingly, I am satisfied that this Complaint is manifestly outside of the appropriate time limit pursuant to Section 77 of the Employment Equality Act, 1998 and accordingly this Complaint is not well founded.

For the avoidance of doubt, I am further satisfied that the Complaint herein is res judicata as the aforesaid matter has been the subject matter of earlier proceedings which the Complainant discontinued in the context of the 2016 proceedings and were struck out by the High Court for want of prosecution, in the context of the 2003 proceedings, on the 14th April 2021.

Having found that this Complaint is not well founded, it is not necessary to comment on whether this Complaint is frivolous and vexatious as per Section 77A of the Employment Equality Act , 1998.

I find that the Complaint (CA-00048700-002) made pursuant to Section 77 of the Employment Equality Act, 1998 is not well founded.