Complainant

Respondent

Parties

William  Shorten

Ms. Catherine Martin T.D.

Complainant

Respondent

Anonymised Parties

Representatives

  Self-represented.

Sinéad Fitzpatrick, Solicitor, Office of Parliamentary Legal Advisors.

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00049205-001

11/03/2022

The Complainant is a member of the public. The Respondent is a member of the Government.

This complaint was received by the Workplace Relations Commission on 11th March 2022.

The Complainant states that the Government sold him his apartment through the Affordable Housing Scheme. Dun Laoghaire Rathdown County Council acted as agent for the Government.

The terms and conditions contained within the contract with Dun Laoghaire Rathdown County Council did not state that the Complainant would be purchasing the property directly from the developer.

The Complainant states that it was impossible for him to obtain a structural survey when there were 100 apartments in the building.

When the Complainant made a Freedom of Information application to Dun Laoghaire Rathdown County Council requesting a copy of his contract, he was informed that they had no contract with him.

The Complainant states that there is approximately €5 million of structural defects and an additional €1million in defects caused by water ingress and fire safety repairs.

The management fees being paid by the Complainant are much higher than he anticipated. These fees are increasing due to increasing energy costs and insurance increases.

The Complainant has received a solicitor’s letter from the management companies’ solicitor informing him that he must pay what is owed by him.

The Complainant claims the apartment he bought in good faith through this government scheme is a money pit.

The Complainant contends that he bought the apartment on the terms outlined in the contract with Dun Laoghaire Rathdown County Council who were the agents of the Government.

The Complainant contends that the Government agency who sold him the apartment have no record of any contract with the Complainant and therefore he is holding the Government responsible. The Green Social Party were in power at the time of the sale and the named Respondent is his local politician and she has stated that if I need some help just call her. The Complainant contacted her and received a response from a Parliamentary Secretary informing him that that his complaint was misconceived and should be dismissed.

The Complainant contends that he is not liable for all the defects and that he is a victim and that he is entitled to his rights.

Preliminary Legal Argument

Introduction

The Respondent submits that the complaint is clearly misconceived and should be dismissed in accordance with section 22 of the Equal Status Act 2000, as amended (the ‘Act’) on the following grounds:

a. The substance of the complaint relates to a property purchased by the Complainant in 2008 and alleged defects in respect of said property. Not only do we submit that this is a matter that falls outside the statutory jurisdiction of the Act but further that the Respondent is a stranger to said facts and allegations and accordingly the complaint is misdirected.

b. Without prejudice to the foregoing, as far as the claim or, any part of the claim, can be said to relate to the Respondent such matters fall wholly outside the jurisdiction of the Act.

c. Without prejudice to the foregoing, the Complainant’s understanding of “victimisation” is incorrect. A complaint of ‘victimisation’ as defined by the Act has not been made out and indeed any such claim is entirely refuted.

Discretion to screen claims that are plainly misconceived.

 Section 22 of the Act, as amended states: 3

 “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.”

 In recent WRC determinations, the Adjudication Officer held that section 22 permits the early screening of complaints where those complaints are plainly misconceived. The Adjudication Officer stated: “Section 22 of the Acts allows for the filtering of complaints prior to a hearing or at any stage of proceedings. In Nowak v The Data Protection Commissioner [2016] IESC 18 at page 6, the court stated that “[a]ny public decision maker must have the capacity to screen claims and exclude at an early stage those which are plainly misconceived”.

The rationale for such an approach is set out in more detail by the Chief Justice, in the Supreme Court judgment Nowak v. the Data Protection Commissioner; “Any public decision maker must have the capacity to screen claims and exclude at an early stage those which are plainly misconceived. If this form of decision-making triage cannot be carried out, and all complaints must proceed through to a formal determination, then the system becomes overloaded, and will grind to a halt.”

With regard to the meaning and scope of the word “misconceived” this was considered by the High Court in Keane v The Minister of Justice (1994) 3 IR 347.In this case it was found that a claim is misconceived if it is incorrectly based in law i.e., the claim is based on a fundamental misunderstanding of the legislation inter alia. 

Recent WRC decisions suggest a precedent that allows for Adjudication Officers to dismiss complaints that are clearly misconceived at an early stage. See for example: ADJ 31958, ADJ 31959, ADJ 31962, ADJ 32142, ADJ 31960, ADJ31969, ADJ 32143, ADJ 32143, ADJ 31963, ADJ 31967, ADJ 31968, ADJ 31964, ADJ 31970, ADJ 32046, ADJ 31970, ADJ-00035469, ADJ-00035228, ADJ-00035230, ADJ-00035213, ADJ-00035216, ADJ-00035219, ADJ-00035220, ADJ-00037131, ADJ-00035227, ADJ-00035468, ADJ-00035223, and ADJ-00035225. 

In relation to the above 27 WRC determinations, it is relevant to note that:

a. All were Equal Status complaints directed against members of Dáil Éireann and/or Seanad Éireann; b. All related to issues arising from the performance of a member’s parliamentary functions.

c. All were dismissed because it was the view of the Adjudication Officer that all complaints fell outside the remit of the Equal Status Acts; and

d. All were determined without recourse to a hearing.

The Respondent presented a very strong case that the complaint cannot be heard under the Equal Status Act that it was in fact misconceived.

This argument as presented by the Respondent is very strong and whilst the Complainant may well have a genuine complaint questions arise regarding hearing his complaint under the Equal Status Act, 2000. 

Equality law is based on comparison; how one person is treated by comparison to another who does not possess the relevant characteristic. It is therefore necessary to ground a claim of discrimination by pointing to how another person, not having the protected characteristic relied upon, was, is or would be treated in a comparable situation. This is referred to as a comparator.

A comparator is an evidential too. They are intended to contrast the treatment of the complainant, in respect to the matter complained of, with that of another person in similar circumstances who does not have the protected characteristic relied upon. In many cases the comparator will be an actual person, but they need not be. It is permissible to select a hypothetical comparator. A hypothetical comparator can be constructed by asking why the complainant was treated as they were. If the treatment complained of was a protected characteristic, a hypothetical comparator is a supposed person who does not have that characteristic but who is otherwise in the same position as the Complainant.

It is for the Complainant to select their comparator. The Adjudication Officer will then consider if the selected comparator advances the claim being made.

In the instant case no comparator has been identified.

The Complainant contends that he has been discriminated against due to his Civil Status.

Civil Status includes being single, married, separated, divorced, widowed, in a civil partnership or being a former civil partner in a civil partnership.

I have no alternative but to accept the legal arguments presented by the Respondent. There is no jurisdiction to hear this complaint under the Equal Status Act and I have no alternative but to find that the complaint as presented under the Equal Status Act, 2000 is not well founded and therefore does not succeed.

I have no alternative but to accept the legal arguments presented by the Respondent. There is no jurisdiction to hear this complaint under the Equal Status Act and I have no alternative but to find that the complaint as presented under the Equal Status Act, 2000 is not well founded and therefore does not succeed.

Equal Status Act, 2000.