ADJ-00036331

ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00036331

Parties:

Complaints:

Dates of Adjudication Hearing:  16/09/2022 & 06/01/2023

Workplace Relations Commission Adjudication Officer:  Aideen Collard

Procedure:

The first complaint CA-00047497-001 was referred under Section 77 of the Employment Equality Act 1998 to the Workplace Relations Commission (hereinafter ‘WRC’) on 5th December 2021.  The Complainant was self-represented whilst the named Respondent/s were represented by Mason Hayes & Curran.  Following delegation to me by the Director, I inquired into this complaint and gave the Parties an opportunity to be heard and to present any relevant evidence.  This matter was heard over two days at Lansdowne House.  Comprehensive written submissions and supporting documentation was received on behalf of both Parties.  At the outset of the hearing, the changes to procedure provided by the Workplace Relations (Miscellaneous Provisions) Act 2021 were outlined to the Parties.  The hearing was held in public and evidence was taken on oath.  The Parties were also made aware that their names would be published within this decision. 

By way of preliminary issue, it was confirmed that the Complainant had referred two distinct complaints of discrimination to the WRC as contained within the narrative of his complaint form, relating to (1) his non-selection for a postdoctoral fellowship position and (2) his access to a Specialist Research Institute building and referral to a Student Disciplinary Procedure.  The Complainant had selected the ‘discrimination’ and ‘harassment’ boxes and the grounds of ‘gender’, ‘civil status’ and ‘race’ on his complaint form.  Whilst the first complaint related to accessing employment and was properly referred under the Employment Equality Act 1998, the second complaint referred to accessing education and should properly have been referred under the Equal Status Act 2000.  In circumstances where Professor B had received an ES1 Form from the Complainant, there was consent to an investigation of the second complaint under the Equal Status Act 2000 and accordingly, a new complaint CA-00047497-002 has been added and investigated accordingly.

The Complainant referred to ‘Professor B’, the ‘Specialist Research Institute’ and ‘University College Dublin’ interchangeably whilst maintaining that Professor B is the correct Respondent.  On behalf of the named Respondent/s, it was contended that University College Dublin (also ‘UCD’) is the correct Respondent.

Subsequent to the conclusion of the hearing, the Complainant emailed copious unsolicited submissions and documentation to the WRC, primarily relating to additional further complaints referred against UCD and related bodies.  This included an email thanking this Adjudication Officer for affording him a fair hearing.

Background:

The Complainant alleges that he had been subject to discrimination and harassment by the Respondent/s on the grounds of race, gender and civil status in relation to (1) his non-selection for a postdoctoral fellowship position and (2) his access to a Specialist Research Institute building and referral to a Student Disciplinary Procedure.  The Respondent/s contend that these complaints are unfounded and untrue and the Complainant has not established a prima facie case of discrimination or harassment under either Act.

Summary of Complainant’s Case:

Evidence-in-Chief of the Complainant

By way of background, the Complainant confirmed that he is an American national and is a non-white male being of Asian origin.  He outlined an extensive educational history both abroad and in Ireland.  Having completed several Degrees and post-graduate qualifications in various academic disciplines in Germany and the US, he came to Ireland in 2007 to undertake a PHD at University College Limerick (also ‘UL’).  However, relations had broken down leading to his expulsion from UL for breach of the Code of Conduct in 2012.  He had referred a number of complaints to the former Equality Tribunal including an unsuccessful complaint against UL that his expulsion constituted discrimination on the grounds of race and gender (DEC-S2013-004).  He then lived in Latvia for a year before returning to Ireland to recommence his PHD.

In September 2014, the Complainant transferred his PHD to a Specialist Research Institute under the auspices of an Academic Faculty in UCD.  He was funding his studies from his own resources.  Whilst he was able to transfer over his research, the writing of his PHD thesis had been very complicated requiring his Supervisor, Professor A to assist with a full rewriting of same.  Consequently, the completion of the PHD took much longer than planned and he did not graduate until December 2021.  He had been assigned a desk space in the doctoral office of the Institute building for the purposes of undertaking his studies.  This is a restricted open study area requiring a swipe card for entry.  Owing to a complicated set of circumstances, he had become homeless and had been residing in hostels whilst undertaking his studies.  On occasion when he could not find a hostel, the weather was too bad or it was too late, he slept overnight at his desk in the Institute building.  He would also fall asleep at his desk owing to exhaustion following his daily use of the swimming pool and gym.  The cleaners would find him there the next morning but did not raise any issue other than one complaint to UCD Estate Services in 2018.  He said this was neither a comfortable nor an acceptable situation.  However, staff had been understanding about his accommodation difficulties and had turned a blind eye.  Whilst this was a regular occurrence, it had only been documented 7-8 times by UCD Estate Services.  He contended that other persons had been permitted to use and/or sleep on the premises.  He finally found accommodation during the Covid-19 Pandemic but owing to difficulties with his co-tenants, could not use the kitchen and consequently brought his cooking stuff into the Institute for use in its kitchen.  This situation persisted from the beginning of the Pandemic until UCD opened back up again in September 2021.  Meanwhile in June 2021, Professor B became the new Director/Head of the Institute.

The Complainant submitted his final draft PHD thesis in July 2021, followed by a bound copy in September 2021 and graduated in December 2021.  He had been required to relinquish his desk space and leave the Institute building upon the completion of his PHD in accordance with a signed agreement with UCD.  At his request this had been extended on a number of occasions until 31st August 2021.  He had also been shortlisted for an internal paid postdoctoral research fellowship position with the Institute in August 2021.  He was interviewed on 2nd September 2021 by a Panel chaired by Professor B.  He had delayed his departure to await the outcome, reasoning that if he got the position, then he could move his personal items to the new office and if he did not get the position, then he would move them out.  By email of 6th September 2021, he was notified that he had been unsuccessful.  He later became aware that he had ranked last.  On 8th September 2021, he returned to the Institute to collect his belongings when he bumped into Professor B for the first time in two years.  She was upset by his presence and threatened to call security.  He promised to remove his belongings which he did.  Professor B emailed the Complainant on 10th September 2021 stating: “Thank you for moving your computer and other personal effects from the (Specialist Research) Institute.  I do appreciate that it is challenging if you do not have broadband at home but it would not be appropriate for you to use the lobby areas of the Institute building to do your computing work, so please do not do so.  These spaces are not open to the general public and were also not designed as workspaces.  Congratulations on completing your doctoral studies at UCD Pierce.  I wish you every success in your future endeavours.”  Faced with the daunting prospect of learning afresh how to book a postgraduate study room in the Library and rent a locker after seven years as if he was a new student, the Complainant emailed Professor B requesting that he be permitted to work in the lobby area of the Institute.  She replied on 10th September 2021: “It is not appropriate to have you working in the common areas of the (Specialist Research) Institute building now that you have completed your doctoral studies at UCD and your PHD desk space in the Institute was withdrawn at the end of last month.  So I am now repeating my request in writing that you should not do so.”  The Complainant reasoned that because he had built up a friendship and rapport with the staff, he regarded this request as being reasonable.  He had also befriended the new students in the Institute whom he “took pity on”, bringing them in food and lending them his equipment. 

Notwithstanding the emails from Professor B and by his own admission, the Complainant continued to return to the Institute building on a daily basis to deliver supplies to the students, remaining there until the building closed.  He said he had not taken Professor B’s emails very seriously as he did not believe that his conduct was inappropriate.  On 29th September 2021, he was notified of his referral to a Student Disciplinary Procedure under Section 3.5 of the UCD Student Code of Conduct – ‘Damaging to, or misuse of, property - occupying or using University property without permission’ for accessing the building afterhours on various dates before 31st August 2021 and thereafter for continuing to occupy the building with various sightings cited.  Whilst he accepted that he had been present on the premises, he contended that a sighting on 3rd October 2021 had been concocted and fabricated by Professor B in order to secure a retrospective expulsion of him.  Although he initially took issue with jurisdiction because his PHD thesis was submitted at that juncture, he attended three remote meetings with the Dean of Students, Professor C, at stage 1 of the process.  He alleged that Professor C had informed him that UCD could not have a racist Head of School and if he ever brought it up at the requisite forum, he was likely to lose and receive the harshest penalty.  Although he had regarded the Student Disciplinary Procedure as being completely unnecessary, he had admitted guilt in exchange for a warning which he acknowledged was lenient.  He was required to write an apology to UCD Estate Services and undertake not to access the Institute building again.  He also emailed an apology to Professor B: “… for not having been very prompt in my departure from (the Institute)” and “misusing the access” stating: “I apologise unreservedly, and I hope that we can put the incident of my tardiness behind and I look forward to the re-opening of the campus and a new academic year.”

However, the Complainant then proceeded to send an ES1 Form to Professor B seeking an explanation for her conduct which he regarded as being racially motivated.  In summary, he alleged discrimination and harassment on the grounds of race, gender and civil status because he was a non-white male single person and (1) Professor B had taken “an extraordinary step of lodging a misconduct complaint” against him including incidents of him being caught afterhours in the Institute building going back over years and at a time when he was homeless; (2) her complaint had concocted and fabricated the incidents of his presence in the Institute by alleging that he was making noise and had slept in the Institute overnight on 3rd October 2021 (mirroring an email from Professor D who had reported the matter) when that was untrue and (3) her complaint was aimed at securing a retrospective expulsion order against him.  He contended that he had been treated less favourably than a white female would have been treated in the same circumstances.  He submitted that Professor B’s “…excessive reactions to such petty, trivial and innocent incident as my ‘being’ in (the Institute) to access the Internet should be characterised as opportunistic racism.  In her eyes, my actions were simply abnormal racialised ‘other’ person engaged in a very typical, bizarre, recalcitrant and incomprehensible behaviour.”  He alleged that she had abused her position of authority “to intimidate, harass and even concoct an event simply for the purpose of exacting her racial vindictiveness.”  He further submitted that “this stickler territoriality” only makes sense in the context of racism and “no other human factor would compel a person to behave like this over such a petty, trivial and innocent issue as returning to a familiar venue to access the internet at the beginning of a new semester”.  He referred to UCD’s slogan ‘Access and Inclusion is Everyone’s Business’, contending that he was regarded as an enemy in “occupation”.  He also objected to use of the word “inappropriate” in Professor B’s emails of 10th September 2021.  He alleged that motivated by racism, she had placed an “arbitrary barring order” against him such that he had been denied access to a quiet place to study in the Institute and had further subjected him to an arbitrary Student Disciplinary Procedure.  He submitted that this constituted discrimination pursuant to Section 7(1) and 7(2)(b) and (d) of the Equal Status Act 2000 providing as follows: “7(1) In this section “educational establishment” means a preschool service within the meaning of Part VII of the Child Care Act, 1991, a primary or post-primary school, an institution providing adult, continuing or further education, or a university or any other third-level or higher-level institution, whether or not supported by public funds.  (2) An educational establishment shall not discriminate in relation to- (a) the admission or the terms or conditions of admission of a person as a student to the establishment, (b) the access of a student to any course, facility or benefit provided by the establishment, (c) any other term or condition of participation in the establishment by a student, or (d) the expulsion of a student from the establishment or any other sanction against the student.”  Section 3 of the Equal Status Act 2000 sets out the various grounds of discrimination including gender, civil status and race and Section 11(c) further prohibits harassment on any of the grounds of discrimination against a student accessing a service within the meaning of Section 7.

In relation to his complaint under the Employment Equality Act 1998, the Complainant contended that as Professor B: “… was intolerant of my mere being in the (Institute) building, I cannot see how such an intolerant person would move to hire me for this post-doctoral fellowship post precisely due to my race and gender.  At (the Institute) currently, female employees comprise of the super majority.  There is no person of colour among its staff members and is 100 per cent white.”  Although Professor B’s complaint against him in relation to accessing the Institute building had post-dated this competition, he maintained that he had absolutely no chance of being hired owing to his race and gender given Professor B’s attitude towards him.  His view was reinforced by the fact that the successful applicant had been a white female.  In this respect, he submitted that he had been subject to discrimination contrary to Section 6(1) of the Employment Equality Act 1998 which provides for complaints of discrimination on nine grounds including race and gender as follows: “For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where- (a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ‘discriminatory grounds’) which- (i) exists, (ii) existed but no longer exists, (iii) may exist in the future, or (iv) is imputed to the person concerned,…”.  In relation to the ground of race, Section 6(2) provides: “As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are- (h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as ‘‘the ground of race’’),…” and in relation to the ground of gender: “(a) that one is a woman and the other is a man (in this Act referred to as “the gender ground”)”.  Section 8(1) of the Act further prohibits discrimination by employers and prospective employers in relation to specific areas including (a) access to employment.

Cross-examination of the Complainant

The Complainant was asked about his educational and work history between obtaining his Primary Degree in 1998 and his PHD in 2021 as outlined above.  He said that he had worked on and off but was fortunate enough to have won many grants and scholarships to fund his studies at the various universities he had attended on non-EU fee rates.  He confirmed his homelessness arose for reasons other than lack of finance.

The Complainant was shown a copy of the agreement he had signed with UCD in relation to his post-graduate desk space in the Institute building, portions of which were read out to him.  Under the heading ‘Doctoral Research Acceptable Use Policy’, it specifically stated: “It is not permitted for students to sleep overnight in the (Specialist Research) building.” and “Your desk has been allocated to you for a specific period (as determined by the Director… in agreement with your Head of School, supervisor or Director of Centre).  At the expiry of this period you are required to vacate your desk and surrender your key or swipe-card to the Institute Manager.”  Under the heading ‘…Institute kitchen facilities & Common Room Areas’ it stated: “Students are permitted to bring and use their own dedicated cup, plate, cutlery, etc. and clean after use.  However, students are required to bring these items in daily, store them at their desk and then bring them home at the end of the working day.  You must ensure that these items are never stored in common areas.”  The Complainant agreed that he had stored personal items in the Institute building all the time. 

The Complainant confirmed the timetable for completion of his PHD which had been delayed by Covid-19.  He agreed that the reason for his desk space in the Institute building was to complete his PHD.  He also agreed that at his request, he had received a number of extensions of his desk usage until 31st August 2021.  An email of 4th June 2021 from the Administrator to the Complainant confirming same further stated: “On this date, your access card will be cancelled and desk X will be reassigned.  By the 31st August, we ask that you kindly remove all belongings from your desk, place any rubbish in the bins and ensure that the desk is in an appropriate state for the next student.” The Complainant accepted that the final work on his PHD thesis had been completed by 6th August 2021.  He further accepted that accordingly, he had no need to remain working in the Institute building and there had been no doubt that he was required to vacate his desk by 31st August 2021.  He agreed that he had the facility of booking a post-graduate room in the Library and had access to WIFI on the campus but instead chose to return to the Specialist Research Institute building.  It was put to the Complainant that he had ignored Professor B’s emails and had continued to return there.  He declined to answer stating that he had no agenda to return deliberately and was just going back to his “familiar setting”.  He also maintained that he had a responsibility towards the students based there.  He agreed that whilst Professor B’s predecessor had let him get away with breaking the rules for years, she did not want him breaking the rules.  He agreed that he had only appreciated the gravity of the situation when he received the referral to the Student Disciplinary Procedure and realised that Professor B was “going to play by the book”.  It was put to him that this disciplinary process arose solely because he was breaking the rules and he was only bringing this complaint of discrimination and harassment against Professor B on the grounds of race, gender and civil status because he was no longer being permitted to get away with breaking the rules.  Thus, his allegations against Professor B were unfounded and untrue.  The Complainant maintained that had he been a white female person he would not have been treated in the same manner.

The Complainant was questioned about his allegations of fabrication and concoction in relation to two of the incidents giving rise to the disciplinary action against him described by Counsel as being “outrageous”.  He said he was not going to wait to find out whether there was any substance to his allegations of discrimination (by obtaining the email of 4th October 2021 from Professor D via FOI) before sending the ES1 Form as he had been discriminated against so many times in the past.  He was going to see how the evidence emerged and if there was no substance to his allegations, then he would be unsuccessful.  It was put to the Complainant that Professor B and Professor D completely refute his allegations as outlined.  It was put to him that he had not pursued the process available for a full hearing of the disciplinary matter and instead had admitted his guilt, received a warning and had written a letter of apology to Professor B.  He agreed that he did not mean a word of his letter of apology and had written it for appeasement as he could not have taken the risk of pursuing a full hearing and expulsion before graduation from his PHD. 

The Complainant was questioned in relation to his complaint of discrimination arising from his non-selection for the postdoctoral fellowship position.  He accepted that he had been shortlisted for interview notwithstanding that he had not yet graduated from his PHD, being a mandatory criterion.  It was put to him that this was in fact an example of Professor B and the selection Panel affording him favourable treatment.  In response, the Complainant speculated that it must have been other persons who had shortlisted him because they believed he was a white Irishman.  He contended that Professor D (also on the Panel) had informed him that Professor B had the ultimate decision.  When it was put to him that his unsuccessful application for the position had preceded the disciplinary process, he contended that this was Professor B’s retaliation for being forced to shortlist him.  It was put to him that in fact the panellists make the short-listing decision based upon a points matrix and HR communicates the results to the candidates.  The Complainant confirmed that he had regarded the selection criteria as being fair, had been happy with the interview and had written to the Panel after his interview to thank them.  Hence, he had taken issue with the result and maintained that Professor B had a key role in ensuring that he had not been appointed.

It was put to the Complainant that Professor B had known that he was not homeless because he had emailed her on 8th September 2021 stating that he did not have WIFI in his rental house.  The email of 4th October 2021 from Professor D to Professor B reporting his sighting of him in the Institute building on 3rd October 2021 was read to him as accurately reflecting his intended evidence as follows: “I was in my office (in the Institute) last night.  I noted a former student, Pierce Parker, was in the building – using the kitchen… on floor 1, the nearby toilet and walking the corridors.  I think he settled down to sleep in (A Area) - at least I could hear noises from around there before I left.  We have locked the kitchen now, but I am aware you are attempting to remove this former student from the building – he had disappeared for 2 weeks.  Unfortunately, he seems to have returned.”  Whilst the Complainant accepted that he could have been present in the Institute building at that time, he took issue with the assertion that he had slept there.

The Complainant confirmed his position that everything that has happened to him is due to racism.  This included being declined admission to a PHD in the US, homelessness in Ireland and being expelled from UL, on foot of which he had pursued an unsuccessful complaint to the former Equality Tribunal.  He confirmed that he had also brought a number of other complaints, one of which was upheld on appeal. 

The Complainant made a closing statement using strong language to reiterate his points made above.

Summary of Respondent/s Case:

A detailed written submission setting out the factual position from the Respondent/s perspective was supplemented with direct oral evidence on oath from Professors B, C and D in the following order:

Evidence-in-Chief of Professor D

Professor D confirmed his various academic roles within the Specialist Research Institute and associated Faculty.  As an internal examiner, he had assisted the Complainant with final corrections on his PHD and signed off on 6th July 2021.  He confirmed the contents of his email of 4th October 2021 to UCD Estate Services copying in Professor B as cited above.  He recalled that unusually he was working in his office in the Institute on Sunday evening of 3rd October 2021.  He noticed that he was not alone and saw the Complainant in a nearby area around the kitchen and toilet.  He was not certain as to whether he had been sleeping there as he did not investigate but his office is overhead, and he heard noises in the area below.  He had not taken any action at the time but sent the email to UCD Estate Services the following day to report the sighting.  That morning, he had also engaged with a keyholder to lock the kitchen.  He confirmed that the email was written of his own accord and was an accurate reflection of what he had witnessed.

Professor D also confirmed that he was one of four panellists on the selection Panel for the postdoctoral fellowship position subject to this complaint.  He outlined his recollection of the shortlisting and selection process.  He confirmed that the shortlisting was undertaken by the Panel and communicated by HR.  He recalled that the interview was conducted remotely owing to the prevailing circumstances and there were two very strong candidates.  He rejected the Complainant’s contention that he had informed him that Professor B had the ultimate decision in relation to the appointment and said this had been misconstrued.  He confirmed that race, gender or civil status had absolutely nothing to do with the appointment.  He had no concerns in relation to Professor B’s role and notes that UCD has very strong anti-discrimination polices. 

Cross-examination of Professor D

The Complainant apologised for inconveniencing Professor D by requiring him to attend the hearing and gave evidence.  He acknowledged that Professor D had always been very nice and helpful to him.  Professor D refuted a suggestion by the Complainant that if he testified against Professor B, there might be negative circumstances.  He was questioned about witnessing the Complainant in the Institute building on 3rd October 2021.  He confirmed that having been locked for a period, the kitchen had been cleaned and opened for students and following his sighting of the Complainant in that area, had been locked again.  The Complainant questioned his assertion that he had heard noises and assumed he was sleeping there.  Professor D repeated what he had witnessed as per his email and presumption that he was sleeping there.  Professor D refuted the Complainant’s position that he still had work to complete on his PHD thesis at that juncture before binding and submission.  He had written to the Complainant congratulating him on his PHD. 

Evidence-in-Chief of Professor C

Professor C outlined his role in conducting the Student Disciplinary Procedure arising from Professor B’s complaint against the Complainant for misuse of the Specialist Research Institute building.  He outlined his extensive experience in dealing with such matters and the various stages of the process.  He confirmed that he had no prior involvement with the Complainant either before or after the disciplinary process.  He outlined his recollection of the three meetings he had conducted the Complainant to discuss and address the complaint.  He confirmed that the complaint was dealt with at stage 1 with his consent and resulted in an apology and a warning.  As there had been several reports of the Complainant’s inappropriate use of the Institute building and substantial supporting evidence, whether or not he had slept in the building on 3rd October 2021 would not have changed the outcome.  He confirmed that as Professor B had no role in the disciplinary process, she had no influence on the outcome.  He wholly refuted the Complainant’s assertion that he had told him that he no chance of successfully making a complaint of racism against Professor B.

Cross-examination of Professor C

The Complainant put it to Professor C that at the disciplinary meetings, he had indicated that he viewed the complaints referred against him by Professor B through the prism of racism as being fabricated.  He had contended that this should have been investigated by UCD.  Professor C recalled the Complainant’s reference to fabrication of the incidents giving rise to the complaint but was of the view that that there had been nothing unusual about the process adopted.  He pointed out that the Complainant himself had acknowledged that he had misused the space and undertook not to do it again.  He felt that there had been positive engagement and it had been a good outcome for him.  Whilst the Complainant acknowledged this, he maintained that his complaint of racism against Professor B should have been further investigated.  Professor C confirmed that UCD had a comprehensive Respect Policy for addressing complaints of racism. 

Evidence-in-Chief of Professor B

Professor B supplemented her very detailed ES2 response to the Complainant’s allegations with oral evidence.  She confirmed her role as Director of the Specialist Research Institute since June 2021, being one of several on the campus.  The Institute building is used to support research, run conferences and seminars and provides office space to staff and an open study area for PHD students.  It does not provide living accommodation for students and nor would its insurance or fire safety system support overnight occupation of the building which is specifically prohibited under the Institute’s Policy.  Nor would such occupation be appropriate use of the facility or fair to the other students using the building.  The kitchen, common-room and WIFI are solely for the use of students allocated a desk space.  There are WIFI facilities extensively available throughout the campus.  There is no public access and access is gained by swipe card.  Applications for desk space may be made on an annual basis by PHD students supervised by fellows of the Institute.  Students availing of a desk space are also required to sign a Code of Conduct and adhere to same.  The Institute is under no obligation to provide any facilities to students who are not eligible for same. 

Professor B recalled that her first interaction with the Complainant had related to his occupation of another academic building in October 2018.  She had been Head of that School at the time and had received a complaint from a group of female colleagues that he was sleeping in the building.  Professor A who was overseeing his PHD had also informed her of a complaint from the cleaning company that he had been seen in the tearoom sleeping in his underwear at 6.30am.  She had believed that this was being dealt with through the Student Disciplinary Procedure.  She had also contacted the Complainant from a welfare perspective and whilst she was not condoning this unacceptable behaviour, she had organised emergency accommodation for him and referred him to a student advisor for assistance.  However, he reassured her that he did not need accommodation and declined assistance.  She did not have any further dealings with him until after she took over as Director of the Specialist Research Institute.  Upon taking over, she had been quite shocked to discover that the Complainant’s behaviour had continued unabated until that stage.

The Complainant had completed his PHD in July 2021 and access to the building had been extended until 31st August 2021 at his request.  On this date, his desk allocation for the 2020/21 academic year ended and in common with all other students who did not apply for renewal, he had relinquished his desk space and it was reassigned to another student for the next academic year.  The specific permissions on his student card used as a swipe card to access the building were also cancelled on 31st August 2021.  He was informed of this in writing and asked to remove all his belongings from the building.  The Complainant had not applied for a renewal of his desk space and nor would he have been entitled to same, having completed his PHD studies and submitted his thesis in July 2021.  Thereafter, he was not entitled to use the Institute building which did not have public access.  However, he would have been entitled to allocation of a postgraduate desk and WIFI in the main campus until his graduation.  Professor B confirmed that following this she had chaired a competition for a postdoctoral fellowship position where the Complainant had been shortlisted.  Following interview, he had been informed that he was unsuccessful by email of 6th September 2021. 

Following vacation of his desk, Professor B became aware that Complainant had set up a desktop computer in a foyer on the 3rd floor between the Institute and an adjoining School.  She had received complaints regarding his use of this common area given Covid-19 public health concerns for staff who had underlying conditions.  She was also aware of his use of cooking equipment which had been installed in the kitchen and occupation of the building after-hours whilst the building was locked which posed a fire risk.  His presence also made other users feel uncomfortable and intimidated restricting her colleagues’ use of the building in the evenings.  She confirmed her exchange of emails with the Complainant on 10th September 2021 and requests for him to remove his personal items and to desist from using the Institute building. 

Having taken advice on the Complainant’s continued accessing and use of the Institute building, on 27th September 2021, Professor B submitted a student misconduct incident report for ‘Occupying or using University property without permission’ to the Dean of Students for breach of Section 3.5 of UCD’s Student Code of Conduct in relation to ‘Damage to, or misuse of, property’.  This complaint related to the period between 1st September 2021 and 13th September 2021.  On 6th October 2021, she referred a further student misconduct incident report on foot of Professor D’s sighting of the Complainant in the building on Sunday evening of 3rd October 2021.  On 13th October 2021, she submitted a third student misconduct incident report relating to his occupation and use of the building on Saturday 9th October 2021.  She also referred to his use of the building after-hours on at least six occasions before the completion of his PHD.  She had assembled a substantial amount of evidence to support this complaint from what she had witnessed, evidence from her colleagues and from the UCD Estates Services’ log of incidents.  Thereafter, she had no further involvement in the process which was concluded at stage 1 until she received the outcome and two emails of apology from the Complainant.  She maintained that he had been treated the same way as all other students who had been granted a desk space at the Specialist Research Institute.  He had been granted a desk space for a limited period subject to the terms and conditions of use as contained in a written agreement.  However, he had repeatedly breached these rules notwithstanding her written instructions to desist requiring her to lodge the misconduct incident reports.  She refuted his contention that this was an “extraordinary step” as it is standard practice in cases where students may have breached UCD’s Code of Conduct.  She maintained that this was an entirely appropriate and proportionate response to ensure the proper use and security of the Institute building and ensure that staff and students who use the building have a safe and appropriate working environment.  She refuted the Complainant’s contention that this was “stickler territoriality” and nor did she regard the incidents as “trivial incidents” but rather as constituting serious incidents of ‘occupying or using University property without permission.’  Allowing the Complainant’s continued access to the building after the completion of his studies would unfairly deprive existing students of the space and would not be in keeping with norms of space allocation.  She completely refuted his allegations that the referral of this complaint was motivated by racial vindictiveness, his gender or civil status and/or that it was fabricated or concocted and contended that this was unfair and vexatious.  She was aware that he had accommodation as his rental address had been used on all his correspondence.

Professor B also outlined her role in relation to the competition for the postdoctoral fellowship position.  She was the Chair of a Panel comprising of three colleagues including Professor D.  She confirmed that HR are responsible for undertaking all communications for job competitions and the Panel are responsible for the shortlisting and selection decisions.  She refuted the Complainant’s contention that she had been forced to shortlist him and her complaint against him under the Student Disciplinary Procedure had been in retaliation for same.  There had been 18 applicants, some of whom had not been shortlisted as they had not confirmed a completion date for their PHD, being an essential criterion.  Although he had not yet graduated, the Complainant was shortlisted for interview, contrary to his assertions of unfavourable treatment.  The interviews were conducted remotely and at his request, he had been provided with a room with WIFI for the purposes of undertaking his interview.  Professor B contended that the interview and selection process had also been fair and transparent.  A matrix was used to rank the candidates according to predetermined criteria including previous relevant experience.  As Chair, she did not partake in the scoring process and would only have intervened in the event of disagreement.  The Panel had concluded that two of the candidates were appointable to the post.  The successful candidate was a white female and the reserve was a white male.  She did not accept that race, gender and civil status had anything to do with the selection.  As she had received an email from the Complainant thanking her for the interview “whatever the outcome”, she did not get the impression that he felt the process was in any way tainted or unfair. 

Cross-examination of Professor B

Professor B confirmed that her actions in relation to either the Complainant’s unsuccessful competition for a postdoctoral fellowship position and complaint to the Student Disciplinary Procedure had nothing to do with the fact that he is of Asian ethnicity.  The Complainant questioned her in relation to her use of language and why she regarded his conduct as being “inappropriate”.  Professor B confirmed that his inappropriate conduct arose in the context of the complaints she had received about him including his partial nudity in front of the cleaners, being in the building afterhours, misuse of kitchen facilities including bringing in foodstuffs and using a wok, storing of personal items including clothing and cooking equipment and sleeping in the building which had nothing to do with race.  The word “inappropriate” is a common term which she had used it to describe his occupation of common areas in the Institute building during Covid-19 at a time when he had completed his PHD, they were not working areas and he had been asked him to desist from using them.  The Complainant took issue with the use of the terms “occupation” and “wok” and the suggestion that he could spread Covid-19 as being racist.  He clarified that he had in fact been using a laptop and not a desktop.  He put other emails obtained via FOI to Professor B to suggest bias against him which she could not recall.  He also put other matters to her including a further incident of his attendance at the Institute building on 9th October 2021 not subject to her complaint, her interactions with Professor D regarding her complaint and alleged use of the Institute building by another colleague’s son. 

The Complainant also raised issues with the selection process for the postdoctoral fellowship position.  He took issue with the composition of the Panel (three females and one male) contending that they were all white.  He put it to Professor B that it was “a lie” that the Panel had shortlisted him and insisted that it had been the HR person named on the email communicating same.  Professor B confirmed again that HR were responsible for communications and had no role in his shortlisting and he was shortlisted by the Panel.  He took issue with the scoring based upon his own statistical analysis.  Professor B contended that as two of the candidates were so far ahead of the other candidates, statistical analysis would not have any bearing.  The Complainant contended that given his high IQ scores in self-testing, he should have been scored much higher.  Professor B confirmed that the successful candidate had a Degree, two Masters Degrees, a PHD and extensive relevant experience.  She also had an excellent performance at interview compared to the Complainant who was “rambling”.  As his CV had no dates for his qualifications or experience, the Panel was required to ask further questions to elicit basic facts resulting in a run-over.  She also confirmed that at the time of the selection process, she had been unaware of his ethnicity.  Furthermore, she had been informed that he had vacated his desk and was unaware of his reoccupation at the time of interview.

Submissions

On behalf of the Respondent/s, it was confirmed that whilst it was open to the WRC to summarily dismiss these complaints, a full defence had to be made to protect the interests and reputations of those named within these complaints and particularly Professor B.  Detailed written factual and legal submissions were submitted and supplemented with oral submissions from Counsel which are summarised as follows:

• (i) The complaint of harassment against the Respondent/s is wholly unfounded and untrue.

• (ii) The complaint in relation to access to the use of a Specialist Research Institute building arises from the Complainant’s own repeated misconduct which he admitted during a disciplinary process. He has referred these complaints in response to being confronted in relation to his own misconduct.

• (iii) The Complainant has not adduced facts such that a prima facie case of discrimination could be inferred in relation to his non-selection for a postdoctoral fellowship position requiring rebuttal. Conversely, the competition was fairly run and afforded the Complainant favourable treatment.

• (iv) The Complainant confirmed in his own evidence that when he had made an allegation of fabrication, he had not known whether it was true. He had no regard for his agreement in relation to use of his desk space, his email of thanks following the interview or his letter of apology.  He made diametrically opposing submissions regarding the Respondent/s’ treatment of him throughout the process.  The language used towards Professor B and the manner in which he has prosecuted these complaints has been egregious with no regard for her professional reputation.

In submitting that the Complainant had not made out a prima facie case of discrimination requiring rebuttal in relation to any of the complaints under both the Employment Equality Acts and Equal Status Acts, reliance was placed upon Southern Health Board -v- Mitchell, DEE011, [2001] ELR 201, Melbury Developments -v- Valpeters, EEA0917 and Margetts -v -Graham Anthony & Company Limited, EDA038.

Preliminary Issue – Whether Complaints are Frivolous and Vexatious

Findings and Conclusions in relation to both Complaints: 

In circumstances where it has been submitted on behalf of the Respondent/s that these complaints are unfounded and untrue / motivated by bad faith, I consider it appropriate to deal with this as a preliminary issue.  As the factual matrix in respect of both complaints is inextricably linked, it is necessary to address both together.  The jurisdiction of the WRC to dismiss frivolous and vexatious complaints is provided for:

(1)  In relation to complaints under the Employment Equality Acts 1998-2015, by Section 77A(1) providing: “The Director of the Workplace Relations Commissionmay 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)  In relation to complaints under the Equal Status Acts 2000-2018, by Section 22(1) providing: “The Director of the Workplace Relations Commissionmay 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.”

The jurisdiction of the WRC to dismiss a complaint for being frivolous and vexatious is exercised sparingly.  Whilst there is no statutory definition of the terms “frivolous” and “vexatious”, the High Court Judgement in Kelly -v- The Information Commissioner (2014) IEHC 479 provides helpful guidance: “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.”

The Complainant alleges that he was subject to discrimination and harassment by the Respondent, and in particular by Professor B on the grounds of race, gender and civil status in relation to (1) his non-selection for a postdoctoral fellowship position and (2) his access to a Specialist Research Institute building and referral to a Student Disciplinary Procedure.  Firstly, it is noted that the Complainant was notified of his non-selection for the postdoctoral fellowship position on 6th September 2021 before discontinuance of his access to a Specialist Research Institute building was confirmed by Professor B on 10th September 2021.  He was referred to the Student Disciplinary Procedure for his continued use of the building in October 2021.  He contends that arising from Professor B’s subsequent referral of him to the Student Disciplinary Procedure, he did not stand a chance of selection in the earlier competition and her referral of complaints against him to the Student Disciplinary Procedure constituted retaliation for being forced to short-list him.

In relation to his complaint of discrimination under the Equal Status Acts, the Complainant has not established any legal or other entitlement to access the Specialist Research Institute building in question.  He had signed an agreement with UCD agreeing to vacate his desk upon completion of his PHD but his stay was extended at his request until 31st August 2021.  It is common-case that he had completed all of the work on his PHD at that stage.  It was also open to him to apply for a postgraduate study room in the Library until his graduation on 4th December 2021.  Thereafter, and arising from his continued accessing of the building, Professor B had written to him stating that this was inappropriate and asking him to desist.  By his own admission, he had ignored her requests and continued to access the building throughout September into October 2021, had admitted to same at the Student Disciplinary Procedure meetings and had also written an apology to Professor B.  I am therefore of the view that this complaint has no prospect of success.  I am further satisfied that the Complainant’s referral to the Student Disciplinary Procedure arose directly because of his own misconduct and blatant disregard for his agreement with UCD.

Turning to the Complainant’s complaint of discrimination under the Employment Equality Acts in relation to his non-selection for the postdoctoral fellowship position, I note that at the time, he had been satisfied with the conduct of the shortlisting and interview process as expressly acknowledged in writing afterwards.  For this reason, I am of the view that he has included this complaint in bad faith aggrieved by the discontinuance of his access to the Institute building and his referral to the Student Disciplinary Procedure.  I have also examined the process adopted and am satisfied that it was fair and transparent.  In particular, a matrix was used to score the candidates against criteria and as Chair, Professor B had no role in scoring.  The Complainant was also favourably treated in relation to his selection and provision of a room for his remote interview.  For these reasons, I am of the view that this complaint also has no prospect of success.

I further note the background to these complaints and the Complainant’s history of referring discrimination complaints against third-level education establishments and related persons primarily on the ground of race.  The Complainant has demonstrated a sense of entitlement to special treatment and does not regard the usual rules and norms of social interaction and conduct as applying to him.  When challenged about his behaviour he has an established pattern of retaliating by alleging discrimination against anyone whom he regards as standing in his way, Professor B in the instant case.  By his own admission, he was unconcerned with whether there was any substance to these complaints before referral to the WRC.  In the instant case, and again by his own admission, the staff at UCD went above and beyond to accommodate his doctoral studies following his expulsion from UL and Professor A assisted him with a complete rewriting of his PHD thesis.  When he was found sleeping on campus in 2018, Professor B arranged alternative accommodation and student assistance which he declined.  I find that he took advantage of this goodwill and effectively moved in to reside in the Institute building designed solely for academic purposes.  Thereafter, a blind eye was turned to his practice of sleeping and cooking there which posed significant health and safety issues and concerns particularly during the Covid-19 Pandemic.  This state of affairs continued until Professor B took over as Director of the Institute in June 2021 coinciding with the end of his studies and entitlement to access the building.  When Professor B was forced to refer his continued accessing of and use of the building to the Student Disciplinary Procedure as her emails requesting the Complainant to desist from same were ignored, she was met with an ES1 Form and these complaints.  I also regard some of the language used towards Professor B to be vile and inappropriate in the extreme.  In contrast to the Complainant’s conduct, Professor B conducted herself in a dignified manner throughout this process.

Unfounded complaints such as these cause untold hardship to the named individuals forced to defend themselves and their reputations, not only in terms of the time and costs required to meet the complaints but also by the stress and anxiety caused.  The administration of such complaints also usurps valuable public resources and does a disservice to those with genuine complaints.  In all the circumstances and exceptionally, I consider it necessary to exercise my jurisdiction under both Acts, to find these complaints “frivolous and vexatious”.  It is therefore unnecessary to further consider these complaints substantively.

Decision on complaint under the Employment Equality Acts - CA-00047497-001:

Section 79 of the Employment Equality Acts 1998-2015 requires that I make a decision in relation to this complaint.  For the aforesaid reasons, I am of the opinion that this complaint is frivolous and vexatious and accordingly, dismiss same pursuant to Section 77(A)(1) of the Employment Equality Acts 1998-2015.

Decision on complaint under the Equal Status Acts - CA-00047497-002:

Section 25 of the Equal Status Acts 2000-2018 requires that I make a decision in relation to this complaint.  For the aforesaid reasons, I am also of the opinion that this complaint is frivolous and vexatious and accordingly, dismiss same pursuant to Section 22(1) of the Equal Status Acts 2000-2018.

Dated:   4th January 2024

Workplace Relations Commission Adjudication Officer:  Aideen Collard

Key Words:  Dismissal of frivolous and vexatious complaints – unfounded - made in bad faith - Section 77(A)(1) of the Employment Equality Acts 1998-2015 & Section 22(1) of the Equal Status Acts 2000-2018