ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00037275

Parties:

Complaint(s):

Date of Adjudication Hearing:  decided on the papers

Workplace Relations Commission Adjudication Officer:  Brian Dalton

Procedure:

In accordance with section 25 of the Equal Status Act, 2000,and following the referral of the complaint(s) to me by the Director General, I inquired into the complaint(s). This decision has been decided on the papers.

Background:

Preliminary Matter

The Complainant brings the following complaints against Daft:

CA-00016800-001: That the Respondent failed to respond to his request dated 27/09/2017 in relation to Montepellier Parade, Blackrock, Co Dublin.

CA-00016801-001: That the Respondent failed to respond to his request dated 27th/09/2017 in relation to 11 Old Cabra Road.

CA-00016802-001: I am offended that daft media failed to respond to my request dated 27/09/2017 in relation to case reference CA-0007381.

CA-00016803-001: I am offended that daft media failed to respond to my request dated 27/09/2017 in relation to case reference CA-0007384.

CA-00016804-001: I am offended that daft media failed to respond to my request dated 27/09/2017 in relation to case reference CA-0007370.

CA-00016805-001: I am offended that daft media failed to respond to my request dated 27/09/2017.

The Complainant was requested to particularise his complaints being brought against DAFT on the 8th of May 2024:

Dear Mr Alamazani,

The above complaints appear to be linked to matters already determined in Adj-00012093

However, they have not been determined as the complaints are not particularised so that they could be reviewed.

Please provide further details by the 30th of May 2024 to support these complaints that would allow the Respondent to understand what the allegations are about and why you believe their actions based on facts meet the prima facie test as required by Act.

On the 14th of May 2024, the complaint forms were emailed to the Complainant.

No reply has been received.

Insufficient Particulars:

I note in Delaney and McGrath (4th Ed 2018 Round Hall)

5-82

An example of a case where sufficient particulars of negligence were not provided is Mitchell v Arthurs.188 The plaintiff workman sued for damages arising out of the fall of bricks from scaffolding and pleaded that the defendant “so carelessly, negligently, and unskilfully erected the scaffolding, that a large number of bricks fell on the plaintiff”. The statement of claim was struck out as embarrassing on the basis that it merely made a general plea of negligence and failed to specify the particular defects in the scaffolding of which complaint was made.

The practice of the Equality Tribunal was to reference Labour Court cases with reference to Equal Status claims. This is done by analogy and not as formal legal precedents.

I note the decision of the Labour Court in Patrick Kelly t/a Western Insulation v Algirdas Girdsius, where the Court held:

“there is no evidence of any kind to establish any causal connection between the alleged omissions relied upon and any act on the part of the Claimant of a type referred to at subsection 3.”

The Court found the claim to be misconceived.

The Complainant has failed to make out any causal connection between the alleged acts of discrimination and the conduct of the Respondent.

Prima Facie Test:

In Mitchell v Southern Health Board, DEEO11 the Labour Court held that a ‘claimant must prove, on the balance of probabilities, the primary facts on which to rely in seeking to raise a presumption of unlawful discrimination.’  And in McCarthy v Cork City Council EDA0821 ‘that at the initial stage the complainant is merely seeking to establish a prima facie case. Hence it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.’

I note that in Murdoch and Hunt 2021 Edition Bloomsbury Prima Facie is defined as:

[Of first appearance]. On the face of it; a first impression. A prima facie case is one in which there is sufficient evidence in support of a party’s charge or allegation to call for an answer from his opponent. If a prima facie case has not been made out, the opponent may, without calling any evidence himself, submit that there is no case to answer, whereupon the case may be dismissed.

The principle in discrimination litigation is that once a claimant establishes a prima facie case of discrimination the onus shifts to the respondent, who must prove that no discrimination has occurred.

And the Court of Appeal England and Wales in Igen v Wong EWCA/Civ/2005 stated that the claimant has to ‘prove on the balance of probabilities facts from which the tribunal could conclude,[this does not mean must prove on the balance of probabilities] in the absence of an adequate explanation, that the employer has committed an act of discrimination against the claimant.’

It is also the case that the Labour Court in Melbury Developments Ltd v Valpeters EDA 1728 has held that membership of a protected group and evidence of adverse treatment is not sufficient to shift the burden of proof in a direct discrimination case, there must be a causal link between the ground and treatment.

The Complainant was provided with an opportunity to particularise their complaints and has failed to do. The Complainant has brought many similar complaints and is not unfamiliar with the requirements of the Equal Status Act.

Misconcieved:

These are legal technical terms and as explained by Delaney and McGrath on Civil Procedure 4th Edition 2018 mean:

The meaning of the words “frivolous or vexatious” as used in the context of s.10(1)(b)(ii) of the Data Protection Act 1988 as amended was considered by Birmingham J in Nowak v Data Protection Commissioner,28 where he stated 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.” This description was referred to by Irvine J in her judgment in the Court of Appeal in Fox v McDonald,29 where she stated that “the word ‘frivolous’ when used in the context of O. 19 r, 28 is usually deployed to describe proceedings which the court feels compelled to terminate because their continued existence cannot be justified having regard to the relevant circumstance.”

Section 22 of the Act states:

22.— (1) 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) Not later than 42 days after the Director of the Workplace Relations Commission dismisses a claim under this section, the complainant may appeal against the decision to the Circuit Court on notice to the Director of the Workplace Relations Commission] specifying the grounds of the appeal.

(3) On appeal the Court may affirm or quash the decision.

The matters before me are not dissimilar to other complaints made against the Respondent. While each case must be determined on its own merits a party must be able to comprehend the wrong alleged.

Discrimination is defined at section 3 as:

(1) For the purposes of this Act discrimination shall be taken to occur—

(a) where 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) or, if appropriate, subsection (3B) (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,

(b) where a person who is associated with another person—

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination,

The details set out by the Complainant are sparse.

The Prima Facie test requires a degree of specificity that could give rise to an inference of discrimination based on establishing facts that tend to show a causal connection between the alleged discriminatory treatment and the ground being relied upon. While it does not demand a standard of proof based on the balance of probabilities it does require facts that have a weight or significance that it could be argued that discrimination has occurred. The alleged omissions of the Respondent are not in themselves discriminatory.

 As an example, in CA-00016800-001 it is alleged that the Respondent failed to respond to his request dated 27/09/2017 in relation to Montepellier Parade, Blackrock, Co Dublin.

In this complaint the Complainant details Gender and Race as the grounds to base the case. There is no detail relating to gender. The ground relating to race is an assertion because he states because I am Black. By analogy someone could argue because I am female, they failed to respond to my request; however, that is not in itself a causal connection between the alleged discriminatory treatment and the ground being relied on. If one suffers a wrong and identifies a ground in the Equal Status Act, the fact that I possess a characteristic defined as a ground and have suffered a perceived wrong are not facts that show a causal connection.

The following are the other complaints:

CA-00016801-001: That the Respondent failed to respond to his request dated 27th/09/2017 in relation to 11 Old Cabra Road.

CA-00016802-001: I am offended that daft media failed to respond to my request dated 27/09/2017 in relation to case reference CA-0007381.

CA-00016803-001: I am offended that daft media failed to respond to my request dated 27/09/2017 in relation to case reference CA-0007384.

CA-00016804-001: I am offended that daft media failed to respond to my request dated 27/09/2017 in relation to case reference CA-0007370.

CA-00016805-001: I am offended that daft media failed to respond to my request dated 27/09/2017.

These complaints are not detailed with sufficient particularity where the Respondent would be able to understand the alleged wrongs based on the requirement to meet a prima facie case.

The failures as detailed are linked to Gender and Race; however, no causal connection has been detailed in the complaint where a case could be maintained. A balance must be struck with the right to be heard and the right of the Respondent to know what is being alleged. Where the Complainant has been requested to provide greater detail and fails to do so I must conclude that the very minimum level of detail required to maintain a case has not been met.

Section 22 of the Act states:

Dismissal of claims.

22.— (1) The Director 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.

(2) Not later than 42 days after the Director of the Workplace Relations Commissiondismisses a claim under this section, the complainant may appeal against the decision to the Circuit Court on notice to the Director of the Workplace Relations Commissionspecifying the grounds of the appeal.

(3) On appeal the Court may affirm or quash the decision.

In the circumstances of this case and this Complainant, where similar complaints have been made by this Complainant against Daft that have been heard, where no further details have been provided, which were sought and have not been submitted, I am compelled todismiss  these claims as provided if  at any stage I am  of opinion that it has been made in bad faith or is frivolous, vexatious or misconceived or relates to a trivial matter. Alleged discrimination is not a trivial matter; however, the complaints as detailed cannot be maintained as they failed to detail a prima facie case and show a causal connection between the alleged wrong and the ground being relied upon.

I determine that the complaints are misconceived; as do otherwise would be unjust and lead to unnecessary submissions and cost to the Respondent, when they could not know what case, they must answer.

Summary of Complainant’s Case:

Summary of Respondent’s Case:

Findings and Conclusions:

Decision:

Section 25 of the Equal Status Acts, 2000 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act.

Dated:   8th July 2024

Workplace Relations Commission Adjudication Officer:  Brian Dalton

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