Complainant

Respondent

Parties

Azra  Sabic

University College Cork

Representatives

  Attended In Person

David McCarroll RDJ LLP

Act

Complaint Reference No.

Date of Receipt

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

CA-00059812-001

05/11/2023

On 5 November 2023, the Complainant introduced herself as a Student of the Respondent University and submitted a complaint of discrimination by reason of her disability and failure to receive reasonable accommodation for that disability.

She submitted that she had been discriminated by her employer, prospective employer, employment agency, vocational training or other bodies.

The most recent date of discrimination was recorded as 3 July 2023 as was described as:

“Following a debilitating injury to my foot (broken 5th metatarsal) caused by a UCC student during a UCC dance class on 4 April 2023, UCC School of Education determined that I was not allowed to progress to year 3 of my course, since I could not attend on my 10-day placement.

The decision not to allow me to progress to year 3 was made ostensibly on 13 April 2023, but formally notified to me by letter dated 29 June 2023 received 3 July 2023.”

The Complainant also referred to an ongoing mental health condition.

On 8 November 2023, the WRC acknowledged receipt of this complaint  as her seeking adjudication by the WRC under Section 77 of the Employment Equality Act, 1998

“You will see from this letter that the WRC has generated specific complaints from the contents of the selections made in your submitted complaint form. Please check that the specific complaints stated above reflect all the issues you wish to raise with the WRC. Please alert the WRC if there are issues you have raised but for which a specific complaint has not been generated.”

On that same day, the Respondent was notified of the complainant seeking adjudication by the WRC under Section 77 of the Employment Equality Act, 1998.

On 21 December 2023, the Respondent representatives, Ronan Daly Jermyn LLP came on record in the case and indicated that the Respondent “shall be vigorously defending the claim in full “and sought “a clear statement setting out the details of the Complainants case “

On 15 May 2024, I was delegated this case from the Director General of the WRC. On that day, also, both parties were invited to an in person hearing in the matter scheduled for 8 July 2024 at 11.30 am in Cork.

On that same day, the Complainant requested that the hearing take place in her city of residence in Dublin and inquired whether a hybrid hearing would be possible to accommodate the Respondent?

The Respondent was requested to consent to a hybrid hearing.

On 21 May 2024, the Responded vetoed the request to alter the formation of the hearing on grounds that “fairness and justice require it to be evaluated by the Adjudication Officer in a face-to-face environment “

On 5 June 2024, the WRC confirmed that the Hearing would proceed as scheduled “with both parties in attendance face to face in Cork.”

The Complainant was requested to submit her submissions as soon as possible.

On 9 June 2024, the WRC vetoed a postponement request submitted by the Respondent.

On June 6, 2024, the Complainant committed to having her evidence and submission uploaded 17 to 18 working days before the 8th of July.

Thereafter, the complainant submitted a sequencing of loose medical documents and a document from the Student Health Service at UCC dated 25 April 2024.

“Please consider the above-named student for the fees in order to repeat year 2 of Course CK125 in UCC.”

The Complainant also submitted a “Campus Watch Complaint form “in which she was named as a subject matter and signed by Professor Kathy Hall at the School of Education, dated 30 June 2023.

She also attached inter party correspondence relating to that process. She augmented this with her own complaint under Campus Watch dated 4 October 2023, where she referred to having a Representative.

A careful reading of these voluminous papers suggests a very problematic live academic relationship between both parties to this case.

On June 12 and 14 June 2024, the Complainant forwarded her draft of her written submission to the WRC.

“I assure you that there will be no changes made to arguments, I will just modify grammar /formatting issues.”

The Submission was headlined as ADJ 48532, The Equal Status Act, 2000 -2015 and was forwarded to the Respondent.

The Respondent submission and booklet of documents were received on June 27, 2024, and flagged a jurisdictional issue that the Complainant did not have the status (locus standi) of Employee under the 1988 Act (sic 1998) and could not invoke the Employment Equality 1998 Act.

On June 27, 2024, the Complainant wrote to the WRC and recorded that her complaint should not be categorised under Section 77 of the Employment Acct but rather “the ESA 2000-2018.”

She added that the complaint was an ES complaint and mentioned that:

 She may have selected an incorrect option on a subsection within the complaint form.

On July 1, 2024, the WRC informed Ms. Sabic that the WRC was unable to change a complaint form once submitted to the WRC and directed the complainant to raise the issue at hearing.

The Complainant proceeded to send in a further voluminous amount of documentation to WRC without any clear reference to the case at hand.

 On Friday, July 5, the last working day before the hearing, Mr. Mc Carroll for the Respondent raised what he called a serious concern at this practice.

“It is a matter of serious concern for the Respondent that we are in continued receipt of copious, piecemeal emails with attachments and files and various assertions and comments (copied to either the WRC or other external parties) the relevance, context and meaning of which are largely not understood. “

On July 1, 2024, I wrote to the Complainant, copying the Respondent, seeking some documentation to assist in my investigation.

1 documentation on date of entry as a student

2 documentations on failure to progress within the course.

3 details of representation and witnesses

4 an invitation to read the WRC guide to hearings.

I also set out how I intended on progressing the hearing.

In light of the volume of uncoordinated documents, I wrote again on the next day to try and illicit a focused response to my request for relevant documents.

I asked the Complainant to cease in submitting any further documents outside of those I had requested. I added that I would address the matter of my jurisdiction at hearing.

I continued to receive documents from the Complainant beyond this juncture and requested that they be returned to her.

The Complainant responded to my July 1, 2024, email on 5 July 2024.

Ms. Sabic confirmed that she would attend alone at hearing and would represent herself in the “ES” case as a Litigant in Person. She did not submit the letter referred to as June 29, 2023, from UCC.

The Respondent submitted a Preliminary Issue in advance of and during the Hearing.

The Complainant is a Lay Litigant and is currently a student in year 2 of Bachelor of Education, Sports Studies and Physical Education, University College Cork. (B. Ed)

On 5 November 2023, the Complainant, Ms Sabic filed a complaint of Discrimination on grounds of Disability and failure to receive reasonable accommodation against the Respondent.

The Complaint was received and processed in accordance   with section 77 of the Employment Equality Act, 1998.

The most recent date of discrimination was cited as 3 July 2023.

The Complaint specific details were submitted as a complaint relating to Employment Equality on this complaint form.

She submitted that she had been unlawfully discriminated against on the basis of a physical disability caused by an unnamed UCC Student during a Dance class on 4 April 2023.

Ms Sabic outlined that she was prevented in her progression to year 3 of her course as she could not attend a 10-day placement.

This decision was made on 13 April 2023 “and notified to me by letter dated 29 June 2023, received 3 July 2023 “. She referred the matter to the Student Ombudsman, seeking mitigation and reasonable accommodation, this was rejected on 3 July 2023.

Ms Sabic added that she was further unlawfully discriminated against on the basis of a mental health disability. She also tabled a number of procedural questions on course progression.

1 where is it stated that module ED 2317 cannot be carried forward as a failed module.

2 exceptional circumstances for carrying the module forward as a failed module.

3comparative analysis of any comparable placement module being carried over in exceptional circumstances.

4 all examples of a student carrying this module forward for example during covid 19.

5 any alternative arrangements

All information from Ms Sabic’s file unredacted in respect of the decision not to allow her to progress to Year 3.

The Complainants Outline submission:

The Complainant submitted that she dismissed the Respondent reliance on the argument that what happened in the case was “…. Simply an application by the University of its Rules and Policies “

The Complainant detailed her journey in illness and injury from December 2022 and the corresponding pathway of Academics concerns about her course performance.

The Complainant described a progressive feeling of alienation and disputed that the University.

 “Should not have assumed medical certification precluded participation without considering accommodations “(School Placements)

Ms Sabic registered her disappointment with the University Disability Support and Ombudsman services.

Ms Sabic stated that her treatment during the disciplinary process constituted discrimination and victimisation. She submitted that she disputed sending large volumes or emails and cited the lack of response to emails she did send.

The Complainant took issue when the University sought to limit the receipt of emails from her in time.

The Complainant referred to an ES2 form as the Respondent defence as not addressing the failure to provide reasonable accommodation for her injury.

The Complainant made a formal Student Complaint on 4 October 2023 which was not upheld and has been resubmitted under Dignity at work policy March 2024.

She shared person medical details of June and September 2023 and feedback from Occupational Health Department.

The Complainant secured funding support from SUSI to support repeat year funding.

The Complainant set her preferred remedies to be considered as

1 EDI and Fitness to Practice training to be provided to numerous departments to equip staff with the necessary tools to handle bespoke situations.

2 €2,188.26, rent, travel, student capitation fee, printing.

3 Compensation to address effects of unlawful discrimination.

The Hearing Day:

The Complainant presented as a Litigant in Person and was advised that it would be necessary for me to keep my phone on but silenced in case I needed to summon medical assistance in case of an exacerbation of her condition. She assured me that she had turned off her phone on my request and would observe the rule on taping or live streaming of the proceedings.

I proceeded to work through the complaint form where the Complainant accepted the Respondent clarification that she had worked for the Respondent over the course of 3 separate weeks. She immediately clarified that she wished to progress her complaint under the Equal Status Act 2000, referred to as “ES” and “It was always ES.” She stated that she did not wish to advance a case under the Employment Equality Act. She did not withdraw this case .

The Complainant submitted that she may have made an error in filing the claim within the drop-down box and had mistakenly ticked box 1 rather than the correct box 5. She had not noticed this error until she read the Respondent submission prehearing.

She submitted that the complaint should be re formatted as a complaint under the Equal Status Act as she had clearly delineated her position held as student and the true nature of her complaint was always known by the Respondent through prior notifications by her Solicitor of ES1 and the Respondent returning the ES2.

Response to the Preliminary Issue

The Complainant clarified that it had always been her intention to process this claim under the Equal Status Act 2000 and the Respondent was fully on notice of that intention.

Nobody had raised this distinction between the two Acts with her before the Respondent submission was received.

Ms Sabic referred to an ES1 notification forwarded to the Respondent in August 2023. She submitted that the Respondent had completed an ES2 response included in her paperwork dated 28 September 2023. She stated that Mr Mc Carroll had compiled this response.

She explained that she had lodged a Personal Injury complaint first in time, arising from her April 2023 injury and that both her then Representatives at Solicitor and Counsel level had advanced the complaint under ES (Equal Status) She was no longer instructing this team for ES purposes, but they remain aligned to and her representatives in the Personal Injury action against the Respondent.

She acknowledged that the submission of the large portfolio of documents from her “over preparing “in light of her Lay Litigant status.

I explained the distinction between both Equal Status Act 2000 and Employment Equality Act 1998 in terms of notification requirements, remedies and distinguishing appeal pathways’ Circuit Court and Labour Court respectively. I sought comments .

Ms Sabic confirmed that her Representative had stepped away from her case mid-October and that she filed the complaint to the WRC herself online, in a library and with some difficulty. She had to download adobe.

 She confirmed that the reference to the Employment Equality Act 2000 was a genuine mistake and she expressed surprise that she was not made  aware of her mistake much sooner as she would have acted on the error.

The Complainant tabled a proposal seeking face to face discussions with the Respondent, outside of the hearing. She made a strident application to that end and lamented that it took a reference to the Equal Status Act to get the Respondent to engage with her. The Respondent was not minded in accepting her invitation for the reasons cited below.

I began to explore whether  Section 12 on Vocational Training had any application in the case?

The Complainant did not align the B. Ed with Vocational Training and once more re stated her cause of action was under Equal Status Legislation and not Employment Equality.

As a next step at hearing, I began to explore whether the Complainant was making an arguable case in the face of the Respondent petition to dismiss. I cited the European Convention of Human Rights at Article 13 and confirmed that I was a first instance decision maker.

I explained that a complainant in a case has a right to an effective remedy and I wished to inquire into the circumstances relied on by the Respondent in their seeking to dismiss the case.

I also explained that I was exploring whether it would be feasible for me to amend the claim to that of Equal Status Act 2000 in the face of the Respondent strident objection.?

 I explained the parameters of section 77 (A) (1) of the Employment Act, 1998 as:

 Dismissal of claim.

77A.— (1) The Director General 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) (a) Not later than 42 days after the Director General of the Workplace Relations Commission] dismisses a claim under this section, the complainant may appeal against the decision to the Labour Court on notice to the Director General of the Workplace Relations Commission] specifying the grounds of the appeal.

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

I observed that the Complainant expressed a frustration with the progression of the preliminary argument, and I requested her to frame the complaint she wished to be heard on.

She said that she had been discriminated due to a temporary physical illness and was denied reasonable accommodation to progress to year 3 of the B. Ed course.

I asked her to stipulate the timing of this event and she responded by referring to letters she received as a student on 12, 13 April 2023 and 3 July from the Student Ombudsman, describing these as “nuanced “She did not accede to my request to see the letter referred to in her complaint of 29 June 2023.

She presented what she referred to as a modified ES1 form at hearing dated 5 November 2023. She helpfully clarified that this was not the primary ES1 form actioned by her then Representative, but one constructed by herself. She confirmed that the Personal Injuries Litigation remained live against the Respondent.

The Complainant confirmed that she had yet to progress from year 2 to year 3 and had spent the last academic year in repeat mode with SUSI support in the B. Ed Course. She expressed a clear dissatisfaction with her present situation.

The Complainant opposed the petition to dismiss the case and once more contended that the case should go ahead under the Equal Status Act as she had planned. She rejected any barriers to this progression through respondent prejudice.

The Respondent is a Large University in the Cork area and has hosted the Complainant as a Student on their Bachelor of Education, Sports Studies and Physical Education with Concurrent Arts (Irish) leading to a Teaching Qualification from September 2021. This is a 4-year course.

The Course is governed by the Marks and Standards book which sets down rules of progression through the 4 academic years.

The Complainant progressed from year 1 to year 2 on her academic journey through the award of a pass mark of 699/1200 in September 2022.

The same marks and standards book set down a threshold for progression from year 2 to year 3.

·        Aggregate mark of 40% achieved (560/1400)

·        Pass modules to the value of 60 credits.

·        School Placement of ED 2317 is passed.

·        Irish passed for those specific students.

·        Have satisfied the Fitness to Practice requirements.

·        70 credits, minimum in year 2

The Complainant accumulated 475/1200 and despite a number of course deferrals, she did not pass any further module exams or assessments and did not receive any further credits which in turn prevented her transition to year 3.

The Respondent submitted a Preliminary Argument by way of written submission:

The Respondent initially disputed that the Complainant had ever been an employee of the Respondent and lacked the legal standing to ground a cause of action pursuant to the Employment Equality Act, 1998.

Mr Mc Carroll submitted that the Complainant did not come within the scope of Section 8(1) of the Act and had never been employed.

On the morning of the hearing and by means of oral argument, the Respondent clarified that position on the Respondent acceptance that the complainant had in fact a three-week employment record at the University over 2021 and 2022. However, Mr Mc Caroll distinguished this period from the period of time relied on by the complainant, that is Ms Sabic’s time spent as a student.

He argued that the 1998 Act does not apply where a student is unsuccessful in meeting the course requirements for progression from year 2 to year 3 and an Adjudicator would be acting ultra vires to Section 8 if she progressed.

Mr Mc Caroll exhibited the most recent Revenue Commissioners guide to Determining Employment status to emphasise that no employment relationships existed.

The Respondent registered a voice of opposition to any anticipated attempt by the Complainant to seek to amend the instant claim to that of the Equal Status Act 2000 as

 “Any reclassification of the claim as being properly a claim under the 2000 Act prejudices the Respondent in that it permits the consideration of a claim that would otherwise be out of time “

The date of notification of year 2 non progression was 13 April 2023. The time frame for submission of a claim of 6 months or 12 months on reasonable cause had both expired.

Mr Mc Carroll also argued that the Complainant was denied protection of Section 5 of the Equal Status Act as the circumstances relied on by the Complainant are not encompassed by Section 7 (2) of the Acts.

The Respondent submitted that the case was entirely misconceived.

The Respondent went on to outline the Academic Journey and Support Framework travelled by both Parties.

1 The Respondent detailed two endeavours by the University to set up two School Placements, 9 January and 17 April 2023. The Complainant missed the first placement through illness and was certified unfit to attend 6-25 April 2023.

This prompted the letter dated 12 April 2023, which confirmed that the school placement would not proceed. On 13 April 2023 the School of Education Manager wrote to the complainant

“I can confirm that you are unable to complete the placement element of ED 2317, this means that you will fail this module, in order to pass second year and progress to third year, it is a requirement that you pass ED 2317, therefore it is no longer possible for you to progress top third year “

The Respondent attended the hearing in the company of a 3-person delegation from the Respondent University and confirmed that their phones were turned off and understood that there was no taping or live streaming of the proceedings.

The Respondent accepted the circumstances of why I kept my phone switched on, but on silent.

Preliminary Issue at Hearing:

In addition to the written submissions, Mr Mc Carroll confirmed that the complainant had engaged in student employment on 3 occasions between September 2021 and March 2023 and had been paid correctly.

He contended that the complainant was no longer an employee and was an active student on the B. Ed course. He said that the circumstances of the complaint before the WRC arose from her status as a student failing to progress at year 2 end.

She had not undertaken a mandatory 3-week placement (unpaid work) as part of her course content and had not been in a place to be considered for progression to year 3.

Mr Mc Carroll in referring to the Revenue guidelines on what constitutes an employee, argued that the case was progressed under the Employment Equality Act, 1998. The Complainant was not an employee and as such the case was not properly before the WRC.

In answer to my question, Mr McCarroll clarified that the Respondent sought that the case be dismissed as misconceived.

Mr Mc Carroll rejected the Complainants stated latter day awareness of her mistake in compiling her complaint before the WRC and contended that she had been legally represented throughout 2023.

I asked the Respondent if they wished to consent to amend the pleadings to reflect the Complainants stated wish to advance her case under the Equal Status Act 2000.?

I was met with an emphatic “No “on grounds of the Respondent being prejudiced and the complaint as framed not “being properly before you “. He submitted that the parties were already engaged in ongoing in-depth processes through the procedures at the University.

 Mr Mc Carroll pointed to the in excess of 400 pages that he had received in the closing days prehearing of the case, which he argued, were not demonstrably linked to anything, not least a complaint under the Equal Status Act, 2000. The Respondent vetoed the complainant’s suggestion for face-to-face discussions.

 He submitted that the Equal Status Act required a set notification procedure and the measures adopted by the complainant had not reflected a bona fide progression on that notification, but rather a dissatisfaction arising from failure to progress on her academic course.

I began to explore where Section 12 on Vocational Training had any application in the case?

Mr Mc Carroll denied that the Course could be at one with the provisions of section 12 as it was not a technical course. In response to my question regarding the throughput of the candidates, the Respondent submitted that approx. 80 % of candidates went on to teach but it was not an automatic progression for all students .

The Respondent referred to his exhibit on the Complainants marks and standards. (Record of academic marks awards) I asked the complainant to validate the document as her name was not headlined on it.  Ms Sabic confirmed these were her record of marks.

Mr Mc Carroll in responding to the complainants framing of her complaints pointed to the marks and standards document 2022/2023 (Summer and Autum) which did not record the optimal markings for progression.

This document provoked a memory of my own marks and standards at UCC and I immediately disclosed that I had completed my training in the Law School at UCC in 2013, without objection from either party.

In addressing whether the Complainant had an arguable case? The Respondent repeated that the Complainants petition to change horses remained prejudicial to the University, who stood opposed to progression under the Equal Status Act 2000.

I have been delegated a complaint lodged under the Employment Equality Act 1998. I received this delegation on May 15, 2024, commenced my investigation and prepared for hearing accordingly.

I endeavoured to read the complainants prehearing submissions which was filed randomly and without clear coherence. In short, the file contains an extensive chronology on episodes of illness and a number of statements of concerns by agents of the University and indeed by the Complainant herself, which have culminated in cross complaints and cross investigations.

There is also a Personal Injuries Action in being where the complainant told me that she has retained Counsels and Solicitors. This matter is ongoing against the University and appear to have arisen following an April 4, 2023, incident.

The Complainant has come to hearing to  seek to change her pleadings from that she initiated on 5 November 2023, Employment Equality Act 1998 to that of the Equal Status Act 2000.

Both Parties accepted the distinction in both Statutes at hearing.

I welcomed both Parties to hearing, the Complainant as a Litigant in Person and the Respondent as having a Representative.

The Complainant made a number of deprecating remarks regarding her own lack knowledge of the Law. I assured her that she was welcome at hearing and my role was to hear from both parties during this Preliminary Issue.

The Respondent was very respectful of the Complainants articulation of her case but steadfast in their own stated position.

It falls to me to compile this decision, having read into the case as much as possible and having listened carefully to both parties at hearing over 2.5 hours.

My delegated power under section 77(A)(1) of the Employment Equality Act 1998 is a power I have seldom if ever used over 9.5 years in this role.

I accept that the role of the WRC is to administer justice in public to both Parties under Article 37 of the Constitution

 Tomasz Zalewski v. Workplace Relations Commission & Ireland & AG [2021] IESC 24.

 I further accept that justice must be seen to be done by the Parties at first instance.

This requires me to adopt both a listening and inquisitorial approach on any preliminary issue both from the proposer, in this case the respondent and to the responder, in this case the complainant.

I derive my jurisdiction at this point from

Section 79 (3A) of the Employment Equality Act 1998

If, in a case which is referred to the Director General of the Workplace Relations Commission under section 77, a question arises relating to the entitlement of any party to bring or contest proceedings under that section, including:

(a) whether the complainant has complied with the statutory requirements relating to such referrals,

(b) whether the discrimination or victimisation concerned occurred on or after 18 October 1999,

(c) whether the complainant is an employee, or

(d) any other related question of law or fact,

the Director General of the Workplace Relations Commission may direct that the question be investigated as a preliminary issue and shall proceed accordingly.

If I can write in plain English for a moment in parable travel terms.

On the 15 May 2024, I was delegated management of a case with a clear marker  of Employment Equality Act 1998. This case contained two sets of participants. Ms Sabic and the Respondent University.

I began to plan the journey map through a read through of the file. The file did not contain a contract of employment but did contain a copy of a partially redacted pay slip which linked the complainant to an employment relationship, albeit the narrative of the complaint was firmly rooted in a student tabling questions relating to a failure to progress academically in the first half of 2023.

I canvassed more detail from each of the Parties. The Complainants submissions were not based on my delegated Investigation under Employment Equality Act 1998 but rather a separate Law called Equal Status Act 2000

I learned that there had been an undisputed employment relationship, albeit fleeting over 3 weeks during the complainant’s tenure as a student.

The Complainant has sought to change direction in the case.

The Complainant confirmed that her solicitor had  previously sent an ES1 and received an ES 2 reply prior to  her making the instant complaint on 5 November 2023. She stated that her legal representative stood back in the case from October 2023. This post dated her launching a separate complaint against the University.

 The Complainant confirmed that she understood that by making the complaint on 5 November, 2023  to WRC, this was the next necessary sequence  of action.

The Respondent rejected the Complainants petition to change direction on this journey and has sought that the case be dismissed as prejudicial to the Respondent.

I explored whether the Respondent would consent to change direction to amend the pleadings.? In this I was ultra-aware of the Complainants Litigant in Person status and noted the application of

Louth VEC and Equality Tribunal at the Supreme Court [2016] IESC.

This was a case which constituted a challenge to a live case progression at the former Equality Tribunal when the public body opposed the expansion of a claim at hearing as being outside the scope of the terms complained of.

The Supreme Court rejected the challenge and returned the case to the presiding Adjudicator.

At paragraph 19, the Court through Mc Kechnie J made a salutary remark that the Employment Equality Act, which the complainant, Mr Pearse Brannigan had invoked was not self-executing.

“ .. in the sense that the individual standing of the applicant and the subject matter must fall within its provisions before the Tribunal can exercise the jurisdiction vested in it “

The Court went on to stipulate that the case must be referred to the then Director of Equality, followed by a demonstration of discrimination and if in issue, the complainant must satisfy each of the qualifying requirements.

Mc Kechnie J went on to state that the Tribunal cannot “Freelance its Inquiry “

 the Tribunal as a” creature of statute must live by that Statute. Its jurisdiction is found solely within the provisions of the enabling Act. It has no further competence, and it cannot create add to or enlarge the jurisdiction so vested in it.

Kileen v Director of Public Prosecutions [1997] 3 IR

The Court went on to reflect through Hedigan J in

 Clare County Council v Director of Equality Tribunal [2011] IEHC 303,

 that a Lay Litigant is not expected to articulate the complaint the same way as a Professionally qualified advocate and pointed to some lea way on formulation of a complaint, however that lea did not extend to changing the Law to be applied.

I am compelled to follow the dictates of the Supreme Court on the special circumstances surrounding a Litigant in Person.

In the past, where  I have found a lack of clarity of intention on a complainant’s statement of claim, such as in ADJ 27551, I reflected this by recognising that the respondent was not prejudiced by answering a claim from the narrative of the complaint as opposed to the headline, collective agreement as it was all encapsulated under the same piece of Legislation i.e. Employment Equality Act, 1998 .

On this occasion, I am being requested to forsake my delegated jurisdiction and exercise a judicial activism that is outside of my reach.

At the conclusion of the hearing, I took some time to reflect on what I had heard and asked the parties to return to their rooms to allow me some time to consider what I had heard.

1 I explained that this was a Public Hearing and had been announced to the world as a case under the Employment Equality Act 1998 that an application to change direction at hearing fell to be dealt with as a Preliminary issue .

2 The Complainant had helpfully clarified that she was not an employee and is advancing her case against her profile as a student.

3 Neither party had placed the ES1 and ES2 notifications before me at hearing . The Complainant confirmed that she had modified the ES1 dated November 5, 2023, but had not served it on the Respondent.

I did locate an ES2 amongst the complainants papers .

This was framed as  a response to the complainant and not her named representative and was dated 28 September 2023 . The document denied Discrimination and detailed the support measures and interventions which surrounded the complainants non progression on her academic course .

There was an unexplained 5 week pause following the complainants receipt of this document . Both Parties agreed at hearing that the complainant was legally represented on this matter up to early October 2023 . I had sight of a respondent declaration which cited the letter of 29 June 2023 by the school of education “ advising her of the path to progression regarding the Autumn supplemental examinations etc”

I have not seen the ES1 referred to as having been sent on 31 August 2023.

4 The Complainant had made a mistake on the Act she wished to progress under. I find that the Complainant did not exercise sufficient due diligence in the formulation of her complaint on 5 November 2023. She did not respond to the letter received from the WRC of 8 November 2023 seeking if she could check that the acknowledgement was in order and if not to alert the WRC.

5 I explained that a complaint under Equal Status Act must be accompanied by ES1 and ES2 in any notification of claim to the WRC .

 This would demonstrate that parties had sought to reconcile any differences. The Complainant has not presented the initial ES1 attributed to her Representative as scribe.

It is of note that the ES 1 presented prehearing is a replica of wording of the WRC complaint of 5 November 2023. It is of no status as it was not served on the Respondent.

6 The Complainant referred to a letter dated 29 June 2023 on her complaint form but resiled from furnishing me with that letter, but rather stating that it was an assembly of notifications.

The Respondent, in response  has at all times stated that the Complainant has engaged in a collateral attack on her academic failure to progress from Year 2 to Year 3 B. Ed.

7 I have not established that the Complainant is covered by the provisions of Section 12 of the Act on vocational training as the course did not comply with section 12(2) definition.

2) In this section “vocational training” means any system of instruction which enables a person being instructed to acquire, maintain, bring up to date or perfect the knowledge or technical capacity required for the carrying on of an occupational activity and which may be considered as exclusively concerned with training for such an activity. 

As I am informed that the Course delivers graduates to other areas outside Teaching alone.

8. The Respondent has raised a perceived prejudice in the face of an arbitrary alteration of the Jurisdiction governing the complaint from Employment Equality to Equal Status.

I have inserted the Heads of both Acts to highlight their distinction and grounds for progression.

Employment Equality Act, 1998

AN ACT TO MAKE FURTHER PROVISION FOR THE PROMOTION OF EQUALITY BETWEEN EMPLOYED PERSONS; TO MAKE FURTHER PROVISION WITH RESPECT TO DISCRIMINATION IN, AND IN CONNECTION WITH, EMPLOYMENT, VOCATIONAL TRAINING AND MEMBERSHIP OF CERTAIN BODIES; TO MAKE FURTHER PROVISION IN CONNECTION WITH COUNCIL DIRECTIVE NO. 75/117/EEC ON THE APPROXIMATION OF THE LAWS OF THE MEMBER STATES RELATING TO THE APPLICATION OF THE PRINCIPLE OF EQUAL PAY FOR MEN AND WOMEN AND COUNCIL DIRECTIVE NO. 76/207/EEC ON THE IMPLEMENTATION OF THE PRINCIPLE OF EQUAL TREATMENT FOR MEN AND WOMEN AS REGARDS ACCESS TO EMPLOYMENT, VOCATIONAL TRAINING AND PROMOTION, AND WORKING CONDITIONS; TO MAKE FURTHER PROVISION WITH RESPECT TO HARASSMENT IN EMPLOYMENT AND IN THE WORKPLACE; TO CHANGE THE NAME AND CONSTITUTION OF THE EMPLOYMENT EQUALITY AGENCY AND PROVIDE FOR THE ADMINISTRATION BY THAT BODY OF VARIOUS MATTERS PERTAINING TO THIS ACT; TO ESTABLISH PROCEDURES FOR THE INVESTIGATION AND REMEDYING OF VARIOUS MATTERS ARISING UNDER THIS ACT; TO REPEAL THE ANTI-DISCRIMINATION (PAY) ACT, 1974, AND THE EMPLOYMENT EQUALITY ACT, 1977, AND TO PROVIDE FOR RELATED MATTERS. [18TH JUNE 1998]

Equal Status Act 2000

AN ACT TO PROMOTE EQUALITY AND PROHIBIT TYPES OF DISCRIMINATION, HARASSMENT AND RELATED BEHAVIOUR IN CONNECTION WITH THE PROVISION OF SERVICES, PROPERTY AND OTHER OPPORTUNITIES TO WHICH THE PUBLIC GENERALLY OR A SECTION OF THE PUBLIC HAS ACCESS, TO PROVIDE FOR INVESTIGATING AND REMEDYING CERTAIN DISCRIMINATION AND OTHER UNLAWFUL ACTIVITIES, TO PROVIDE FOR THE ADMINISTRATION BY THE EQUALITY AUTHORITY OF VARIOUS MATTERS PERTAINING TO THIS ACT, TO AMEND THE EMPLOYMENT EQUALITY ACT, 1998, IN RELATION THERETO AND IN CERTAIN OTHER RESPECTS AND TO PROVIDE FOR RELATED MATTERS. [26th April 2000

I have reflected on EDA 1017 at the Labour Court in the case of Department of Defence and Tom Barrett, an appeal on quantum taken under the Employment Equality Act 1998 as amended. The Complainant had made a complaint on grounds of religion on celebration of mass. The Labour Court focussed on the remoteness of the circumstances complained of from the complainant and found the complaint of victimisation unsustainable in law. The Court had regard for the High Court case which proceeded the Supreme Court in Louth VEC 2009, which respected that the complaint was not limited by the contents of the complaint form.

While I am bound to follow the Section 79 direction on Preliminary Issue, my attention is drawn to the application of Rules of the Superior Courts in Heaphy V Governor of Bank Of Ireland [2024] IEHC 322, Mulcahy J.

This was a civil action taken under the Competition Act where the Complainant had parted company with their representative and had sought to add further parties to a very complex case which had been prefaced by extensive legal decisions.

In pondering the application of the Rules of the Superior Courts. Mulcahy J applied the principles of Scotchstone in dismissing the case.

In Scotchstone Capital Fund Ltd v Ireland[2022] IECA 23, the Court of Appeal helpfully summarised the principles applicable to applications to strike out proceedings (at para. 290):

“In essence these are:

·        a) An application for a strike out of a plaintiff's claim on the basis of the inherent jurisdiction is not a substitute for summary disposal of a case.

·        b) The jurisdiction exists, not to prevent hardship to a defendant from defending a case, but to prevent against an abuse of process of the court by the plaintiff, e.g. causing a manifest injustice to the defendant in being asked to defend a case which is bound to fail.

·        c) The burden of proof is on the defendant.

·        d) There is a degree of overlap between bound to fail jurisprudence and cases which are held to be frivolous and vexatious. However, the latter are cases which may have a reasonable chance of success but would confer no tangible benefit on a plaintiff or are taken for collateral or improper motives or where a plaintiff is seeking to avail of scarce resources of the courts to hear a claim which has no prospect of success.

·        e) The standard of proof is on the defendant/respondent to show that the claim is bound to fail or frivolous or vexatious.

·        f) Bound to fail may be described inter alia, as devoid of merit or a claim that clearly cannot succeed.

·        g) Frivolous and vexatious must be understood in their legal context as claims which are, inter alia, futile, misconceived, hopeless.

·        h) The threshold for the plaintiff successfully to defend such a motion is not a prima facie case but a stateable case.

·        i) It is a jurisdiction only to be used sparingly, in clear cut cases and where there is no basis in law or in fact for the case to succeed.

·        j) The court must accept that the facts as pleaded by the plaintiff in considering whether an Order pursuant to O.19, r. 28 may be made but in the exercise of its inherent jurisdiction the court can to some extent look at and assess the factual basis of the plaintiff's claim.

·        k) Where the legal or documentary issues are clear cut it may be safe for a court to reach a conclusion on a motion to dismiss.

·        l) Even where a plaintiff makes a large number of points, each clearly unstateable, it may be still safe to dismiss; and

·        m) In some cases, even if the factual disputes are clear cut or may be easily resolved, the legal issues or questions concerning the proper interpretation of documentation may be so complex that they are unsuited to resolution within the confines of a motion to dismiss.”

9 I am aware that the complainant has already initiated a Personal Injuries case against the Respondent. The Complainant has sought expenses during the instant  litigation which may be more relevant to a parallel action, first in time (Henderson and Henderson)

I have concluded my Preliminary Investigation in accordance with Section 79(3) (A) of the Act and must find in favour of the Respondent when I find that I cannot accede to the Complainants request to change direction in this case and alter my delegated jurisdiction from that derived from the Employment Equality Act 1998 to that of the Equal Status Act 2000.

I have established a high level of animus directed by the complainant to the Respondent within oral submissions.

I can accept that the Complainant made a mistake in the formulation of her intended litigation on 5 November 2023. She received an immediate opportunity to mend her hand so to speak in that regard by means of the November 8, 2023, WRC correspondence. This went unanswered. I find that she failed to apply sufficient due diligence to formatting the complaint she wished to make under the correct law .

I find that I cannot now depart from my delegated jurisdiction to a separate jurisdiction outside of the consent of the Respondent, which was not forthcoming on this occasion.

While I fully accept that the power to dismiss any case is a power that should be sparingly used. I have identified that this is an occasion where it is necessary to dismiss this case on the complainant’s lack of locus standi, fundamental misunderstanding of the Legislation and her failure to show an arguable case. It is my opinion that she has sought to alter course in Legislation as a collateral attack on her non progression academically at the Respondent University .

I was unable to obtain the Respondent consent to accept the case under the Equal Status Act and I accept their argument of prejudice.

Neither could I apply the provisions of Section 12 (2) on Vocational Training on this occasion.

In accordance with my powers under Section 77(A) (1) of that Act, I have dismissed this claim as misconceived.

Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

In accordance with my powers under Section 77(A) (1) of that Act, I have dismissed this claim as misconceived.

The complaint was made under the wrong Legislation and the complainant has acknowledged that she erred in that regard.

Preliminary Argument on Jurisdiction. Dismissal of Claim