ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00012093

Parties:

Complaint(s):

Date of Adjudication Hearing:  02/02/2023

Workplace Relations Commission Adjudication Officer:  Brian Dalton

Procedure:

In accordance with Section 25 of the Equal Status Act, 2000 (the Act), following the referral of the complaint to me by the Director General, I inquired into the complaints, and I firstly considered as a preliminary matter if I have jurisdiction to hear the complaints and if the claim is properly before me for investigation pursuant to the powers to investigate under the Act. This review was made on the papers before me.

Background:

Preliminary Matter

These complaints are made against the Respondent Law Firm Arthur Cox who attended at the Workplace Relations Commission on the 18th of September 2017 and their client Daft. These complaints arise out of that hearing, in so far as the conduct of the Respondent Representative and the Respondent themselves are alleged to be new grounds of discrimination.

 These complaints arise from the Complainant taking issue with how the Respondent solicitor conducted cross examination at the hearing. The complaints 1-2 relate to the conduct of the Respondent’s lawyer and 3-11 to exchanges between the parties during the adjudication hearing about whether a valid notification of an equal status complaint to the Respondent was served as required under the Equal Status Act 2000 as amended. The querying of that requirement by the Respondent is alleged to be another example of discriminatory conduct by the Respondent.

Complaint 12 reference CA-00016250 relates to an alleged failure by the Respondent to reply to correspondence.

All of these complaints are inextricably linked apart from CA-00016250, which has insufficient factual detail to ground the complaint to the hearing of the 18th of September 2017 and as a stand-alone matter is absent of fact other than it relates to a failure of the respondent to reply to him.

Jurisdiction

The Complainant states that he has been discriminated against by a person, organisation, company who provides goods, services, or facilities. Specifically, he brings a complaint against a Respondent Law Firm arising from being cross examined by a partner of the firm during the investigation of a complaint that he had brought. This complaint is misconceived as the Respondent solicitor was not providing a service to the Complainant nor is he under any obligation to provide a service to him. The matter at issue relates to the Complainant being offended with how he was cross examined during an adjudication hearing. Cross examination during a hearing and investigation of a dispute is not a service as defined in the Act.

At section 2 of the Act a service is defined as:

“ service” means a service or facility of any nature which is available to the public generally or a section of the public, and without prejudice to the generality of the foregoing, includes—

( a) access to and the use of any place,

( b) facilities for—

(i) banking, insurance, grants, loans, credit or financing,

(ii) entertainment, recreation or refreshment,

(iii) cultural activities, or

(iv) transport or travel,

And section 14 of the Act states:

14.—(1) Nothing in this Act shall be construed as prohibiting—

( a) the taking of any action that is required by or under—

(i) any enactment or order of a court,

 Cross examination is a fundamental right of a Respondent so that they can defend a claim brought under the Equal Status Act and is a bedrock of the administration of justice. While it is arguable whether a Respondent advocate possesses absolute immunity; he most definitely is immune from suit for defending his client’s interests without fear or favour. Also, the Act cannot be used in this way, as the matters complained of are not services. This claim is made in error or on a misunderstanding of the Act and it is not capable of achieving its desired outcome. No redress exists under the Act against the firm for properly defending their client’s interest. A party who takes exception to how a hearing is conducted has other forms of redress; however, it does not exist in the Act now being relied upon. These claims are vexatious and misconceived and therefore I dismiss them. There is no basis to ground a claim against the firm based on a dislike of being cross examined during an adjudication hearing and then attaching liability to Daft who is the Respondent for retaining a legal firm to represent them.

Section 22 of the Equal Status Act 2000 as amended provides for a claim to be dismissed if it is found to be misconceived and or vexatious. As I have formed the opinion that this claim concerning the conduct of the  Respondent Lawyer is misconceived and vexatious; I dismiss the following complaints as the matters complained of occurred during an adjudication hearing where the lawyer complained about has every right to cross examine. The conduct being referred to this Commission are matters that pertain to the administration of justice. The allegations of malfeasance during an adjudication hearing cannot revert to an Adjudication Officer to make judgement on the alleged misconduct of a lawyer during a hearing. There is no statutory power to do so as the matters complained about are not services as defined under the Equal Status Act. The complaints made against the lawyer are as follows:

1. CA-00016237: ‘counsellor of the respondent mocked my financial situation during a hearing on the 18th of September 2017 at WRC’
2. CA-00016238: ‘I am offended that the counsellor of the respondent mocked my ill health during a hearing on the 18th of September 2017 at WRC

Section 22 states:

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

I have formed the opinion that the complaints are misconceived and vexatious and therefore dismiss these two complaints.

The following complaints 3-11 relate to an exchange of correspondence between the parties primarily relating to the requirement to serve notice on the Respondent as set out under the Act. An exchange of correspondence between the parties is the normal currency of litigation and does not constitute a service as defined in the Equal Status Act 2000 as amended.

Before a party can bring an Equal Status Complaint they are required to:

Section 21

(2) Before seeking redress under this section, the complainant—

(a) shall, within 2 months after the prohibited conducted is alleged to have occurred, or, where more than one incident of prohibited conduct is alleged to have occurred, within 2 months after the last such occurrence, notify the respondent in writing of—

(i) the nature of the allegation,

(ii) the complainant’s intention, if not satisfied with the respondent’s response to the allegation, to seek redress under this Act ,

And section 14 of the Act states:

(1) Nothing in this Act shall be construed as prohibiting—

(a) the taking of any action that is required by or under—

(i) any enactment or order of a court,

The ES. 1 form or a written notification is the notice sent to the Respondent about the alleged prohibited conduct and is a condition to be met before the complaint is referred to the Commission.

The Respondent wrote to the Workplace Relations Commission to state that they had not received notice and in turn that correspondence would be copied to the complainant.

The exchange of such a document between the parties’ forms part of the investigation of the complaint. The investigation of a complaint is not a service as defined at section 2 of the Equal Status Act 2000. Section 2 of the Act states:

“ service” means a service or facility of any nature which is available to the public generally or a section of the public, and without prejudice to the generality of the foregoing, includes—

(a) access to and the use of any place,

(b) facilities for—

(i) banking, insurance, grants, loans, credit or financing,

(ii) entertainment, recreation or refreshment,

(iii) cultural activities, or

(iv) transport or travel,

(c) a service or facility provided by a club (whether or not it is a club holding a certificate of registration under the Registration of Clubs Acts, 1904 to 1999) which is available to the public generally or a section of the public, whether on payment or without payment, and

(d) a professional or trade service,

The exchange of correspondence between the parties arising from a dispute is a requirement of a fair and transparent process. The Complainant takes exception to the Respondent stating that they had not received the required notification. Such an exchange of correspondence is the everyday currency of legal litigation. It does not constitute a service as defined under the Equal Status Act as amended.

The Equal Status Act does not provide the Complainant with a line of attack against the Respondent in so far as the matters complained of relate to the proper and permissible defence of a claim. To hold that proposition would be absurd. The Complainant cannot succeed in his claim as either in error or because of a misunderstanding that the Equal Status Act provides a way to bring claims against a defending party based on dislike of what they have written or against the Workplace Relations Commission because they copied him with the Respondent’s correspondence.

 Section 22 provides as follows:

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

I have formed the opinion for the reasons detailed that the following complaints are vexatious and misconceived and dismiss these complaints:

CA-00016239: ‘During a hearing on 18th/09/2017 at WRC, Daft Media Limited failed to provide clarifications on its management failure and poor customer service to reply to my notification which was received in March 2016’

CA-00016240: ‘ I am offended that the respond did not respond to my “Equal Status Acts 2000-2015 Notification which was received on the 24th March 2016’

CA-00016241: ‘I am offended that the respond did not respond to my “Equal Status Acts 2000-2015 Notification” which was received on 11th March 2016 …During a hearing on 18/09/2017 at WRC, Daft Media Limited failed to provide

CA-00016242:’I am offended that the respond did not respond to my “Equal Status Acts 2000-2015 Notification received on the 26th April 2016…”

CA-00016243: ‘ I am offended that the respond did not respond to my “Equal Status Acts which was received on the 4th April 2016….During a hearing on 18/09/2017 at WRC…’

CA-00016244: ‘I am offended that the respond did not respond to my “Equal Status Acts…Notification which was received on 24th March 2016. During a hearing at the WRC on 18/09/2017…”

The final complaint:

CA-00016250: ‘I am offended that the respond failed to respond to my communication dated 18/08/2017”

 This complaint also refers to a failure to respond to the Complainant’s correspondence where he alleges that he did serve notice. Having regard to the fact that this also was in connection to his complaints against Daft and relate to an adjudication hearing where such allegations are made and heard; the Complainant’s grievance that it was not properly addressed cannot be recycled and form a new complaint for a different Adjudicator to determine that matter.

The exchange of correspondence in this case solely arises from the Complainant making a complaint against the Respondent; it does not arise from the provision of a service and therefore the Equal Status Act provides no redress and the claim being made is not capable of achieving its desired outcome. As I have formed that opinion and having regard to section 22 of the Act that states:

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.

I determine that the complaint CA-00016250 is vexatious and misconceived because the matter complained about arises in the context of litigation where there is no nexus between the Complainant and the Respondent that could be a service and could not be defined as a service as defined under the Act; therefore, as I have formed the opinion that the claim is vexatious and misconceived, I dismiss the complaint CA-00016250.

 Before a party can bring an Equal Status Complaint they are required to:

Section 21

(2) Before seeking redress under this section the complainant—

(a) shall, within 2 months after the prohibited conducted is alleged to have occurred, or, where more than one incident of prohibited conduct is alleged to have occurred, within 2 months after the last such occurrence, notify the respondent in writing of—

(i) the nature of the allegation,

(ii) the complainant’s intention, if not satisfied with the respondent’s response to the allegation, to seek redress under this Act ,

And section 14 of the Act states:

(1) Nothing in this Act shall be construed as prohibiting—

(a) the taking of any action that is required by or under—

(i) any enactment or order of a court,

The ES. 1 form is the notice sent to the Respondent and is required as evidence, so that section 21 is satisfied.

The Respondent wrote to the Workplace Relations Commission to state that they had not received notice and in turn that correspondence would be copied to the complainant.

The exchange of such a document between the parties’ forms part of the investigation of the complaint. The investigation of a complaint is not a service as defined at section 2 of the Equal Status Act 2000. Section 2 of the Act states:

“ service” means a service or facility of any nature which is available to the public generally or a section of the public, and without prejudice to the generality of the foregoing, includes—

(a) access to and the use of any place,

(b) facilities for—

(i) banking, insurance, grants, loans, credit or financing,

(ii) entertainment, recreation or refreshment,

(iii) cultural activities, or

(iv) transport or travel,

(c) a service or facility provided by a club (whether or not it is a club holding a certificate of registration under the Registration of Clubs Acts, 1904 to 1999) which is available to the public generally or a section of the public, whether on payment or without payment, and

(d) a professional or trade service,

The exchange of correspondence between the parties arising from a dispute is a requirement of a fair and transparent process. The Complainant takes exception to the Respondent stating that they had not received the required notification. Such an exchange of correspondence is the everyday currency of legal litigation. It does not constitute a service as defined under the Equal Status Act as amended.

The Equal Status Act does not provide the Complainant with a line of attack against the Respondent in so far as the matters complained of relate to the proper and permissible defence of a claim. To hold that proposition would be absurd. The Complainant cannot succeed in his claim as either in error or because of a misunderstanding that the Equal Status Act provides a way to bring claims against a defending party based on dislike of what they have written or against the Workplace Relations Commission because they copied him with the Respondent’s correspondence.

 Section 22 provides as follows:

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

I have formed the opinion for the reasons detailed that the following complaints are vexatious and misconceived and dismiss these complaints:

CA-00016239: ‘During a hearing on 18th/09/2017 at WRC, Daft Media Limited failed to provide clarifications on its management failure and poor customer service to reply to my notification which was received in March 2016’

CA-00016240: ‘ I am offended that the respond did not respond to my “Equal Status Acts 2000-2015 Notification which was received on the 24th March 2016’

CA-00016241: ‘I am offended that the respond did not respond to my “Equal Status Acts 2000-2015 Notification” which was received on 11th March 2016 …During a hearing on 18/09/2017 at WRC, Daft Media Limited failed to provide

CA-00016242:’I am offended that the respond did not respond to my “Equal Status Acts 2000-2015 Notification received on the 26th of April 2016…”

CA-00016243: ‘ I am offended that the respond did not respond to my “Equal Status Acts which was received on the 4th April 2016….During a hearing on 18/09/2017 at WRC…’

CA-00016244: ‘I am offended that the respond did not respond to my “Equal Status Acts…Notification which was received on 24th March 2016. During a hearing at the WRC on 18/09/2017…”

The final complaint:

CA-00016250: ‘I am offended that the respond failed to respond to my communication dated 18/08/2017”

 This complaint also refers to a failure to respond to the Complainant’s correspondence where he alleges that he did serve notice. Having regard to the fact that this also was in connection to his complaints against Daft and relate to an adjudication hearing where such allegations are made; the claims then are adjudicated upon and do not constitute new equal status claims.

The exchange of correspondence in this case solely arises from the Complainant making a complaint against the Respondent and it does not arise from the provision of a service and therefore the Equal Status Act provides no redress and the claim being made is not capable of achieving its desired outcome. As I have formed that opinion and having regard to section 22 of the Act that states:

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.

I determine that the complaint CA-00016250 is vexatious and misconceived because the matter complained about arises in the context of litigation and that cannot be defined as a service as defined under the Act; therefore, as I have formed the opinion that the claim is vexatious and misconceived, I dismiss the complaint CA-00016250.

 Section 14 specifically precludes claims that ‘nothing in this act shall be construed as prohibiting that taking of any action that is required by or under any enactment or order of court’. The Complainant has no cause of action against the Respondent as what he complains about related to the right to defend and the matters he now raises were properly before an Adjudicator for determination. His objection to the how a lawyer puts questions to him and the Respondent’s denial that notice of his intent to make a complaint was served, do not form new actions. They do not constitute a service as defined in the Act. The matters complained about arise out of the right to defend under the Equal Status Act. That right often will give rise to a denial of the allegations made and the requirement that statutory notification is complied with. As I have formed the opinion that the complaints are misconceived and vexatious, I dismiss all the claims.

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. However, section 22 of the Act provides that a complaint may be dismissed at any time if an opinion is formed that the claim is misconceived

Dated:   25th March 2024

Workplace Relations Commission Adjudication Officer:  Brian Dalton

Key Words: