Complainant

Respondent

Parties

LendRB  Limited

Enterprise Ireland

Representatives

  Self

Christina Moran A&L Goodbody. Niamh McGowan BL

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00057480-001

23/06/2023

This complaint should be read in conjunction with ADJ 44294

LendRB was never called to a hearing, so LendRB doesn’t know why a decision issued against it. If it is the case that LendRB can’t now proceed because of the issued decision against it, then there are three other cases to be heard, Mark Keenan, Robert Yorke and Michael O’ Reilly. Those three individuals would like to have their cases heard.

The complaint ADJ 46631 is Res Judicata. The complaint has already been heard and a decision under ADJ 44294 has issues. The Complainant in those circumstances is barred from bringing the matter before the WRC for adjudication again.

The preliminary issue to be determined, is whether or not this matter is Res Judicata.

On the 07.07.2023, ADJ 44294 was heard and a decision issued on the 05.09.2023. That decision was as follows:

“Mr. Keenan from the outset refused to engage in the hearing process and when asked a question replied by reading out a prepared statement that stated “I have provided a medical cert that states I rest for fifteen days. I will not be participating today and I a looking for a postponement. Could all future correspondence etc be made to LenderB as stated meant and assumed initially”. He read the statement out three or four times refusing to say anything other than what was in the statement.

I note from the case file that Mr. Keenan made an application to the WRC for a postponement to the WRC on the 29th June. That application was refused but he was informed that he could make an application, to me, for a postponement on the day of the hearing. I urged him on numerous occasions to make a further application for a postponement, but he refused, instead opting to read out his statement. It wasn’t until Ms. McGowan BL made an application to have the proceedings struck out for want of prosecution that Mr. Keenan decided to engage, partially.

He outlined that he was in a motorbike accident approximately “5 or 8 days ago”. He submitted two medical certificates both dated the 28 June 2023. One signed by Dr. Amornchat Sujiratana and the other by Dr. Chawanvuth Termtanum. Only Dr. Termtanum’s certificate stated that Mr. Keenan should rest for 15 days. That section is left blank on Dr. Sujiratana’s certificate. I note that the accident occurred on the 28th June, ten days prior to the hearing. The Certificates state that Mr. Keenan sustained a “lacerated wound to right knee, with multiple abrasion wound at both arms, right leg and foot”. Mr. Keenan was not admitted to hospital. The medical certificate states that he was given medication. I do not know what that was and Mr. Keenan refused to tell me stating “that is none of your business, who do you think you are asking me that question, I am serious” When Mr. Keenan was told that I would proceed to hear the preliminary application only and we could deal with the substantive matter, if necessary, on another day he said in a raised voice “ that is a disgraceful decision”. He then shouted “it shouldn’t be Mark Keenan against Enterprise Ireland at all, it should be LenderB. It shouldn’t be Mark Keenan, I shouldn’t be here” Mr. Keenan was asked if he was certain about that and he said he was. He again objected to the matter proceeding stating that there were others who should be on the remote hearing, and they were not. The Respondent then consented to LendRB being the Complainant. The original complaint form did lead to some confusion as to who the Complainant was. Mr. Keenan named both himself and LendRB as the complainant. It is clear however from the voluminous correspondence on the file that it was always intended that LendRB be the Complainant. I informed Mr. Keenan that as the Respondent was consenting to the LendRB being the complainant and I was not satisfied that he was unfit to proceed, we would proceed on that basis. It was explained to Mr. Keenan that went assessing whether a postponement should be granted an Adjudication officer had to not only assess his situation and supporting documentation, but also had to balance that against the inconvenience and expense the Respondent would be put to if the application was granted. Based on the Mr. Keenan’s medical certificates, that did not state he was “unfit for work” but merely that he should “rest”, together with his refusal to disclose if he was prescribed any medication/s that might render it difficult to proceed with the preliminary hearing and his obstinate and obstructive approach to both me as Adjudicator and to Respondent, I decided to hear the preliminary application only.

Mr. Keenan then left the hearing and did not return. I proceeded to hearing the preliminary application, of which Mr. Keenan the CFO shareholder and representative of LendRB limited was on notice.  I will deal with the preliminary application below. Before I do however it is worth noting that both before and after the hearing, Mr Keenan bombarded the WRC and me as Adjudicator with emails that could only be described as disrespectful, offensive and completely inappropriate. A request was made by the WRC to desist but that request was ignored. In the interest of fairness and transparency I state that nothing that was sent to me, or the WRC post hearing has been taken into consideration when making my decision on the preliminary application in this matter.

Preliminary Application.

The Complainant is a Limited Liability Company. The Complaint was actually brought under the Employment Equality Act however it was everyone’s understanding that the compliant was actually under the Equal Status Act. Section 3(1) of the Equal Status Act provides that:-

Discrimination shall be taken to have occurred:-

(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 sub- section (2) or, if appropriate , subsection (3B) ( in this act referred to as “discrimination grounds”) which –

(i)            exist

(ii)           existed but no longer exists,

(iii)          may exit 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 person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination, or

(c)          Where an apparently neutral provision would put a person referred to in any paragraph of Section 3(2) at a particular disadvantage compared with other persons, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary”

S3(2) As between any two persons, the discriminatory grounds (and the description of those grounds for the purposes of this Act) are:-

(a) that one is male and the other is female (the “gender ground”),

(b) that they are of different marital status (the “marital status ground”),

(c) that one has family status and the other does not or that one has a different family status from the other (the “family status ground”),

(d) that they are of different sexual orientation (the “sexual orientation ground”),

(e) that one has a different religious belief from the other, or that one has a religious belief and the other has not (the “religion ground”),

(f) subject to subsection (3), that they are of different ages (the “age ground”),

(g) that one is a person with a disability and the other either is not or is a person with a different disability (the “disability ground”),

(h) that they are of different race, colour, nationality or ethnic or national origins (the “ground of race”),

(i) that one is a member of the Traveller community and the other is not (the “Traveller community ground”),

(j) that one—

(i) has in good faith applied for any determination or redress provided for in Part II or III,

(ii) has attended as a witness before the Authority, the Director or a court in connection with any inquiry or proceedings under this Act,

(iii) has given evidence in any criminal proceedings under this Act,

(iv) has opposed by lawful means an act which is unlawful under this Act, or

(v) has given notice of an intention to take any of the actions specified in subparagraphs (i) to (iv),

      and the other has not (the “victimisation ground”).

Mr. Keenan, the CFO and representative of the Respondent made it very clear that it is the LendRB, a limited company, that is the correct Complainant in this matter. The Respondent agreed with Mr. Keenan and as is evident from the correspondence prior to the hearing, the Respondent considered the limited company to be the Complainant. The Equal Status notification to the Respondent was made in the name of LendRB Limited. Furthermore, the WRC complaint form also has the name LendRB inserted into the “if the complainant is a company or representative body” section. I also note from the submissions that the application for funding was made to the Respondent by LendRB Limited. That being the case, the issue to be determined is whether or not a limited company can be discriminated against within the meaning of the Act.

In Gloria ( Ireland’s lesbian and Gay Choir) V Cork International Choral Festival Limited DEC-S2018-78 the Adjudication officer decided “ the Equal Status Act should be interpreted as limiting complainants to individuals”

Again in A Health Worker v A health Service Provider ADJ 5333 the Adjudication Officer found that “ the complainant “ did not have locus standi to make a complaint under the Equal Status Act”

It is well established law in this jurisdiction that corporate entities, such as the Complainant, do not have locus standi to bring cases under the Equal Status Act. I therefore find that I do not have jurisdiction to investigate the complaint before me today.

Secondly, I note from the complaint form that the complaint is made pursuant to the Employment Equality Act. I can only assume this is an error as LendRB notified Enterprise Ireland of its intention to bring a complaint under the Equal Status Acts 2000 to 2015 by email dated 20 December 2022 and Mr. Keenan has never been an employee of the Respondent. Either way the matter is misconceived, and I do not have jurisdiction to investigate the complaint.

Thirdly, the complaint was filed with the WRC on the 13.02.2023. Notification of the unsuccessful application was sent by the Respondent on the 13.05.2022, Seven months later.

Section 21 (2) (a) provides that:-Before seeking redress under this Section the complainant –

(a)       Shall, within two months after the prohibited conduct is alleged to have occurred, or, where           more than one incident or prohibited conduct is alleged to have occurred, within two 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 allegations

              and

(iii)      May in that notification, with a view to assisting the complainant in deciding whether to refer the case to the Director of the Workplace Relations Commission or, as the case may be, the Circuit court, question the respondent in writing so as to obtain material information and the respondent may if the respondent so wishes, reply to any such question.

The Complainant was informed that the application to the CSF was unsuccessful on the 13.05.2022. The Complainant did not notify the Respondent in writing of the nature of the allegation until the 20.12.2022. That was more than seven months later. The act at Section 21(2)(a) uses the word “Shall” meaning that the requirement is a mandatory one. However, S21(3)(a) does provide for anextension of the two months, by a further two months if the complainant can show reasonable cause as to why the notification could not be made within the two months period. No application was made in that regard. Even if it was, the period of time taken by the Complainant to notify the respondent exceeds even the extended period of time. 

In addition the Respondent submitted that the Complainant, in respect of its claim for gender based ( and geographic) discrimination is in breach of Section 21(6) of the Act, which provides that a claim for redress in respect of prohibited conduct may not be referred after the end of the period of six months from the date of the occurrence of the prohibited conduct to which the case relates, or as the case may be the date of its most recent occurrence. The allegations of discrimination related to the decision made on the 12.04.2022 and communicated to the complainant on 13.05.2022 as a such is statute barred by virtue of both Section 21(2) and S21(6) of the Equal Status Acts.  The Complainant’s representative did not make any submissions on the point, nor did he make and application pursuant to S21 (7)(a) for and extension of time. I agree with the Respondent’s submissions and in all of the circumstances I find that the matter is statute barred.

For the reasons set out above I find that I do not have jurisdiction to investigate the within complaint.”

The doctrine of Res Judicata prohibits the reopening of issues which have already been decided between the parties by a competent Court or Tribunal.

Lord Shaw in Bradshaw v McMullan [ 1920] IR 412 stated “the overriding consideration with regards to res judicata is that there should have been a judicium. That is to say, that the merits of the identical dispute between the identical parties, on the identical subject matter, and on the same media should have been settled by judgement. The judicial mind should have been applied to it. This is the principle, familiar and fundamental.”

“The doctrine will apply not only to a Court of competent jurisdiction but also to a tribunal exercising a judicial function with jurisdiction to enter upon the adjudication and to make the order or declaration sought”O’ Driscoll -v- Dunne [2015] IEHC 100

I am fully satisfied that the WRC meets the criteria set out in O’ Driscoll v-v Dunne. I am further satisfied that the claim heard by me in July 2023 is identical to the claim before me today. The matter was heard in full, and the Complainant was given every opportunity to air the complaint. Following the hearing a reasoned decision issued. The subject matter of the within claim is identical, the parties are identical, and the forum is identical.  I can find no distinguishing fact that could allow me to adjudicate on this complaint again.   Therefore, the complaint fails.

The Complaint fails.

Res Judicata.