ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00042815
Parties:
| Complainant | Respondent |
Parties | Adrian Caulfield | Social Finance Foundation Microfinance Ireland |
| Complainant | Respondent |
Parties | Adrian Caulfield | Social Finance Foundation |
Representatives | self | Ronnie Neville Mason Hayes & Curran |
Complaint(s):
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000 | CA-00053280-001 | 13/10/2022 |
Date of Adjudication Hearing: 29/04/2024
Workplace Relations Commission Adjudication Officer: Brian Dalton
Procedure:
In accordance with Section 25 of the Equal Status Act, 2000following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The factual matrix of this case relates to a loan application with Microfinance Ireland that was rejected. While this latest case relates to a new loan application; the facts are similar to the previous cases referred to the Commission and to the Circuit Court. Prior to hearing the substantive case the parties were asked to raise any preliminary matters.
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Preliminary Matter(s)
Time:
The Complainant asked that the case be adjourned based on the late submission by the Respondent. The Complainant is a lay litigant; however, this complaint is linked to others made previously and so he is not a stranger to the process or the law concerning his Equal Status complaint. The complaint relates to a rejection of his loan application by the Respondent.
The Commission’s procedures state the following:
Please also note that an Adjudication Officer may decide not to allow a party to introduce documents on the day of the hearing or within 15 working days of the scheduled date of the hearing. This is to ensure fair procedures for all parties. It is entirely a matter for the Adjudication Officer whether to allow any evidence to be submitted within 15 working days of the date of the hearing.
I have decided in the first instance to allow the parties to make preliminary applications on all matters because the parties have already met and presented on the matters previously based on a refusal to approve a loan application. The Complainant argues that the matter now before me is continuing discrimination. While the Respondent stated that it cannot be as the Complainant’s previous complaints have not been upheld.
The Complainant details the follow grounds and alleges discrimination based on these grounds:
- Gender
- Civil Status
- Family Status
- Sexual Orientation
- Religion
- Age
- Disability
- Race
The Complainant argues that the Respondent has discriminated against him based on their stated objects to provide finance to those who are disadvantaged, marginalised, unemployed and the very purpose of the entity is to take a risk and not to apply standard underwriting criteria to a loan application. The scheme is supported by the European Union and requires that the organisation detail by category who they have made loans to. These categories are set down in law and this information would allow him to better ground his complaint. They have failed to do so and the Complainant requests that the Commission order the Respondent to comply with their obligations to provide such data.
The Complainant when questioned was not able to provide a fact that give rise to an inference of discrimination. At the start of the hearing the Complainant was asked if he understood that the Act required him to establish a prima facie case. The fact that his loan application was refused can only be viewed as discriminatory if that less favourable treatment was linked to a ground being relied upon. The Complainant has failed to meet the prima facie test on any ground being relied upon.
The Complainant asked that the Commission order that information be provided to him by the Respondent, so that he can establish a case. This raises a question about the threshold if any that is required before such a request should be acceded to? Some guidance on this can be drawn from the Labour Court by analogy when considering European Directives.
Obligation to produce records:
I note that in ISS Ltd the Court stated that the obligation on the Respondent employer to keep records as provided for at section 25 of the Organisation Working Time Act and the onus on the employer of proving in proceedings that this provision was complied with is subject to the Complainant adducing some facts that non-compliance has occurred:
4) Without prejudice to subsection (3), where an employer fails to keep records under subsection (1) in respect of his or her compliance with a particular provision of this [Act or the Activities of Doctors in Training Regulations] in relation to an employee, the onus of proving, in proceedings before a rights commissioner or the Labour Court, that the said provision was complied with in relation to the employee shall lie on the employer.
In ISS Limited the court stated:
The effect of s.25(4) of the Act is to shift the burden to the Respondent in cases where records in the statutory form were not maintained.
This would appear to suggest that some evidence must be adduced that tends to show that non-compliance occurred. It does not mean that the Complainant must detail all incidents of non-compliance and to support those with evidence; however, the Complainant must provide sufficient evidence that shows the Employer failed to keep records as required. If that threshold is met the evidential burden falls on the Employer to show that they were in fact compliant relating to the allegations being made against them.
The wording in the Act is specific in that it arises where an employer fails to keep records:
This suggests that the evidential burden is on the Claimant to adduce such evidence as is available to support a stateable case of non-compliance with a relevant provision of the Act. It seems to the Court that as a matter of basic fairness the Claimant should be required to do so with sufficient particularity as to allow the Respondent to know, in broad terms, the nature of the complaint and the case that they are expected to meet.
On the facts I have determined that the Respondent in this case has not been provided with sufficient particularity regarding a non-compliance with the Equal Status Act either in the actual written submission and at the hearing of the complaints. As the Complainant has provided no evidence to support his allegations; the Burden of Proof should not shift onto the Employer to produce information that in effect would become a fishing trawl so that he might be able to ground a complaint.
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.
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.
Complainant a Company/Sole Trader?
The Complainant under oath stated that he made application both as a director of a limited liability company and as a sole trader. The name of both is Working Holiday Ireland. A company cannot maintain an action under the Equal Status Acts. Can the Complainant ride two horses at the same time? That is a question I don’t need to answer as I have determined that no prima facie case has been made out by the Complainant.
The Wrong Respondent:
The Complainant has named two parties on is complaint form:
- Social Finance Foundation
- Microfinance Ireland
The Respondent stated that as the Complainant has named the wrong respondent his complaint should be dismissed for this action namely Social Finance Foundation.
The Company has been on notice of this complaint for some time and suffers no prejudice arising from the Complainant detailing a company that is linked to the Respondent. The Complainant meant that the conduct complained about related to Microfinance Ireland Limited.
I note the High Court judgement in Capital Food Emporium (Holdings) Ltd v John Walsh [2016] IEHC 725 where it was held that an application by the Respondent to dismiss the action was unsuccessful where the Respondent was at all times aware that the claim was directed against it. This case related to a complaint where the Respondent had been named as Michael Andrews t/a Clodagh McKenna Restaurants. Before the Rights Commissioner issued his decision, the Complainant wrote to change the name to Capital Food Emporium (Holdings) Ltd t/a Clodagh Mckenna Restaurants. I also note the High Court judgment O’Higgins v University College Dublin [2013] IEHC where the Complainant brought a statutory appeal against the Labour Court in a claim against University College Dublin. It was held by the court that:
“Even if the wrong party was, in fact, so named, no prejudice whatever was caused by reason of that error (if, indeed, error it be)….In these circumstances, for this Court to hold that the appeal was rendered void by reason of such a technical error would amount to a grossly disproportionate response and deprive the appellant of the substance of her constitutional right of access to the courts”
For reasons not dissimilar I find that the Respondent has suffered no prejudice, is fully aware of the complaints made against them and has been on full notice of the date time and hearing of this matter and is in attendance. To find against the Complainant on such a technical error would be unjust.
However, nothing turns on this arising from the fact that the Complainant has not made out a prima facie case.
Dismiss:
I find that the Complainant has not made out a prima facie case on any ground relied upon. Section 22 of the Act 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 find that the Complainant has failed to make out a prima facie case. He has detailed no facts that could reach the required evidential threshold where it could be concluded that a causal connection existed between the alleged offending conduct of being turned down for a loan and the alleged ground of discrimination.
The Complainant does believe that he has been treated unfairly and that the organisation is not fulfilling what its objects state it is charged to do. However, when he brings his complaint under the Equal Status Act, he is required to make out a prima facie case and there is an absolute dearth of facts concerning his blanket ticking of 8 grounds and failing to establish any fact that could give rise to an inference of discrimination.
I find that the Respondent has not engaged in prohibited conduct.
Summary of Complainant’s Case:
See preliminary matter |
Summary of Respondent’s Case:
See preliminary matter |
Findings and Conclusions:
See preliminary matter |
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.
Dismiss: I find that the Complainant has not made out a prima facie case on any ground relied upon. Section 22 of the Act 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 find that the Complainant has failed to make out a prima facie case. He has detailed no facts that could reach the required evidential threshold where it could be concluded that a causal connection existed between the alleged offending conduct of being turned down for a loan and the alleged ground of discrimination. The Complainant does believe that he has been treated unfairly and that the organisation is not fulfilling what its objects state it is charged to do. However, when he brings his complaint under the Equal Status Act, he is required to make out a prima facie case and there is an absolute dearth of facts concerning his blanket ticking of 8 grounds and failing to establish any fact that could give rise to an inference of discrimination based on a causal connection. I find that the Respondent has not engaged in prohibited conduct and dismiss his complaints. |
Dated: 02nd of May 2024
Workplace Relations Commission Adjudication Officer: Brian Dalton
Key Words:
Misconceived-No Prima Facie Case. |