Complainant

Respondent

Parties

Marin Glamuzina

MCR Outsourcing Limited

Complainant

Respondent

Anonymised Parties

Representatives

Self-Represented

Warren Parkes                           Warren Parkes Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00062130-001

11/03/2024

CA-00062130-001

This matter came before the Workplace Relations Commission dated 11/03/2024 as a complaint submitted under section 21 of the Equal Status act, 2000.  The aforesaid complaint was referred to me for investigation.  A hearing for that purpose was scheduled to take place on 02/09/2024.

The Complainant submits he has been discriminated against by the Respondent (his former employer) by reason of race and that the Respondent has treated him unlawfully by discriminating against him in harassing him.  The Complainant at all material times was employed as a Security Officer.  The Complainant submits he worked a 72-hour week for which he received €1000.80 gross per week.    

The Respondent company is a provider of security services to healthcare, public, commercial and construction industries.  The Complainant was employed with the Respondent from 01/09/2023 until 14/03/2024. 

The Complainant relies on the Equal Status Acts to ground his complaint against the Respondent who is his former employer.  The WRC, upon receipt of the Complainant’s complaint, alerted the Complainant to the difference between the Equal Status Act and the Employment Equality Acts by correspondence of 26 March 2024 as follows:

“Discrimination at work is covered by the Employment Equality Acts. If you are an employee, or are trying to get a job, and you feel you are discriminated against unlawfully, on any of the prohibited grounds, you can make a claim under these Acts. The legislation covers all aspects of work including recruitment and promotion, the right to equal pay, conditions of employment, training and/or experience.

Discrimination outside the workplace is covered by the Equal Status Acts. The legislation mainly covers access to goods and services. If you are trying to access goods or services and you feel you are discriminated against unlawfully on any of the prohibited grounds, you can make a claim under these Acts. It includes access to facilities for banking, entertainment, cultural activities or transport, professional or trade services, health services, access to education and accommodation (including HAP). It does not apply to access to a licensed premises.

To enable me to process your complaint, please clarify under which legislation you wish to pursue your complaint.” [emphasis added]

I note the Complainant did not acknowledge or respond to the request for clarification regarding under which legislation he wished to pursue his complaint. 

Further to the hearing that took place on 02/09/2024 I wrote to both parties on 16/09/2024 as follows:

“I write to the parties further to the hearing that took place on 02/09/2024.

At the outset it is important that I document the following as it outlines my role and my responsibility to both parties at section 41(5) of the Workplace Relations Act, 2015:

“(5) (a) An adjudication officer to whom a complaint or dispute is referred under this section shall—

(i) inquire into the complaint or dispute,

(ii) give the parties to the complaint or dispute an opportunity to—

(I) be heard by the adjudication officer, and

(II) present to the adjudication officer any evidence relevant to the complaint or dispute,

(iii) make a decision in relation to the complaint or dispute in accordance with the relevant redress provision, and (iv) give the parties to the complaint or dispute a copy of that decision in writing.”

The Respondent on 02/09/2024 raised a preliminary objection on the basis that the Complainant had impleaded the incorrect legislation in his complaint form when he filed his complaint with the WRC. 

I note this matter had been raised with the Complainant by the WRC in correspondence of 26/03/2024 as follows:

“The complaint application has undergone validation checks and the following issues have arisen.  The complaint cannot be further processed until these issues have been addressed/ clarified in writing. Your original complaint and any associated documentation are attached.

·        On what date did you notify the person/service provider using the ES1 form?

·        Please attach a copy of the ES1 form and proof of postage.

Discrimination at work is covered by the Employment Equality Acts. If you are an employee, or are trying to get a job, and you feel you are discriminated against unlawfully, on any of the prohibited grounds, you can make a claim under these Acts. The legislation covers all aspects of work including recruitment and promotion, the right to equal pay, conditions of employment, training and/or experience.

Discrimination outside the workplace is covered by the Equal Status Acts. The legislation mainly covers access to goods and services. If you are trying to access goods or services and you feel you are discriminated against unlawfully on any of the prohibited grounds, you can make a claim under these Acts. It includes access to facilities for banking, entertainment, cultural activities or transport, professional or trade services, health services, access to education and accommodation (including HAP). It does not apply to access to a licensed premises.

To enable me to process your complaint, please clarify under which legislation you wish to pursue your complaint.”

I note the distinction between the two pieces of legislation is clearly highlighted to the Complainant.

I note matters raised by the Respondent by email to the WRC of 29/04/2024 as follows:

“We note that the Complainant has now engaged in submitting piecemeal correspondence to your office and he has indicated that this forms part of his submission. We would be obliged if you could confirm with the Complainant that anything he is relying on by way of submission, should be in a collated format or booklet – as is usually the case – rather than the piecemeal approach now being engaged. It is extremely difficult, from the Respondent’s perspective and that of the adjudicator, to determine what the Complaint is going to rely upon i.e., if he continues to submit materials in the present manner. We appreciate your assistance in this matter.”

The Respondent representative objected by way of preliminary objection at the outset of hearing that Complainant’s claim was misconstrued and accordingly should not be heard by me as I did not have jurisdiction to do so.   

On the day of hearing I attempted to engage with the Complainant so that I might elicit a response from him on the preliminary objection.  However, the Complainant persisted in moving paper documents across the table towards the Respondent whilst speaking over me as I tried to engage meaningfully with him on the preliminary objection. 

The Complainant raised his mobile phone to indicate that he intended immediately calling one of the national newspapers and the national broadcasting service and I was unable to continue or to hear his submission on the preliminary objection if indeed he was willing to provide me with one as he simply would not engage with me. 

Having afforded the Complainant with opportunities to hear from him on the preliminary objection and taking into account the failure to make any progress in the proceedings I adjourned the hearing. 

Notwithstanding, as part of my statutory duty as set out above to inquire into this complaint I now invite the parties to address me on the issue of thepreliminary objection in the interest of progressing this matter.   In so doing I respectfully request the parties to consider the following caselaw.

Louth/Meath ETB v Equality Tribunal [2016] IESC 40:

‘It goes without saying, first, that the duty of the Equality Officer is both statutory, and, ultimately, delimited by constitutional considerations. As part of fair procedures, it is necessary that all parties be aware, in a timely way, of the case which they must meet. Consequently, it would be wrong, were a situation to evolve in this investigation, where one or other of the parties was under a misapprehension of precisely the range of legitimate inquiry. Second, it is hardly necessary to reiterate that it is not possible for any tribunal, upon which a particular jurisdiction has been conferred by statute, to extend or confine the boundaries of that jurisdiction by an erroneous determination of fact (see State (Attorney General) v. Durkan [1964] I.R. 279, approved in Killeen v. DPP [1998] ILRM 1). There may also be circumstances in which a tribunal, although holding jurisdiction to enter upon an investigation or inquiry, may render its decision a nullity by, for example, a denial of fair procedures.’

Galway-Mayo Institute of Technology v Employment Appeals Tribunal [2007] IEHC 210:

“It follows from the foregoing that a judicial or quasi-judicial tribunal is not entitled to invoke a statutory remedy which no one has sought and in respect of which no one is on notice. For the purpose of fulfilling the requirements of natural justice, however, I would have thought that if any such tribunal does have jurisdiction to give a remedy under a particular Act, then if this remedy is sought in an originating document, for instance by ticking a box giving a choice of remedies, or if it is orally sought to in the course of the hearing, such a tribunal is entitled to make a choice in favour of it. If that happens, parties have to be taken as being aware that in the event that a decision goes a particular way the tribunal may look to a remedy claimed. In that regard, I would regard a written claim or an oral assertion seeking a particular remedy as being sufficient for the due administration of constitutional justice provided the tribunal has jurisdiction in respect of it. If remedies are complex, and a tribunal has rules as to notice in the form of simple originating documents, then it should abide by its own procedures or consider the grant of an adjournment to a genuinely surprised party.”

I would be grateful if submissions could be filed with the WRC by close of business on Friday 04 October 2024.”    

I trust you find the foregoing informative.

Yours sincerely etc.”

Submissions on the preliminary objection raised were filed by the Respondent on 30/09/2024 which were duly copied to the Complainant.   

At time of drafting this decision the Complainant has not addressed the WRC on the matter of the preliminary objection. 

In circumstances whereby a ruling on the preliminary issue may be determinative of the entire proceedings, it will be considered in advance of the substantive matter. 

CA-00062130-001

The Complainant submits that he wants his complaint heard and made numerous attempts to enter into evidence despite being respectfully requested for his submissions in regard to having impleaded the incorrect legislation. 

The Complainant’s attention was drawn to the correspondence from the WRC set out above setting out clearly the difference between the two pieces of legislation in the expectation that this might elicit some form of response to the preliminary issue raised by the Respondent.   

CA-00062130-001

At hearing

The Respondent representative submits the claim is misconstrued.  The Respondent representative submits categorically that the Respondent is not answerable to the Complainant’s claims under the Equal Status Acts.  The Respondent representative submits there was no consent forthcoming to “morph the complaint into an employment equality complaint” and remained steadfast in that position. 

As per written submission

The Complainant was employed as Security Operative (SO) in the Respondent’s business from 5 September 2023 to 20 March 2024.

The Complainant initially worked for the Respondent in Stillorgan Shopping Centre. On 24 November 2023 the Complainant started work in St James’s Hospital from 24 November 2023 to 29 February 2024. On 5 March 2024 the Respondent’s Mr Geoffrey Doyle (Operations Director) met with the Complainant and offered him a position in Nutgrove Shopping Centre, Rathfarnham, Dublin 14, which he accepted. On 20 March 2024, on his first day and of his own volition, the Complainant walked off site and didn’t return to work for the Respondent.

The Complainant filed his claim with the WRC on 11 March 2024. The specific complaint filed is an Equal Status Act complaint, described as follows: “I have been discriminated against by a person organisation/company who provides goods, services or facilities”. We also note the fact the WRC took the positive step of writing to the Complainant on 26 March 2024 and requested that he: “clarify under which legislation [he wished] to pursue [his] complaint”. Despite the clear language and simplified explanation of what differentiates an Equal Status Act complainant from an Employment Equality Act complaint and also a request for clarification from the Complainant “under which legislation he wished to pursue [his] complaint”, it appears he did not revert to the WRC with any form of clarification. The relevant part of that correspondence sets out the following:

“Discrimination at work is covered by the Employment Equality Acts. If you are an employee, or are trying to get a job, and you feel you are discriminated against unlawfully, on any of the prohibited grounds, you can make a claim under these Acts. The legislation covers all aspects of work including recruitment and promotion, the right to equal pay, conditions of employment, training and/or experience.

Discrimination outside the workplace is covered by the Equal Status Acts. The legislation mainly covers access to goods and services. If you are trying to access goods or services and you feel you are discriminated against unlawfully on any of the prohibited grounds, you can make a claim under these Acts. It includes access to facilities for banking, entertainment, cultural activities or transport, professional or trade services, health services, access to education and accommodation (including HAP). It does not apply to access to a licensed premises.

To enable me to process your complaint, please clarify under which legislation you wish to pursue your complaint.”

Furthermore, after the aforementioned 26 March 2024 correspondence was sent from the WRC to the Complainant, the Respondent subsequently received Equal Status Acts, 2000-2015 Notification and Reply to Notification Forms: Form ES.1 together with Form ES.2 from the Complainant. Those Forms are dated 2 and 3 April 2024 respectively.

Therefore, it is clear that the Complainant fully engaged the provisions of the Equal Status Acts, 2000-2015 and furthermore, he continued to do so after he was given unequivocal advice in respect of the type of claim/s that the Equal Status Acts encompassed, and also after an explanation was provided to him regarding the type of claim that the Employment Equality Acts applied to - as per above.

Additionally, after this time and prior to the hearing, the Complainant continued to engage in correspondence with the WRC submitting piecemeal information to it.

We respectfully refer to the below case: Galway-Mayo Institute of Technology v Employment Appeals Tribunal [2007] IEHC 210:

“[A] judicial or quasi-judicial tribunal is not entitled to invoke a statutory remedy which no one has sought and in respect of which no one is on notice. For the purpose of fulfilling the requirements of natural justice, however, I would have thought that if any such tribunal does have jurisdiction to give a remedy under a particular Act, then if this remedy is sought in an originating document, for instance by ticking a box giving a choice of remedies, or if it is orally sought to in the course of the hearing, such a tribunal is entitled to make a choice in favour of it. If that happens, parties have to be taken as being aware that in the event that a decision goes a particular way the tribunal may look to a remedy claimed. In that regard, I would regard a written claim or an oral assertion seeking a particular remedy as being sufficient for the due administration of constitutional justice provided the tribunal has jurisdiction in respect of it. If remedies are complex, and a tribunal has rules as to notice in the form of simple originating documents, then it should abide by its own procedures or consider the grant of an adjournment to a genuinely surprised party.”

In the instant circumstances, it follows that the Adjudicator is entitled to hear the specific claim filed, but may only do so by applying the provisions (and remedies) of the Equal Status Act. This arises in circumstances where the Complainant has submitted and moreover persisted with his claim/s pursuant to the Equal Status Act. Clearly, therefore, the Adjudicator can only invoke a statutory remedy available/pursuant to that Act – if any such remedy is applicable and the claim is well founded. The Complainant is limited to a remedy under the Equal Status Act i.e., the claim for which the Respondent is specifically on notice. The fact that the Complainant has already been written to by the WRC (as set out above) and was explicitly put on notice of the type of claim that the Equal Status Act applies, and thereafter failed/refused or neglected to reply to the WRC but instead doubled down on his Equal Status Act claim/s and served Forms ES1 and ES2, in our respectful submission serves to legitimately deny the Complainant a remedy under any other Act. The Court’s statement in the above case that: “ticking a box giving a choice of remedies” in our respectful opinion does not countenance supplanting one Act for another Act at a hearing. That is a fundamentally different proposition and one which goes well beyond any legislative jurisdiction vested in the Adjudicator.

Additionally, in the case of Louth/Meath ETB v Equality Tribunal [2016] IESC 40 the Court stated:

“It goes without saying, first, that the duty of the Equality Officer is both statutory, and, ultimately, delimited by constitutional considerations. As part of fair procedures, it is necessary that all parties be aware, in a timely way, of the case which they must meet. Consequently, it would be wrong, were a situation to evolve in this investigation, where one or other of the parties was under a misapprehension of precisely the range of legitimate inquiry. Second, it is hardly necessary to reiterate that it is not possible for any tribunal, upon which a particular jurisdiction has been conferred by statute, to extend or confine the boundaries of that jurisdiction by an erroneous determination of fact (see State (Attorney General) v. Durkan [1964] I.R. 279, approved in Killeen v. DPP [1998] ILRM 1). There may also be circumstances in which a tribunal, although holding jurisdiction to enter upon an investigation or inquiry, may render its decision a nullity by, for example, a denial of fair procedures.”

Fair procedures must extend to the Respondent in this case and in all of the circumstances, especially where the Complainant was in receipt of correspondence from the WRC explaining the nature of the claim it could adjudicate on - either under the Equal Status Act or the Employment Equality Acts - it would be contrary to fair procedures to engage in a hearing under any Act other than the Equal Status Act, which was fully engaged by the Complainant.

We submit that the Adjudicator’s jurisdiction in this matter is limited to the Equal Status Act and the remedies available pursuant to/under that Act, but only if it is determined that the Complainant’s claim/s are well founded. We submit that the claims are such that they are not well founded and must fail.

The guidance notes for a hearing issued by the WRC in July 2021 states that in the vast majority of cases the AO will take evidence in relation to the preliminary points raised from both and then proceed to hear the substantive claims.  The use of the word “majority” is noteworthy.   

I am mindful of the case of Guerin v. SR Technics Ireland Limited [UD969/2009] where the Employment Appeals Tribunal was asked to make a decision on a preliminary matter before moving to hearing the substantive case and given the significant preliminary point raised the Tribunal moved to hear the preliminary matter first and reach a decision on same. 

Furthermore, in the case of Bus Eireann v. SIPTU [PTD8/2004] the Labour Court indicated that a preliminary point should be determined separately from other issues arising in a case “where it could lead to considerable savings in both time and expense” and where the point was “a question of pure law where no evidence was needed and where no further information was required.”

In the case of Donal Gillespie v. Donegal Meat Processers [UD/20/135] the Labour Court dealt with the matter by expressing the view that in asking for the substantive issue and the jurisdictional issue to be heard together was “akin to asking the court to exercise its jurisdiction before it determines whether or not it has jurisdiction in the first instance.”

In Brothers of Charity (Roscommon) Ltd. v. Marian Keigher EDA1014, the Labour Court considered the determination of an issue by way of preliminary decision. The Labour Court referred to the judgments of Kenny J. in Tara Explorations and Development Co. Ltd v. Minister for Industry and Commerce [1975] IR 242; and Hardiman J. in B.T.F. v. Director of Public Prosecutions 2 ILRM 367.   In the latter case Hardiman J, found:

"It is often a difficult and delicate decision as to whether to try a particular issue as a preliminary matter. In a case where a point is raised which in and of itself and without regard to anything else may terminate the whole proceedings, clearly a strong case can be made for its trial as a preliminary issue…

Following the caselaw outlined above and particularly the case of B.T.F. v. Director of Public Prosecutions I find that there is a “strong case” for determining this matter by way of preliminary decision.

Furthermore, I am obliged at all times to consider that which constitutes the most efficient and effective use of the resources of the WRC. 

CA-00062130-001

I note the Complainant relies on the Equal Status Acts to ground his complaint against the Respondent who is his former employer.  I note the Complainant claims discrimination on the grounds of race and that the Respondent has treated him unlawfully by discriminating against him in harassing him.

The Relevant Law

Section 5 (1) of the Equal Status Act 2000 provides:-

“5.—(1) A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public.”

For completeness Section 2 (1) of the Act defines what constitutes a “service”:

“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,

but does not include pension rights (within the meaning of the Employment Equality Act, 1998) or a service or facility in relation to which that Act applies;

There is an onus on a complainant seeking redress pursuant to the Act to establish that (a) he sought to access a service of the Respondent that was available to the public generally and (b) he was discriminated against on at least one of the stated grounds of discrimination. 

I note the distinction between the two acts namely the Equal Status Acts and the Employment Equality Acts was very clearly documented to the Complainant by correspondence from the WRC of 26/03/2024.  I note the Complainant ignored said correspondence.  Accordingly, the complaint was processed as selected by the Complainant under the Equal Status Acts. 

I am satisfied the WRC placed the Complainant on notice of a problem with the legislation impleaded by him as far back as 26/03/2024 when he was invited to provide clarification on same. 

At the outset of hearing I proceeded to work my way through the WRC complaint from with the parties in order to clarify the nature of the complaint.  I attempted on numerous occasions to explain to the Complainant that I was in fact trying to explore whether it would be possible for me to amend the claim to that of an Employment Equality claim in the face of the Respondent’s unequivocal objection. 

I note the Complainant expressed frustration and anger with the progression of the preliminary argument and made no attempt to engage with it other than to threaten to contact the Irish Times and RTE news as I tried to explain to the Complainant the features and distinctions between the two pieces of legislation namely the Employment Equality Act, 1998 and the Equal Status Act, 2000.  

I note my delegated jurisdiction to hear the complainant as delegated to me derives from the Equal Status Acts.  I find that I cannot now simply change direction in this case and depart from my delegated jurisdiction to a separate jurisdiction outside of the consent of the Respondent which was not forthcoming. 

I accept the Complainant clearly made a mistake in the formulation of his claim on 11/03/2024.  However, the Complainant was provided with the opportunity to correct this mistake by correspondence from the WRC on 26/03/2024 which went unanswered. 

I have regard to Mc Kechnie J in the case of Louth VEC and Equality Tribunal v Brannigan [2016] IESC 40 stating that the Tribunal cannot “freelance its inquiry”:

“It is both a trite and historical principle of law that a creature of statute must live by the statute. Its jurisdiction is found solely within the provisions of the enabling Act. It has no inherent capacity, unlike, say, that of a constitutional court. It is therefore bound by what has been conferred on it. 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 I.R. 218. It is bound by what jurisdiction it has and must act accordingly.”

I find the Complainant failed to apply due diligence to formatting the complaint he wished to make under the correct legislation and, despite being provided with the opportunity to correct same, he elected not to do so.  Furthermore, I find that the Complainant, when provided with the opportunity to address me on the Respondent’s preliminary objection from his perspective, elected not to do so.      

I have carefully inquired into the complaint and I have considered the matter under section 22 of the Acts which provides that the Director may dismiss a claim at any stage if of the opinion that it has been made in bad faith or is frivolous, vexatious or misconceived or relates to a trivial matter.

Section 22 of the Equal Status Acts provides for dismissal of claims as follows:-

“22.— The Director may dismiss a claim at any stage in the investigation if he or she is of opinion that the claim has been made in bad faith or is frivolous or vexatious, misconceived or relates to a trivial matter.”

It is widely accepted by the Courts that the terms are legal terms which can be often used interchangeably as held by the Barron J in Farley v Ireland [1997] IESC 60

“So far as the legality of matters is concerned frivolous and vexatious are legal terms. They are not pejorative in the sense or possibly in the sense that Mr. Farley may think they are. It is merely a question of saying that so far as the plaintiff is concerned if he has no reasonable chance of succeeding then the law says that it is frivolous to bring the case.

Similarly, it is a hardship on the defendant to have to take steps to defend something which cannot succeed, and the law calls that vexatious”.

The terms “frivolous or vexatious” were carefully considered by the High Court in Patrick Kelly v The Information Commissioner [2014] IEHC 479 which is instructive as to the meaning of these terms:

“As a matter of Irish law, the term “frivolous or vexatious” does not, as noted by Birmingham J. in Nowak, necessarily carry any pejorative connotations but is more concerned with the situation where the litigation (or, in this instance, application) can be described as futile, misconceived or bound to fail.”

In conclusion, based on all of the foregoing, I am satisfied that this claim as presented is misconceived.  On that basis I dismiss the complaint in accordance with section 22 of the Acts. 

CA-00062130-001

For the reasons set out above I dismiss this complaint in accordance with section 22 of the Acts.

Misconceived;