DECISION NO: DEC-E/2012/128
File No: EE/2009/471
Date of issue: 5 October, 2012
Headnotes: Employment Equality Acts 1998- 2008 - sections 6, 8and 77A - gender - incorrect respondent named - frivolous and vexatious.
1. DISPUTE AND BACKGROUND
1.1 The complainant (Mr. James Gardiner) referred a complaint to the Equality Tribunal on 13 July, 2009 alleging that the respondent (Mr. Ashot Arutunyan) had dismissed him in circumstances amounting to discrimination on grounds of gender, in terms of section 6(2) of the Employment Equality Acts, 1998 - 2008 and contrary to section 8 of those Acts. In accordance with its standard practice the Tribunal copied the referral form to the respondent at the address provided on that form. The complainant filed a submission with the Tribunal on 7 January, 2010 setting out more comprehensive details of his complaint and this was copied to the respondent on 18 January, 2010 at the address provided on the referral form. This correspondence was returned to the Tribunal marked "gone away" on 2 February, 2010. Despite efforts by the complainant he was unable to furnish the Tribunal with any alternative postal details for the respondent.
1.2 In accordance with his powers under the Acts the Director delegated the complaint to Mr. Stephen Bonnlander, Equality Officer, for investigation and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. Mr. Bonnlander wrote to the parties on 2 February, 2012 advising of the Hearing arrangements on the complaint. The letter to the respondent was sent to the only address on file - the address on the original referral form. This correspondence was returned to the Tribunal several days later marked "not known at this address". The complainant contacted the Tribunal by telephone in late February, 2012 and advised that he understood the respondent had other business interests in the locality. The Equality Officer wrote to the complainant on 2 March, 2012 seeking up to date postal details for the respondent. Following a number of reminders the complainant wrote to the Equality Officer advising that he was unable to find alternative postal details for the respondent. The Equality Officer rescheduled the Hearing on the complaint for 22 June, 2012 at the Tribunal's Offices in Dublin.
1.3 The complainant attended at the Hearing on 22 June, 2012 but the respondent did not. Shortly after the Hearing concluded and before the Equality Officer had issued his Decision, the complainant furnished the Equality Officer with alternative contact details for the respondent. The Equality Officer decided, in the light of this new information, that natural justice required the respondent should be notified of the existence of the complaint and that the matter should be re-investigated by another Equality Officer. He therefore decided to recuse himself from the complaint and notified the complainant of this decision by letter dated 11 July, 2012.
1.4 In accordance with his powers under the Acts the Director delegated the complaint to the undersigned - Vivian Jackson, Equality Officer, for investigation, decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. My investigation of the complaint commenced on 19 July, 2012 - the date the complaint was delegated to me. On examination of the papers on file following delegation of the complaint to me, some of which were furnished at, or subsequent to, the Hearing on 22 June, 2012 I formed the opinion that a question arose as to whether or not the complainant had named the correct respondent on the referral form. I wrote to the complainant on 30 July, 2012 (i) advising that the complaint had been delegated to me, (ii) setting out the situation as it appeared from the papers on file, (iii) drawing his attention to Section 77A of the Employment Equality Acts, 1998-2008 and (iv) seeking any comments he had on the matter by a certain date and advising that if no response was received by that date I would proceed to make a decision on the matter without any further communication with him. In accordance with the standard practice of the Tribunal this letter, along with the complainant's referral form and submission, were copied to the respondent at the most recent address provided by the complainant.
1.5 The Tribunal received a letter on 20 August, 2012 on behalf of the complainant (the complainant was abroad working for the summer months) expressing his shock at the situation and seeking clarification of what options were available to him. I replied on the same day (i) confirming that the complaint remained active but reiterating the position that a question had arisen as to whether or not the correct respondent had been named, (ii) emphasising that my investigation was a new one - with no connection to Mr. Bonnlander's investigation - and consequently I had to be satisfied that there was a valid complaint before the Tribunal for investigation and (iii) requesting that the complainant file any further comments or documents he considered relevant to the matter at hand by Friday 7 September, 2012, reiterating that if no response was received by that date I would proceed to make a decision on the matter without any further communication with him. The complainant did not comply with the deadline set and made no other contact with the Tribunal during that time or to date.
2. CONCLUSIONS OF EQUALITY OFFICER
2.1 The issues for decision by me are whether or not the complainant named the correct respondent when he referred his complaint to this Tribunal on 13 July, 2009 and if not, whether or not the complaint should be dismissed as frivolous or vexatious in accordance with section 77A of the Employment Equality Acts, 1998-2008. In reaching my Decision I have taken into account all of the documentation submitted by the complainant in respect of this matter.
2.2 In his referral form submitted to the Tribunal on 13 July, 2009 the complainant states that he had been employed in a coffee shop (details supplied) for about thirteen months before there was a change of ownership in May, 2009. He adds that following this change of ownership he was retained in employment in a similar capacity by the new owner and contends that he was subsequently treated in a discriminatory manner contrary to the Acts. The complainant names Mr. Ashot Arutunyan as his employer and therefore respondent for the purposes of his complaint. As set out in Section 1 of this Decision the Tribunal made several unsuccessful attempts, with the assistance of the complainant, to locate and thus notify the respondent of the existence of the complaint and the Equality Officer delegated the matter at that time was satisfied it was appropriate to proceed to Hearing. Subsequent to this Hearing the complainant furnished documentation to the Equality Officer which indicated that the respondent had been a Director of three companies and provided postal details of the registered address, which was the same in all three instances. One of these companies was named "Four Star Royal Ltd".
2.3 The complainant had filed a submission to the Tribunal in support of his claim on 7 January, 2010. In this submission the complainant states that during his period of employment he was paid in both cash and cheque form and that the cheque he received in respect of his last week's employment was returned to him by his bank unpaid. On delegation of the complaint to me I noted the complainant had, amongst the documents he had furnished to the Tribunal either at, or subsequent to, the Hearing on 22 June, 2012, provided a copy letter dated 3 July, 2009 from his bank advising that a cheque had been returned unpaid and that the drawer of same had been Four Star Royal Ltd. In light of this correspondence and in the absence of any other documentation which indicated who he was employed by at the relevant time, I was satisfied that a question arose as to whether or not the correct respondent had been named on the referral form (Form EE1). I raised this issue with the complainant and afforded him an opportunity to address the matter but he failed to do so.
2.4 In @Resonance v Rachel Coleman1 the Labour Court stated that it is for a complainant to establish the correct identity of his/her employer and to ensure that proceedings are issued against the correct respondent. It added that the Court, and by extension this Tribunal, has no powers under the Acts to amend the parties to the proceedings or substitute one respondent for another. In the instant case it is noteworthy the complainant was on notice prior to the referral of his complaint to the Tribunal that his employer could have been Four Star Royal Ltd. - as the letter from his bank returning the unpaid cheque predates the referral of his complaint. Moreover, during the period immediately following this referral, the Tribunal engaged in a significant amount of correspondence with the complainant as regards postal details for the respondent and the complainant never drew the Tribunal's attention to the possible involvement of Four Star Royal Ltd. in the matter. Having carefully considered the matter I find, on balance, that at the relevant time the complainant was not employed by Mr. Ashot Arutunyan but was instead employed by Four Star Royal Ltd. and consequently the referral form submitted names the incorrect respondent.
2.5 Section 77A of the Employment Equality Acts, 1998-2008 provides as follows: -
(1) 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.".
In Farley v Ireland & Others2 the Supreme Court stated as follows -
"So far as the legality of the matter is concerned frivolous and vexatious are legal terms, they are not pejorative in any sense....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 which cannot succeed and the law calls this vexatious.".
These principles were subsequently reiterated by the Supreme Court in Fay v Tegral Pipes Ltd & Others3. It is clear therefore that before deciding whether or not to dismiss a complaint as frivolous in terms of Section 77A of the Acts I must be satisfied that the complainant has no reasonable chance of succeeding in his complaint.
2.6 The complainant named the incorrect respondent on his referral form. The most recent occurrence of any alleged discrimination is 6 July, 2009 therefore section 77(5) of the Acts cannot be of assistance to him in terms of bringing a new complaint naming the correct respondent. In light of my comments in this and the preceding paragraphs I find that the complainant has no prospect of succeeding in his complaint and I dismiss the complaint as frivolous in accordance with section 77A of the Employment Equality Acts, 1998-2011.
3. DECISION OF THE EQUALITY OFFICER
I find that this complaint is frivolous in terms of section 77A of the Employment Equality Acts, 1998-2011 and I dismiss the complaint on that basis in accordance with powers conferred on me under that provision.
5 October, 2012
2  IESC 60
3  2IR 261