EQUAL STATUS ACTS 2000-2015
Decision DEC – S2017 – 023
Mr Olumide Smith
Labour Relations Commission, now Workplace Relations Commission (represented by its Registrar)
File Reference: et-155887-es-15
Date of Issue: 20th July 2017
Keywords: Respondent a statutory body exercising statutory duties in the public interest - Beatty v The Rent Tribunal & Another  2 IR 191 – Miley and ors v. Employment Appeals Tribunal[2016, IESC 20] – mala fides or impropriety – judicial immunity – no jurisdiction - misconceived
1.1. The case concerns a claim by Mr Olumide Smith, that the Labour Relations Commission discriminated against him on the ground of race contrary to Section 3(2)(h) of the Equal Status Acts 2000 to 2011, in terms of alleged racial bias by a named Rights Commissioner during the hearing of an employment rights complaint which the complainant had before him.
1.2. The complainant referred a complaint under the Equal Status Acts 2000 to 2011 to the Director of the Equality Tribunal on 15 April 2015. A submission was received from the complainant on 20 November 2015. No submission was received from the respondent, however, the respondent responded to the complainant’s ES1 notification on 10 April 2015 and outlined its position in this response. Pursuant to the provisions of section 59 of the Workplace Relations Act 2015, the Workplace Relations Commission became the respondent in the above matter, it being the legal successor of the Labour Relations Commission on the dissolution of that body.
1.3. On 8 March 2017, in accordance with her powers under S. 25 of the Acts, the Director General delegated the case to me, Stephen Bonnlander, an Equality Officer/Adjudication Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director General under Part III of the Acts. On this date my investigation commenced. As required by Section 25(1) of the Acts and as part of my investigation, I proceeded to hold a joint hearing of the case on 25 May 2015. The last piece of correspondence relating to the complaint was received on 28 June 2017.
2. Summary of the Complainant’s Written Submission
2.1. The complainant submits that a named Rights Commissioner discriminated against him on the ground of race during the course of a hearing concerning an employment rights case, by running the hearing in a way which disfavoured the complainant. He also complains about the outcomes of his complaints, even those where he was successful, where he takes issue with the quantum of his compensation. All of the issues which the complainant raises in his submission would seem to be matters for a potential appeal; however, the complainant perceives them as racial discrimination because he is Yoruba and the Rights Commissioner in question is Caucasian.
3. Summary of the Respondent’s Written Submission
3.1. The respondent, in its response to the complainant’s ES1 form, attached a direct response from the Rights Commissioner in question. The Rights Commissioner denies any racial bias in this letter. He further states that in his view, the adjudicatory functions of Rights Commissioners are not a service or a facility within the meaning of the Equal Status Acts, and expresses the view that the matters raised would have been for an appeal to the Employment Appeals Tribunal. He states that he advised the complainant of that option at the end of the hearing.
4. Conclusions of the Equality Officer
Preliminary issue: Jurisdiction
4.1. The preliminary issue for decision in this case is whether the Commission has jurisdiction in this matter. I sent a copy of legal advice which the then Equality Tribunal commissioned from Clare Bruton, B.L., in 2013 in view of a similar complaint, to the complainant on 4 May 2017. I am satisfied that this advice is already in the possession of the respondent.
4.2. Given the great similarity of issues in the case for which Ms Bruton’s opinion was commissioned and the case on hand, it seems useful to quote from her opinion at some length. She summarises the case as follows:
Querist has received a second complaint pursuant to the Equal Status Acts 2000-2004 from a Ms. S. in respect of alleged discrimination on grounds of race in respect of a Rights Commissioner and the way in which he conducted his hearing. Complaints were made by this complainant pursuant to the Safety, Health & Welfare at Work Act 2005 and Payment of Wages Act 1991 which were withdrawn at the hearing which took place in June 2012. The remaining claims being the claim pursuant to the Terms of Employment (Information) Act 1994, Organisation of Working Time Act 1997 and Unfair Dismissals Acts 1977-2007 proceeded on that day. The complainant alleges that the Rights Commissioner, Mr. A., conducted the case in an unfair manner by failing to allow her to read her statement fully at the hearing, failing to allow the complainant adequate time to consider the respondent’s submission, failing to consider the answers of the complainant to questions posed, excluding the complainant’s husband from the hearing, behaving towards the complainant and her husband in insolent manner, laughing the complainant in the manner in which she answered a particular question and finally suggesting that the complainant was attempting to extract money from her former employer. The complainant alleges that all of this behaviour constitutes discrimination on grounds of nationality. I have reviewed the response of the Rights Commissioner and it is clear that this is all disputed. However it is also clear from reviewing the response of Mr. A. that the allegations are all concerned with the manner in which the hearing pursuant to the three pieces of legislation was undertaken.
4.3. Ms Bruton further notes that the Rights Commissioners were independent in the exercise of their quasi-judicial functions and had “significant discretion in the manner of how they operate the hearing and the decision they ultimately make.”
4.4. She also states that there are no exemptions in the Equal Status Acts to cover the Rights Commissioners Service, as it then was, and notes that some aspects of the service could indeed be understood to be a “service” within the meaning of the Equal Status Acts 2000-2015. In this regard, she refer to Fogarty v Employment Appeals Tribunal (DEC-S2009-087), and notes that
The Equality Officer held at paragraph 4.7 of her decision that some of the functions the Employment Appeals Tribunal are services within the meaning of the Equal Status Acts being those outside of the decision making functions. She determined that the reception and processing of complaints and organising and hearing of complaints is a service or facility within the meaning of the Act. It is clear from the decision that the Equality Officer was keen to limit the application of the Equal Status Acts to the administrative matters of organising and hearing of the appeal and no further.
4.5. Ms Bruton then goes on to consider the issue of judicial immunity, and notes, with regard to the position of statutory tribunals, that
the decision of the Supreme Court in Beatty v The Rent Tribunal & Another is particularly important. In this decision the Supreme Court expressly considered whether statutory tribunals were entitled to enjoy immunity from suit and negligence similar to that provided to Judges. The Supreme Court, by majority, held that statutory tribunals such as in this case, the Rent Tribunal were entitled to have the principle of judicial immunity applied to them. The Supreme Court held that the respondent was a statutory body exercising adjudicative duties in the public interest and provided it was acting bona fide within its jurisdiction it enjoyed immunity from suit in ordinary negligence. The Supreme Court was particularly keen to emphasise that the Rent Tribunal performed a role akin to an arbitrator and its decisions was judicial in character and that the independence would be compromised if any duty of care was applied to it. […]In addition Mr. Justice Geoghegan held that any immunity must be removed by statute.
4.6. Another important point from the Beatty case is that Geoghegan J expressed “considerable doubt” that an action for misfeasance of public office would lie “in circumstances where the Court or Tribunal was acting within jurisdiction.” This is of particular relevance in light of the Rights Commissioner’s written explanation that he did not let the complainant make a submission on potentially discriminatory actions by his employer because there was no discrimination complaint before him. It seems also appropriate to note at this point that on the complaint which was correctly before him, the Right Commissioner found in favour of the complainant. The complainant however, and that was also clear from his oral evidence, seemed aggrieved about the weight which the Rights Commissioner accorded to the respondent’s breach of the law in the matter before him.
4.7. Ms Bruton concluded that “[t]hereforeit is clear in my view that prima facie the principle of judicial immunity applies both to the Office of the Rights Commissioner and the PRTB in the exercise of their adjudicative functions and hearing.
4.8. At the hearing of the complaint, I invited views from both parties on that position.
4.9. The Registrar of the WRC submitted that I should have additional regard to the decision of the Supreme Court in Miley and ors v. Employment Appeals Tribunal [2016, IESC 20]. I sent the case on to the complainant, and he submitted his observations on 28 June 2017.
4.10. The case considers the circumstances in which a statutory tribunal can lose its judicial immunity through the spectre of costs awarded against it in judicial review proceedings. This is relevant insofar as liability for costs does imply the loss of judicial immunity. In the relevant case, Denham CJ for the Supreme Court held that but for mala fides and impropriety, the Employment Appeals Tribunal enjoyed immunity from costs.
4.11. Mala fides, literally “bad faith”, is not specifically defined by the Supreme Court in this judgement since it found that the Tribunal had not acted mala fides, but would generally be understood as an intentional and malicious abrogation of duty. The Court accordingly notes that mala fides “goes to intent and motive”. It then goes on to define “impropriety” as “wholly unfit proceedings”, and found that whilst the proceedings before the Tribunal had fallen short of desirable standards, and hence its decision was rightly quashed, these shortcomings did not reach the level of “impropriety”. Not much turns on this for the purpose of the decision on jurisdiction which I have to make, for reasons which I will explain below, but it seems appropriate to convey a general idea of the fairly extreme circumstances which have to prevail for a judicial body to lose its immunity.
4.12. The complainant’s written observations in response to Miley can be summarised as follows: He states that in his view the Rights Commissioner in question “failed to act bona fide and without negligence” [sic], that the Rights Commissioner “failed to apply the principle of fairness, fair procedures and natural justice”, that he “violated my equality rights protected by Article 1, Article 13, Article 14 and Article 17 of the European Convention on Human Rights, i.e. ECHR, and Article 1 of Protocol 12 to the ECHR; violated my equality rights protected by Article 2(1), Article 2(2), Article 2(3) and Article 2(4) of the Race Directive i.e. Council Directive 2000/43/EC; treated with prejudice and disrespect my constitutional rights to represent myself as an Applicant in Person.”
4.13. The complainant further stated that “this Equal Status Complaint presents how the Labour Relations Commission treated me unfavourably in violation of my equality rights and not about recovering costs of a Judicial Review from this Respondent, i.e. the Workplace Relations Commission”, which seems to indicate a lack of understanding on the part of the complainant as to why he was asked to comment on the principles governing judicial immunity which the Supreme Court enunciated in Miley. That said, in light of the fact that the complainant had no legal representative, I granted him four weeks to submit his observations, which would have given him more than enough time and opportunity to seek appropriate guidance from a qualified professional. I am therefore proceeding with my decision.
4.14. The question of the Commission’s jurisdiction encompasses two distinct constituent questions: Is the Rights Commissioner covered by judicial immunity? If so, and if the Rights Commissioner did act improper and mala fides in exercising his functions, would the Commission have the jurisdiction to make such a finding?
4.15. To answer the first question, there is no doubt in my mind that the adjudicative functions of a Rights Commissioner are covered by the principle of judicial immunity. For the duration of the existence of the Labour Relations Commission and its Rights Commissioner service, Rights Commissioners were independent office holders tasked with adjudicating employment rights complaints at first instance. Their decisions are therefore undoubtedly “judicial in character”, as the Supreme Court put it in Beatty, and this locates their service squarely within the parameters established by the superior courts in Beatty and Miley.
4.16. The second question then is, even if a complainant succeeds in proving that a Right Commissioner or nowadays, an Adjudication Officer acted improperly or with mala fides – and I wish to stress that I am making no such finding with regard to the within case – would I have jurisdiction to do so? I am satisfied that I have not, since the Workplace Relations Commission is a tribunal of limited jurisdiction established by statute which does not have any such jurisdiction. There is no such provision in either the Workplace Relations Act 2015, as amended, or in the Equal Status Acts 2000-2015. The power to make any finding of this nature is the prerogative of the superior courts, in the context of the oversight they exercise over the lower courts and the public administration of this country by way of judicial review.
4.17. For all of these reasons, parties who are dissatisfied with the outcome or conduct of an adjudicative process, rather than being able to claim discrimination under the Equal Status Acts, have two remedies open to them: An appeal with regard to the outcome, and judicial review in the superior courts for alleged defects in process. I am satisfied that these were available to the complainant as they are to any other litigant. That he mistakenly chose to bring the within complaint instead is therefore his responsibility. I am satisfied that the Commission has no jurisdiction in this matter, and that therefore the complaint is misconceived in law.
4.18. A claim is misconceived when it is incorrectly based in law. In Keane v. Minister for Justice [1994 3IR 347], Lynch J found that the Minister had no statutory power to relieve Leitrim County Council of its duty to provide courthouse accommodation in Carrick-on-Shannon and that her direction to the council was therefore “wholly misconceived and invalid”. In my view, for the reasons set out above, this complaint is similarly misconceived.
5.1 This decision is issued by me following the establishment of the Workplace Relations Commission on 1st October 2015, as an Adjudication Officer who was an Equality Officer prior to 1st October 2015, in accordance with section 83(3) of the Workplace Relations Act 2015.
5.2 Based on all of the foregoing, I find that I have no jurisdiction to investigate the above complaint and therefore dismiss it as misconceived pursuant to Section 22 of the Equal Status Acts 2000-2015.
Equality Officer/Adjudication Officer
20 July 2017
  2 IR 191