EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2017- 073
Alexander Sokolov Grant
The Department of Arts Heritage and the Gaeltacht
File reference: Et-156792-ee-15
Date of issue: 25th of September, 2017
This dispute involves claims by the complainant that he was discriminated against by the respondent on the grounds of race and religion in terms of section 6 (2) and contrary to section 8 of the Employment Equality Acts, 1998 to 2015 in relation to getting a job, promotion, training conditions of employment and other. There are also complaints of harassment, discriminatory dismissal and of victimisation as well as a claim for Equal Pay.
2.1 The complainant referred a complaint against the above respondent under the Employment Equality Acts 1998 to 2015 to the Equality Tribunal on the 6th of May 2015.
2.2 In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2015 the Director delegated the case on the 9th of June, 2017 to me, Orla Jones, an Adjudication/Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts. This is the date I commenced my investigation. Written submissions were received from both parties.
2.3 The complainant wrote to the Commission advising that he did not wish to attend a hearing in respect of his complaint but asked that the Commission complete the investigation and issue a decision without a hearing.
2.4 Section 24 of the Civil Law (Miscellaneous Provisions) Act 2011 inserted a new subsection 2A in section 79 of the Employment Equality Acts which provides:
“(a) Where the Director considers that the case may be dealt with on the basis of written submissions only, the Director shall notify the parties in writing of his or her proposal to do so.
(b) A notification under paragraph (a) shall inform the parties of the right to make representations to the Director in accordance with paragraph (c).
(c) A person who receives a notification under paragraph (a) may, within 28 days from the issue of the notification, make representations to the Director as to why the case should not be dealt with on the basis of written submissions only.
(d) Where, in representations made pursuant to paragraph (c), objection is made to the Director dealing with the matter on the basis of written submissions only, the Director shall not determine the matter in that manner.”
2.5 Having read the written submissions the Commission considered that the case could be dealt with on the basis of these submissions. Accordingly, the Commission gave notification of this to both parties and asked them to respond within 28 days. Both parties confirmed within 28 days that they had no objection to the matter being dealt with on the basis of the written submissions.
3. Summary of complainant’s case
3.1 The complainant submits that
He was discriminated against on grounds of race and religion by the respondent in relation to getting a job, promotion, training conditions of employment and other. There are also complaints of harassment, discriminatory dismissal and of victimisation as well as a claim in respect of Equal Pay.
4. Summary of Respondent’s case
4.1 The respondent submits that
The complainant has never been employed by them and the complaint cannot validly be taken against them.
5. Jurisdictional Issue
5.1 The respondent in this case has submitted that the complainant has never been employed by the respondent and that no employment relationship exists or existed. The complainant in response to this has not provided any evidence to suggest that he has ever been or sought to be an employee of the respondent. The complainant in this case has also submitted a claim under the Equal Status Acts in respect of this matter and this will be dealt with separately and under a separate decision.
5.2 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”.
5.3 I am satisfied that the within complaint falls squarely within the parameters of misconceived jurisdiction, in that the complainant, has named the Department of Arts Heritage and the Gaeltacht as respondent to a claim under the Employment Equality Acts despite the fact that no evidence has been adduced to suggest that the complainant was ever involved in or ever sought to be involved in an employment relationship with the respondent.
6.1 Based on all of the foregoing, I make the following decision :
That I dismiss the within complaint pursuant to S. 77A of the Acts, on the ground that it was brought against the wrong respondent and is therefore misconceived in law, and that I have no jurisdiction to investigate this matter.
25th of September, 2017