ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00034388
Parties:
| Complainant | Respondent |
Parties | Thomas P Meagher | Department of Agriculture Food and the Marine |
Representatives | Self-represented | Hugh O’Donnell B.L. |
Complaint:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00045201-001 | 15/07/2021 |
Date of Adjudication Hearing: 21/12/2022
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 79 of the Employment Equality Acts, 1998 - 2015, following the referral of the complaint/dispute to me by the Director General, I inquired into the complaint/dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint/dispute.
Background:
The Complainant submitted a complaint that he was discriminated against on the ground of Family Status, and that he had been victimized by the Respondent. |
Summary of Complainant’s Case:
The Complainant is a qualified Veterinary Surgeon, employed as a Temporary Veterinary Inspector (TVI) by the Respondent. He has a long running dispute with the Respondent regarding preferred shifts. He has requested on numerous occasions for a change in shift from the slaughterhouse to the ante mortem and believes he has been discriminated against and as one of the longest serving TVI he should have been accommodated with his request. |
Summary of Respondent’s Case:
It is contended that the claimant’s complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 (CA-00045201-001) is frivolous, vexatious, misconceived and/or relates to a trivial matter in the following circumstances: i. the Claimant at no point has made out how he was discriminated on the basis of family grounds or ‘other’ grounds or how he was victimised; ii. the Claimant’s claim is time barred; iii. the Claimant is an independent contractor; iv. the Claimant has named as the Respondent an entity which does not at law exist; and v. SOP 10A of the Conditions of Engagement and independent mediation. Written submissions and case law were provided, summarised as follows: The Claimant refers in his written submissions refers to events in 2014 and 2018. The Workplace Relations Complaint form was received by WRC on 15th July 2021 as such the Claimant’s claim is time barred. TVIs are private veterinary practitioners engaged on a contract for services basis by the Department of Agriculture, Food and the Marine (DAFM) for the provision of meat inspection services at 49 commercial Food Business Operator (FBO) premises throughout the State. The Claimant has named the Veterinary Office as the Respondent to the proceedings. The Veterinary Office is not an entity in law. The claimant has failed to avail of independent mediation which was offered to him by DAFM in accordance with Stage 4 of SOP 10A of the Conditions of Engagement. The Conditions of Engagement is a Collective Agreement that has been placed on a statutory footing by S.I. no. 662 of 2019. |
Findings and Conclusions:
A number of preliminary issues raised are addressed in order to establish whether there is jurisdiction to entertain the complainant’s complaint. The first issue to be addressed is that the name of the respondent on the complaint form does not constitute an entity in law. The name cited by the complainant on the complaint form was “Veterinary Office”. The Head Office cited on the form is “Department of Agriculture, Food & The Marine. The Complainant did not specifically seek to invoke the provisions of Section 39(4) of the Organisation of Working Time Act 1997 for the purposes of making the amendment to the name of the Respondent. He stated that it is up to the Adjudicator to deal with the matter. The question I must consider is whether or not it is permissible to substitute the name of the Department of Agriculture, Food and The Marine as the Respondent in these proceedings. In considering this matter, I note that the Courts have held in a number of cases, that statutory adjudicative bodies (such as the WRC) should not adopt a more stringent procedural approach than that adopted in ordinary litigation. In this regard, the Labour Court held in the case of Travelodge Management Limited -v- Sylwia Wach EDA1511 that: “The decision of the High Court in County Louth VEC v Equality Tribunal [2009] IEHC 370 is a seminal case on the question of when proceedings before a statutory tribunal can be amended. In that case McGovern J set out the following principle of law: - “If it is permissible in court proceedings to amend pleadings where the justice of the case requires it, then, a fortiori, it should also be permissible to amend a claim as set out in a form such as an originating document before a statutory tribunal, so long as the general nature of the complaint remains the same.” The ratio of that case appears to be that the procedures adopted by statutory tribunals in relation to the amendment of non-statutory forms used in the initiation of claims should not be more stringent than those thatapply in the ordinary courts. That is in line with the generally accepted principle that statutory tribunals, such as this Court, should operate with the minimum degree of procedural formality consistent with the requirements of natural justice”. The Labour Court also held in the Travelodge case, in referring to Order 15, Rule 13 of the Rules of Superior Courts (S.I. No. 15 0f 1986) which makes provision for the amendment of proceedings initiated in the High Court in which parties are improperly named, that: “It could cogently be argued that in keeping with the decision in County Louth VEC v Equality Tribunal, and by application of the principle of equivalence, the Court should not adopt a more stringent stance in relation to the substitution of parties that is available in the High Court pursuant to that rule.” Having regard to the foregoing authorities, I am satisfied that it is permissible for statutory Tribunals, such as the WRC, to allow a party to amend or substitute the name of an Employer/Respondent in proceedings in certain circumstances and that any such application must be considered on the merits of the individual case. I further note the decision in Capitol Foods Emporium v Walsh where Mr Justice Barrett said: “Quod approbo non reprobo. (‘That which I approve, I cannot disapprove’)….The complainant [or, in the present case, Capital Food Emporium Limited] cannot blow hot and cold; he [it] cannot approbate and then reprobate; he [it] cannot have it both ways”. In this instant case, I note that the complainant inserted the name of the Department in the section of the form identifying the Head Office of the Respondent, and all correspondence addressed to the complainant was from the Department of Agriculture, Food & The Marine. I therefore find there is jurisdiction to hear the complaint against the respondent being the Department of Agriculture, Food and The Marine. The second issue to be considered is that of the grounds cited by the complainant in his complaint of discrimination under the Employment Equality Acts 1998 – 2015. The ground cited by the complainant of discrimination or less favourable treatment is that of ‘family status’. Section 3(2)(iii) of the Employment Equality Act 1998 defines discrimination on the grounds of family status as “(c) that one has family status and the other does not or that one has a different family status from another (the family status ground)”. Section 2 of the Act defines family status as meaning having responsibility as a parent or as a parent in locus parenti in relation to a person who has not attained the age of 18. I find, and it was common case in the hearing, that the complainant failed to provide any evidence of discrimination on grounds of family status and that there was no case to be made out on such ground. The complainant explained at the hearing that he had no legal experience, could not afford legal fees and submitted that he was discriminated against in relation to allocation of shifts. However, the onus is on the complainant to establish on what grounds he believes he has been discriminated against. In this instant case he has not submitted grounds of discrimination which can be entertained under the Act. His complaint therefore is not well founded. |
Decision:
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
I have decided that the complaint is not well founded.
Dated: 14th February 2023
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
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