ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00055292

Parties:

	Complainant	Respondent
Parties	Mr Pierce Parker	Mr Garry Smith UCD Estate Services

	Complainant	Respondent
Anonymised Parties

Representatives

Self-Represented

Mr Barra Faughnan BL instructed by Ms Catherine Kelly Mason Hayes & Curran

Complaint:

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000	CA-00067332-001	12/11/2024

Date of Adjudication Hearing: 24/04/2025

Workplace Relations Commission Adjudication Officer: Eileen Campbell

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 25 of the Equal Status Act, 2000, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint. The hearing was conducted in person in Lansdowne House.

While the parties are named in the Decision, I will refer to Mr Pierce Parker as “the Complainant” and to Mr Garry Smith as “the Respondent”.

The Complainant attended the hearing and he presented as a litigant in person. The Respondent was represented by Mr Barra Faughnan BL instructed by Ms Catherine Kelly Solicitor Mason Hayes & Curran accompanied by Ms Isabelle Tierney Trainee Solicitor.

I explained the procedural changes arising from the judgment of the Supreme Court in Zalewski v. An Adjudication Officer, Ireland and the Attorney General [2021] IESC 24 in April 2021. No application was made by either party that the hearing be heard other than in public. The parties agreed to proceed in the knowledge that a decision issuing from the WRC would disclose identities.

There was no requirement to administer an oath or affirmation due to the fact there was no evidence adduced by the parties. The Respondent raised a preliminary issue of jurisdiction on which I heard submissions from the parties.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties under statute. I can confirm I have fulfilled my obligation to make all relevant inquiries into these complaints.

There was a preliminary objection raised by at the outset namely that the Complainant named the incorrect respondent. This was the first jurisdictional issue highlighted. In the interests of clarity this is not a situation where it is alleged the respondent is named incorrectly. It is a situation where it is alleged the incorrect respondent is cited on the WRC complaint form.

Background:

CA-00067332-001

This matter came before the Workplace Relations Commission dated 12/11/2024 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 24/04/2025.

The Complainant submits he has been discriminated against by the Respondent by reason of gender; family status, race, age, unlawfully discriminating against him in Other, unlawfully discriminating against him in harassing him, unlawfully discriminating against him victimising him, treating him unlawfully by direct discrimination, and treating him unlawfully by indirect discrimination by the failure to interview him for a position.

As the Complainant presented as a litigant in person I provided both parties with relevant precedent in relation to Section 42(1) of the Equal Status Act 2000, and the definition of vicarious liability set out hereunder:

42.— (1) Anything done by a person in the course of his or her employment shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that person’s employer, whether or not it was done with the employer’s knowledge or approval.

I invited the parties to address me on the matter having provided time for them to review the precedent and the relevant legislation set out therein.

The Respondent had indicated that there would be no consent forthcoming to the amendment of title. The Complainant, in any event, was insistent the correct respondent was named so the matter of consent or otherwise did not arise for consideration.

The Respondent raised two further preliminary objections namely that the complaint was incorrectly constituted as the Complainant had impleaded the incorrect legislation and that the complaint was a egregious abuse of process and should as such be dismissed by the WRC under the jurisdiction vested in it by the legislation.

It was explained to the parties at hearing, having reserved my position on the preliminary issue, that there would be a hearing scheduled to hear the substantive matter in the event I make a ruling on the preliminary issue that finds that I have jurisdiction.

It was explained to the parties that in the event I find in favour of the Respondent on the matter of the preliminary issue of jurisdiction there will not be a further hearing as I would then be precluded from determining on the substantive matter.

To ensure clarity and understanding I reaffirmed that if I were satisfied of jurisdiction the hearing would be reconvened to allow the parties to give evidence on the substantive matter. If it was clear that I had no jurisdiction there would be no requirement to reconvene to hear the substantive matter and a decision would issue.

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

Summary of Complainant’s Case as to the Preliminary Issue – Incorrect Respondent

CA-00067332-001

The Complainant in his written submission submits that Garry Smith is the “true and correct respondent and not UCD.”

The Complainant at hearing expressed his gratitude for the precedent provided and submits that it really interests him. The Complainant submits this is a dual liability and should be noted as such and that his WRC complaint form should be amended to reflect this. The Complainant submits the law needs to be clearer here to protect the protected classes.

Having regard to impleading the incorrect legislation the Complainant submits the complaint form does not explain properly and it is confusing. The Complainant submits he failed to appeal in the past due to illness. The Complainant does not accept that I cannot grant an adjournment so that a related complaint against another staff member of UCD can be heard with the instant complaint.

Adjudicator note: The related complaint (ADJ-00054251) referred to by the Complainant was the subject of a previous hearing on 02/04/2025.

Summary of Respondent’s Case as to the Preliminary Issue – Incorrect Respondent

CA-00067332-001

The Respondent representative submits dual liability does not arise. The Respondent representative submits the Complainant insists on suing individuals throughout and makes reference to the schedule of complaints raised by the Complainant at the WRC.

The Respondent representative submits there are in fact three jurisdictional issues. It is submitted Mr Smith is not a provider of goods or services. It is submitted that section 42(1) of the Act as amended provides that this does not mean that the Complainant cannot make a complaint but the Respondent is not consenting to amending the respondent name in this instance as it has done in the past with the Complainant. The Respondent representative submits this is a repeated vexatious complaint and it is incorrectly constituted in any event. It is submitted that section 7 of the Employment Equality Act provides for claims regarding access to employment and section (8) (1)(a) specifically relates to the refusal of an interview.

The Respondent submits it should be dismissed on that basis also as it is plain to see that Mr Smith is not an employer. It is submitted the AO has no jurisdiction on the basis of the incorrect respondent and on the basis of the incorrect legislation impleaded.

It is submitted this is an extraordinary abuse of process; egregious conduct; and vexatious complaints filed by the Complainant predicated on allegations of discrimination already dismissed.

It is submitted the Complainant is purporting to rely on matters already relied upon having filed multiple claims and losing them all and having appealed none of them. The Respondent reiterates there will be no consent forthcoming to amending the name of title in what is an extraordinary abuse of process.

The Respondent representative submits that the Complainant’s excuses about the confusion on the complaint form simply do not add up as the Complainant was familiar with and knew the difference between a complaint under the Equal Status and the Employment Equality Acts as far back as December 2021 when he had filed complaints at the WRC under both statutes.

Findings and Conclusions:

CA-00067332-001

The guidance notes for a hearing issued by the WRC in July 2021 state if any preliminary issues need to be addressed in the vast majority of cases the AO will take evidence in relation to the preliminary points raised from both parties 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.

Accordingly, I will address the matter of the incorrectly named respondent at the outset in circumstances whereby this matter may be determinative of the entire proceedings.

I note it is an employee of UCD Estate Services who is named by the Complainant on his WRC complaint form.

The Relevant Law

Vicarious Liability

The Equal Status Acts 2000 (“the Acts”) provide that a complaint of discrimination may be referred against a named person or an organisation, public body or other entity. Section 2(1) defines the term “person”:

“person”, as that term is used in or in relation to any provision of this Act that prohibits that person from discriminating or from committing any other act or that requires a person to comply with a provision of this Act or regulations made under it, includes an organisation, public body or other entity .”

Section 42(1) of the Equal Status Acts provides:

“Anything done by a person in the course of his or her employment shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that person’s employer, whether or not it was done with the employer’s knowledge or approval.”

The purpose of Section 42 of the Equal Status Act 2000 is to allow responsibility for prohibited conduct to be attributed to an employer, where that prohibited conduct is carried out by an employee in the context of his or her employment. It is submitted that if a person is found to have discriminated in the course of his/her employment (for example implementing a policy on behalf of the employer which may be found to be discriminatory) then it is that person’s employer who may be vicariously liable in accordance with Section 42(1) of the Equal Status Acts. [emphasis added]

In ruling on this matter I am guided by the findings of the Equality Officer in Michael Mongans & others v. Clare County Council DEC-S2006-084 where she found as follows:

“The named officials are all employees of Clare County Council and acted in the course of their employment with the Council. In considering this application I have taken account of a Judgment in the High Court in the case of Faughnan v. Maguire concerning an application to have a named defendant removed from medical negligence proceedings. O' Sullivan J stated:

"From the point of view of the Plaintiff, if it does transpire that a court can be satisfied that Dr. O'Brien is in some way legally responsible for his injury, prima facie (and I accept that this point has not been conceded by the Plaintiff) the first Defendant as employer of Dr. O'Brien, would be “accountable”.

O'Sullivan J went on to hold that:

"In my opinion therefore, the balance of justice favours the discontinuance of the action against Dr. O'Brien..."

The reasoning in this judgment is relevant to the application in this case. If the complainants' application for redress is successful Clare County Council will be "accountable". The Equality Officer therefore, considered it appropriate that Clare County Council should be the only named respondent and informed the parties that this is how the cases would proceed.”

It is well established dual liability can only apply where the person whose conduct is complained of is also acting in their personal capacity as opposed to as agent for or on behalf of his/her employer.

I am satisfied there is no suggestion here the named respondent was acting in their personal capacity.

Therefore, the principle of vicarious liability applies to attach liability to the employer in the event that the complaints are upheld and not to attach some form of dual liability which runs totally contrary to the established principle of vicarious liability.

Further to the application of the law to the facts herein I am not satisfied that the name listed as the respondent on the complaint form is the correct respondent for the following reasons. The named respondent at the time of the alleged contravention was employed by UCD. The named respondent was not a provider of goods and/or services in their own right.

I find I do not have jurisdiction to hear this complaint as presented.

Accordingly, I am not required to consider the jurisdictional issue of the incorrect legislation impleaded by the Complainant but for completeness and for the avoidance of any doubt on this matter I will address this matter as I believe it is important that I do so.

The title of the respondent, as insisted upon by the Complainant, would still be the incorrect respondent under the Employment Equality Act, 1998 because Mr Garry Smith is not now and never was the putative employer of the Complainant.

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”.

In 2005, McCracken J reiterated this in Fay v. Tegral Pipes Limited & Ors [2005] 2 IR 261 highlighting that the ‘real purpose’ of the courts’ inherent jurisdiction to dismiss frivolous or vexatious claims was firstly, to ensure that the courts would be used only for the resolution of genuine disputes and not for ‘lost causes’ and, secondly, that parties would not be required to defend proceedings which could not succeed.

Birmingham J. provided a legal definition of “frivolous” in Peter Nowak v. Data Protection Commissioner [2012] IEHC 499, where he held that: “frivolous, in this context does not mean only foolish or silly, but rather a complaint that was futile, or misconceived or hopeless in the sense that it was incapable of achieving the desired outcome”.

I further note in J.O’N v. S McD & Others [2013] IEHC 135, Birmingham J, in considering applications made by the defendants to strike out the plaintiff’s claim for failing to disclose a reasonable cause of action and as being frivolous and/or vexatious, described the words “frivolous” and “vexatious” as follows:

“…the words “frivolous” and “vexatious” are terms of art, they are legal terms and they are not used in a pejorative sense. They merely mean that the plaintiff has no reasonable chance of succeeding and that, because there is no reasonable chance of success, it is frivolous to bring the case. By the same token it imposes a hardship on the defendant if he has to expend time, effort and money in defending an action which cannot succeed and that is regarded as vexatious…”

In dismissing the plaintiff’s case, Birmingham J stated as follows:

“…In my view the plaintiff has no reasonable chance of succeeding against the first named defendant and it would be oppressive to require the defendant to have to take on the burden of defending proceedings which are fundamentally misconceived…”

I also note the decision in Goode Concrete v. CRH plc [2012] IEHC 116 wherein, at para. 36, it was stated:

“A plaintiff's right of access to the Courts is not absolute and the Court has jurisdiction to prevent the right being abused by, for example, dismissing a case for inordinate delay or as frivolous, vexatious or bound fail in order to prevent injustice to a defendant (see Barry v Buckley [1981] IR 306).”

In Loughrey v. Dolan [2012] IEHC 578 Laffoy J relied on a decision of the Ontario High Court of Justice in Re Lang Michener and Fabian (1987) 37 D.L.R. (4th) 685, cited by the High Court in Riordan v. Ireland (No. 5) [2001] 4 I.R. 463 and Behan v. McGinley [2011] 1 I.R. 46, and which listed a number of factors which tend to indicate that proceedings may potentially be vexatious in nature and thus amenable to being struck out. These factors, which are not meant to be exhaustive, are as follows:

(a) whether the issues in dispute are matters which have already been determined by a court of competent jurisdiction, i.e. res judicata;

(b) where it is obvious that an action cannot succeed, or if the action will lead to no possible good, or if no reasonable person can expect to obtain relief;

(c) where the action is brought for an improper purpose, including harassment and oppression of other parties, as opposed to asserting legitimate legal rights;

(d) where grounds and issues sought to be litigated tend to be rolled forward into subsequent actions and repeated and supplemented;

(e) where the person instituting the proceedings has failed to pay the costs of unsuccessful proceedings;

(f) where the plaintiff persistently takes unsuccessful appeals against judicial decisions.

(g) where there is the persistent taking of unsuccessful appeals from judicial decisions.

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.

Where a person engages in a pattern of litigation (or applications as in the present instance) which not only come within those descriptions but can be said to be actuated by ill-will or bad faith, such conduct may properly be described as vexatious.”

In conclusion, based on all the foregoing, I am satisfied that this claim as presented is futile and bound to fail because I do not have jurisdiction in the first instance to determine on the substantive matter as the Complainant has named the incorrect respondent in this complaint as presented.

On that basis I dismiss the complaint in accordance with section 22 of the Acts.

Decision:

Section 25 of the Equal Status Acts, 2000 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act.

CA-00067332-001

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

Dated: 23rd May 2025

Workplace Relations Commission Adjudication Officer: Eileen Campbell

Key Words:

Incorrect respondent; incorrect legislation;