Complainant

Respondent

Parties

Pawel  Pisarek

Garda Siochana Ombudsman Commission

Complainant

Respondent

Anonymised Parties

Representatives

Paul Gough,                                 Beauchamps Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00067475-001

19/11/2024

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/2020 which said instrument designates the Workplace Relations Commission as a body empowered to hold remote hearings pursuant to Section 31 of the Principal Act. The said remote hearing was set up and hosted by an appointed member of the WRC administrative staff. I am satisfied that no party was prejudiced by having this hearing conducted remotely.  I am also satisfied that I was in a position to fully exercise my function, and I made all relevant inquiries in the usual way.

In response to the Supreme Court decision in the constitutional case of Zalewski  -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021 ]IESC 24 (delivered on the 6th of April 2021), I can confirm that the within hearing was open to the public so as to better demonstrate transparency in the administration of Justice.  In line with the coming into effect of the Workplace Relations (Miscellaneous Provisions) Act, 2021 on the 29th of July 2021, I can confirm that the witnesses herein were required to give their evidence on oath or affirmation. This was done in recognition of the fact that there may have been a serious and direct conflict in evidence between the parties to the complaint. It is noted that the giving of false statement or evidence is an offence.

period directly preceding this date.

The Specific Details of the Dispute are outlined in the Workplace Relations Complaint Form which was received by the WRC on the 19th of November 2024. In general terms, I am therefore looking at issues that have arisen in the six-month immediately preceding this date.

In the interests of fairness, the WRC acquiesced to an application made for the provision of an interpreter. It is noted that the interpreter is provided to assist the Adjudicator to conduct an orderly and fair hearing of the Complaints being made by the Complainant in his/her preferred language. The interpreter did not guide or assist the person for whom the interpreter was sought/the Complainant. The Interpreter simply interpreted what was being said by the Complainant. I perceived there to be no difficulty in communication between the Interpreter and he Complainant.

The interpreter was invited to swear an oath/make an affirmation to well and truly interpret.

At the completion of the hearing, I did take the time to carefully review all the oral evidence together with the written submissions made by the parties. I have noted the respective position of the parties.  I am not required to provide a line-by-line assessment of all the evidence and submissions that I have considered. Any matter not specifically addressed is deemed superfluous to the main findings.  I am guided by the reasoning in Faulkner v. The Minister for Industry and Commerce [1997] E.L.R. 107 where it was held that a

“…minute analysis or reasons are not required to be given by administrative tribunals...the duty on administrative tribunals to give reasons in their decisions is not a particularly onerous one.  Only broad reasons need be given…”. 

The Complainant was not represented and made his own case. When it came time to hear the Complainant’s evidence, the Complainant agreed to make an Affirmation to tell the truth. The Complainant relied on the submission set out in the Workplace Relations Complaint Form (dated 19th November 2024) which read:

Case officer AB discriminated me because I'm Polish. He tries to cover up the discrimination and racism of the garda officer. In doing so, he is aligning himself with a Garda racist whom he is trying to protect from criminal prosecution. Racism and racist behaviour are punishable under European and Irish law. At the same time, he humiliates me and my son indirectly by calling us liars.

The Complaint form can be read in conjunction with the ES1 Form dated the 2nd of September 2024 which read:

In my view, it is discriminatory to refuse to punish and even try to cover up the racist behaviour of the garda inspector against whom I have complained to the ombudsman. Secondary victimisation and racism by case officer AB. AB justified his refusal to punish the racist and nationalist inspector as follows : 'given all the circumstances, further investigation is not necessary or reasonably practicable'. AB with this sentence makes it clear that the Pole is rubbish in Ireland. AB is making it clear that members of the judiciary in Ireland can show their racist and nationalist face with impunity and AB will do everything to ensure that racist and nationalist behaviour goes unpunished.

The Complainant alleges that he was discriminated against on the grounds of his race by the Garda Siochana Ombudsman Commission (GSOC) and in particular in the conduct of a GSOC Investigation into a complaint raised by the Complainant. 

Where it also became necessary, I explained how the Adjudication process operated with particular emphasis on the burden of proof which had to be attained by the Complainant in the first instance.

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 as prescribed by Statute. 

The Respondent had full legal representation at this hearing. The Respondent entity was also represented by a witness – Senior Case Officer CR. The Respondent provided me with a comprehensive written submissions dated 10th March 2025. No objection was raised in connection with any of the documentary evidence relied upon by the Respondent in the course of making its case. All evidence was heard following an Affirmation.

The Respondent witness was questioned as appropriate by the Complainant.

The Respondent rejects that there has been any Discrimination but more importantly the Respondent asserts and submits that the complaint should be dismissed pursuant to section 22 of the Act of 2000 on the ground that it is misconceived.

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 as prescribed by Statute.

There is something of a pre-history herein and even though the Respondent was anxious to move to the issue of jurisdiction I allowed the Complainant to outline his evidence on affirmation.

As I understand it, the Complainant was the alleged victim of a number of criminal attacks. There seemed to have been up to three issues that the Complainant raised at his local Garda Station. The issues included an alleged assault against the Complainant, as well as the theft of his mobile phone. The Complainant was seemingly unhappy with how the Gardai had handled the issues he had raised. The Complainant attended the Garda Station together with his son who was there to help with any translation issues that the Complainant might have had.

I cannot know what exactly transpired between the Complainant and the member of the Garda Siochana with whom he was dealing but it seems voices might have been raised and the Complainant was asked to leave the Station building (according to the Complainant).

The Complainant was unhappy at this treatment and felt that there was a racial element given that he is of Polish ethnicity. It is worth noting that the Complainant offered nothing of a racial nature in his narrative to me. In fact, the only thing that he said was said to him (by the Garda Member) was to “go away from my office”.

The complaint made was that the member of the Garda had failed to properly investigate the said crimes and that the Garda had been discourteous and that the Garda had seemingly become annoyed that the Complainant and his son were speaking Polish and this was perceived by the Complainant to be discriminatory.

As is entirely his right, the Complainant made a complaint to The Garda Síochána Ombudsman Commission (GSOC) which is an independent statutory body charged with overseeing the Garda Síochána and was established under the Garda Síochána Act, 2005 (the "Act") to deal with complaints from members of the public about the conduct of Gardaí. The GSOC mission is to provide efficient fair and independent oversight of policing in Ireland.

I heard from the GSOC witness as to what happens once a complaint is made. In the first instance the GSOC must determine if the complaint is admissible. Thereafter the decision must be made how the complaint will be investigated depending upon whether it is a criminal or disciplinary issue.

If, as in this complaint, the complaint is about a possible breach of Garda discipline - the Garda Ombudsman may refer to the complaint to an independent member of an Garda Siochana for investigation as provided for under Section 94(1) of the Garda Siochana Act of 2005.

As per the Respondent’s ES2 Reply Form the Investigating Officer came back to GSOC:

In this case, AGS conducted the investigation, found no independent or corroborative evidence to support the allegation and made a report to GSOC with its findings and a recommendation to discontinue the investigation of the complaint.

At this point in time, it was open to GSOC to do one of three things. GSOC could seek further clarification. GSOC could require further Investigation. GSOC could accept the finding so made and relay that finding back to the Complainant.

In this instance:

GSOC carefully considered the contents of the report and concurred with the AGS recommendation. The GOSC officer informed you (meaning the Complainant) of the decision and used a standard template letter with standard wording used on all our correspondence of this nature.

In oral evidence I was told that having considered the independent investigation GSOC decided to close this case as there was no independent or corroborative evidence to support the case.

It should be noted that I do not for one second question the bona fides of the investigation undertaken for and on behalf of the GSOC and into the Complainant’s complaint. I should also note that whilst it is clear that the Complainant is aggrieved by how he perceives he was treated, I have no inkling that the Complainant was treated less favourably than another person might be on the grounds of his nationality.

My observations in this regard are however somewhat moot as there is no doubt that the GSOC decision to accept the findings of the investigation and close down the complaint, are quasi-judicial decisions which are not capable of being scrutinised under the Equal Status Act. These are Statutory functions captured by Section 14 of the Equal Status Act 2000.

The case law and Statutory interpretation in this regard is well settled and for completeness I can include an edited version of the Respondent submission which reads:

As a preliminary point, the statutory functions of GSOC are not "services" within the meaning of the Equal Status Acts.

Definition of "Service".

The Equal Status Acts 2000-2015, prohibits discrimination in the provision of goods and services, the provision of accommodation and access to education, on any of the nine grounds.

The Act defines "Service” as meaning "a service or facility of any nature which is available to the public generally or a section of the public, and without prejudice to the generality of the foregoing, includes—

(a) access to and the use of any place,

(b) facilities for—

(i) banking, insurance, grants, loans, credit or financing

(ii) entertainment, recreation or refreshment,

(iii) cultural activities, or

(iv) transport or travel,

(c) a service or facility provided by a club (whether or not it is a club holding a certificate of registration under the Registration of Clubs Acts, 1904 to 1999) which is available to the public generally or a section of the public, whether on payment or without payment”

Section 14 of the Equal Status Act 2000 as amended states that:

14.(1) Nothing in this Act shall be construed as prohibiting—

(a) the taking of any action that is required by or under—

(i) any enactment or order of a court

Judy Walsh in the Equal Status Acts 2000-2011, 2012 edition, Blackhall Publishing, at page 43 states:

“Equivalent UK provisions have been subject to fairly extensive interpretation (McColgan, 2005, pp 255-285; Monaghan, 2007, pp 505-508). In a number of cases UK courts concluded that ‘services’ were confined to acts of similar kind to acts that might be carried out by a private person. Therefore, functions that are of a public law nature (i.e. enforcement, regulatory and control functions) have fallen outside the scope of that country’s non-discrimination legislation.”

In Fogarty v Employment Appeals Tribunal (DEC-S2009-087) the Equality Officer concluded:

"I also find that the adjudication and decision-making function of the respondent under the Unfair Dismissals Acts is not a "service" or "facility" which is available to the public. The respondent is exercising a quasi-judicial decision-making function which is not subject to the terms of the Equal Status Acts. Therefore, I find that any aspect of this complaint which refers to the decision-making function of the respondent is misconceived."

In WRC Adjudication reference number ADJ-00011410 a preliminary matter was raised concerning the Judicial Immunity of a Statutory Tribunal. This complaint was also made under the Equal Status Acts about another statutory tribunal. In relying on the Supreme Court judgement of Beatty v the Rent Tribunal [2006] 2IR 191, the adjudication officer determined that he had no jurisdiction to hear the complaint.

It is submitted that in carrying out its statutory functions under the Garda Siochana Act 2005 that GSOC is not providing a service as covered by the Equal Status Acts. There is precedent for this in the case of Peter O'Neill -v- GSOC (DEC – 2010/037) in which the Claimant claimed that the decision not to extend the six-month time limit for a referring a complaint was a breach of the Equal Status Acts. In that case the Adjudication Officer determined as follows:

"It clear to me that the Complainant is attempting to appeal the decision of the respondent to this Tribunal. While I am satisfied that some of the services provided by the respondent to members of the public would come within the scope of the Act, the decision-making function is not a service as defined under Section 2 of the Equal Status Acts. There is a statutory duty on the respondent to investigate and make decisions including decisions about the admissibility of complaints in accordance with the Garda Síochána Act, 2005. It is a quasi-judicial decision making function and is not amenable to review by this Tribunal.

In considering this case I have followed the Equality Tribunal's decision in the case of Donovan v. Donnellan (DEC-S2001-011) and which was considered and followed in Fogarty v The Employment Appeals Tribunal (DEC-S2009-087). The Equality Officer in Donovan case concluded that the investigation and the prosecution of crime by a member of the Gardaí does not constitute the provision of a service or a facility to the public. I also note that in the Donovan case that the Equality Officer, who considered the jurisprudence in the English case of Farah v. Commissioner of Police of the Metropolis (1997) 2 W.L.R. 824, differentiated between the duty of the Gardaí to investigate and prosecute the commission of a crime and other functions of an Garda Síochána such as witnessing a passport application, giving directions or taking a complaint. The Equality Officer stated :

" the legislation succeeded in excluding from the scope of the Act the controlling duties of the Garda Síochána, including those of the investigation and the prosecution of crime, while at the same time legislating that the service aspects of policing come within its scope."

In the Fogarty case the Equality Officer differentiated between the administrative functions of the EAT and their decision-making functions and held that the decision-making functions was not a service within the meaning of the ES Acts.

“Taking into consideration the reasoning in the above mentioned cases, I find that the respondent is exercising a quasi-judicial decision making function, and this decision making function is not a service and therefore is not subject to the terms of the Equal Status Acts."

In both his ES1 form and his claim form the Claimant's complaint clearly relates to the Case Officer exercising his statutory functions.

It must be noted that the Case officer, AB, exercised a very limited function in respect to this case. The statutory decision-making functions in this case, which related to the admissibility of the complaint, the allocation of the complaint to be investigated in accordance with Section 94 (1) of the Garda Síochána Act 2005 and the subsequent discontinuation of Complaint were made by other staff members, who have been delegated with these authorities.

The role of a Case Officer in a complaint that is allocated to be investigated in accordance with Section 94 (1) of the Garda Síochána Act 2005 is limited.

The investigation of the complaint lies solely with An Garda Síochána and GSOC does not direct An Garda Síochána in these investigations to conduct any investigative enquires, that is strictly and solely a matter for An Garda Síochána.

It is submitted that it has been established in earlier cases that the statutory functions of GSOC and it's case officers are not services within the meaning of the Equal Status Acts.

As judicial immunity applies to GSOC, it is open to me to dismiss the within complaint as misconceived.

It is also important to note that if the Complainant had a concern regarding the lawfulness of the decision by the Respondent, he could have proceeded to challenge the decision by way of judicial review proceedings to the High Court. He therefore would not have been without any legal remedy.

The Respondent is subject to judicial review both with regard to any alleged bias and also on the application of fair procedures at the hearing.

The Respondent’s decision-making functions and statutory powers as set out in the Act of 2005 are subject to judicial oversight and a decision is subject to appeal to the High Court on a point of law.

Finally, I note that GSOC was anxious to rebut in the strongest terms the scurrilous and egregious allegations levelled by the Complainant against AB.

They are anxious that it be noted that in their view:

These allegations are blatantly false and GSOC are of the view that they are malicious, and have been made in complete and utter bad faith by the Complainant.

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00067475-001  - The complaint is dismissed pursuant to section 22 of the Act of 2000 on the ground that it is misconceived.