WORKPLACE RELATIONS (MISCELLANEOUS PROVISIONS) ACT 2021

Red Hare

Am I I wrong or is this is something peculiar that has been shoehorned in?

https://www.workplacerelations.ie/en/complaints_disputes/adjudication/workplace-relations-miscellaneous-provisions-act-2021/

Red Hare

i tried a direct link to the the act but I was unable to link it successfully - new board.ie is harder for me to make links to

Red Hare

http://www.irishstatutebook.ie/eli/2021/act/29/enacted/en/print

Section 13 (2) is very peculiar "In carrying out the review referred to in subsection (1), the Minister shall consult with such other Ministers of the Government as he or she considers appropriate."

Going on the definitions, the Minister in this section is the Minister for Business and Enterprise.

In terms of the Employment Equality Act./ Pensions Act/ Equal Status Act is there a precedent? Should the Minister not not consult with Europe rather than his own colleagues?

Peregrinus

https://www.boards.ie/discussion/comment/117744985#Comment_117744985

This is a pretty standard review clause. The idea is that, after the changes have been in operation for a while (in this case, 12 months) the Minister is to report to the Oireachtas on how they are working. It's a very pragmatic, how-is-this-playing-out kind of review. Are we getting the outcomes we hoped for when we made these changes to the law? If not, why not? Do we need to do something different?

In this instance, the Minister is required to consult other Ministers because the law changes being made are to Acts which are administered by other Ministers and their Departments; they are the ones who will have best information as to how the law changes are working in practice. He is not confined to consulting them; he can consult anyone who might have a useful input to make - stakeholders, representative bodies, whoever.

I don't see why he would consult "Europe", though. "Europe" isn't involved in administering e.g. the Redundancy Payments Act 1967.

Red Hare

A lot, but not all of employment laws that the WRC are dealing with are transposed from European directives. So for example the Employment Equality Act 1998 is listed by Europe as Ireland transposition of the Gender Directive for example. However, the Workplace Relations Act of 2015 is not listed - yet it caused amendments to the Act of 1998 and these amendment acts are not listed by Europe in their website as Irelands transposition of the Gender Directive.

The Criminal and Civil (Miscellaneous Provisions) Act of 2020 is not listed and that affected Ireland transposition of the Directive further and now this new act of 2021 causes further changes.

I am not a legal person but I do not believe the Gender Directive Recast 2006 is plastic. So the 1998 Act is listed by Europe as Ireland transposition - imaging that the 1998 Act is a elephant made out of plasticine but now in 2021 with this new Act and the other changes such as the 2015 - it no longer looks like an elephant or any mammal of any gender but looks more a rough ball of something that has no resemblance to gender in anyone's imagination 😪

GM228

A lot, but not all of employment laws that the WRC are dealing with are transposed from European directives. So for example the Employment Equality Act 1998 is listed by Europe as Ireland transposition of the Gender Directive for example. However, the Workplace Relations Act of 2015 is not listed - yet it caused amendments to the Act of 1998 and these amendment acts are not listed by Europe in their website as Irelands transposition of the Gender Directive.

They would not list the 2015 Act because the 2015 Act does not transpose anything in the Directive, the 1998 Act as amended (this is key) does.

The Criminal and Civil (Miscellaneous Provisions) Act of 2020 is not listed and that affected Ireland transposition of the Directive further and now this new act of 2021 causes further changes.

Only Acts which specifically transpose specific provisions of a Directive are listed, how does the 2020 and 2021 Act's transpose the Directive?

Red Hare

The 2021 act amends the 1998 act. This is fact.

Red Hare

That the Minster for Business consults with other Ministers regarding the amendment of the act of 1998 Employment Equality further, is another fact

GM228

https://www.boards.ie/discussion/comment/117749409#Comment_117749409

Nobody has said otherwise.

https://www.boards.ie/discussion/comment/117749447#Comment_117749447

Eh, OK, but what are you getting at, I'm not sure what point you are trying to make?

Red Hare

Thanks for you input. Overall my point is that this Act has been shoe-horned into law, with very little consultation, if any, even though the directives of Europe recite the need to consult.

Ministers are often respondents in Equality cases in particular. It is not very equal if a respondent is consulting other respondents rather than all the parties recited in the Directives.

I am very disappointed that the Act is not strong on the issue of evidence under oath by leaving it to the discretion of the Adjudication Officer to take evidence under oath or not. In my opinion the Act should have made it mandatory for oral evidence to be taken under oath. Evidence/Proof are provided for in the Equality Directives of Europe. I believe this act fails to provide for the Equal treatment directives by enabling evidence to be given without an oath. This should not happen in a state that has a constitution that protects the good name of citizens.

In this state with our constitution, equality cases needs to cease oral evidence without an oath, in order to truly meet the requirements of the directives concerning proof. This is true for Ministers and for everyone.

GM228

Thanks for you input. Overall my point is that this Act has been shoe-horned into law, with very little consultation, if any, even though the directives of Europe recite the need to consult.

It has been brought into law to correct Constitutional issues addressed by the Supreme Court and does not go beyond anything identified by the Court so not sure what consultation (or with who) is required.

Where do the Directives state a need to consult on review anyway?

Ministers are often respondents in Equality cases in particular. It is not very equal if a respondent is consulting other respondents rather than all the parties recited in the Directives.

They are not consulting with each other in a capacity as respondent, rather as the law maker, and by the way when a Minister is a respondent in a case it is usually in title only, they are not the personal respondent.

I am very disappointed that the Act is not strong on the issue of evidence under oath by leaving it to the discretion of the Adjudication Officer to take evidence under oath or not. In my opinion the Act should have made it mandatory for oral evidence to be taken under oath. Evidence/Proof are provided for in the Equality Directives of Europe. I believe this act fails to provide for the Equal treatment directives by enabling evidence to be given without an oath. This should not happen in a state that has a constitution that protects the good name of citizens.

Where do the Equality Directives say evidence must be given under Oath?

In this state with our constitution, equality cases needs to cease oral evidence without an oath, in order to truly meet the requirements of the directives concerning proof. This is true for Ministers and for everyone.

Again how do we not meet any Directive requirements, you are concentrating too much on EU instruments, the 2021 Act came about as a result of Irish Constitutional issues and addresses those issues by bringing various Acts in line with out Constitution, whilst the European Commission has responsibilities for compliance in member states implementation and application of EU instruments they don't have a consultative legislative review remit, and certainly not when dealing with a states review of it's own laws to bring national legislation in line with it's Constitution, that is beyond the competence of the EC.

Red Hare

Thank you for your questions.

Recital 34 of Gender Directive; " In order to enhance the effective implementation of the principle of equal treatment, Member States should promote dialogue between the social partners and, within the framework of national practice, with non-governmental organisations."

A new law was brought into force that impacts on gender equality, but I cannot find any dialogue promoted by Irelanda on it. There seems be a shortage of dialogue on it before it was made into law. On review, if Ministers only are to be consulted in relation to this law, it is difficult to see how Ireland is promoting dialogue if the relevant dialogue only takes place around the cabinet table.

If this Ministerial review on this 2021 Act takes place, and in circumstances where Minister's are personally or directly involved as respondents in the WRC - for example by way of a ministerial order made in relation to a gender issue of a worker - then there is direct conflict of interest. The Minister for Business and Enterprise should not be allowed to consult Ministers but rather should do what recital 34 states that he/she should do.

It is not the case that the Directives say evidence must be given under oath. I have concern that Article 19 of the Gender directive is being impacted by further by this new piece of law. The new Act creates discretion for the Adjudication Officer to refuse to take evidence on oath. This discretion is going to have a lot of impact on how Ireland and it's cabinet of minister's are implementing Article 19.

"Article 19

Burden of proof

1.   Member States shall take such measures as are necessary, in accordance with their national judicial systems, to ensure that, when persons who consider themselves wronged because the principle of equal treatment has not been applied to them establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment.

2.   Paragraph 1 shall not prevent Member States from introducing rules of evidence which are more favourable to plaintiffs.

3.   Member States need not apply paragraph 1 to proceedings in which it is for the court or competent body to investigate the facts of the case.

4.   Paragraphs 1, 2 and 3 shall also apply to:

(a)

the situations covered by Article 141 of the Treaty and, insofar as discrimination based on sex is concerned, by Directives 92/85/EEC and 96/34/EC;

(b)

any civil or administrative procedure concerning the public or private sector which provides for means of redress under national law pursuant to the measures referred to in (a) with the exception of out-of-court procedures of a voluntary nature or provided for in national law.

5.   This Article shall not apply to criminal procedures, unless otherwise provided by the Member States."

GM228

Recital 34 of Gender Directive; " In order to enhance the effective implementation of the principle of equal treatment, Member States should promote dialogue between the social partners and, within the framework of national practice, with non-governmental organisations."

A new law was brought into force that impacts on gender equality, but I cannot find any dialogue promoted by Irelanda on it. There seems be a shortage of dialogue on it before it was made into law. On review, if Ministers only are to be consulted in relation to this law, it is difficult to see how Ireland is promoting dialogue if the relevant dialogue only takes place around the cabinet table.

This would be in relation to Article 22 (Article 21 is similar) of the Directive that requires the state to "encourage dialogue with appropriate non-governmental organisations which have, in accordance with their national law and practice, a legitimate interest in contributing to the fight against discrimination on grounds of sex with a view to promoting the principle of equal treatment".

The key part is this must be done in accordance with national law and practice (i.e our normal way, not Europe's), and this was done by way of the Citizen's Assembly, and they released their resulting report just two months ago on the matter:-

http://citizensassembly.ie/en/about-the-citizens-assembly/report-of-the-citizens-assembly-on-gender-equality.pdf

If this Ministerial review on this 2021 Act takes place, and in circumstances where Minister's are personally or directly involved as respondents in the WRC - for example by way of a ministerial order made in relation to a gender issue of a worker - then there is direct conflict of interest. The Minister for Business and Enterprise should not be allowed to consult Ministers but rather should do what recital 34 states that he/she should do.

What Article 22 requires has been complied with, it deals with the promotion of the principle of equal treatment, not the statutory review of national law, that is a national competence measure undertaken by Ministers and as already pointed out previously by @Peregrinus is pretty standard. The review is simply one of the amendments made to law to bring the various Acts into line with the Constitution, not one of any particular case before the WRC so I'm not sure how any conflict of interests apply, someone other than the Ministers (or the Superior Courts) has no statutory authority to review our laws.

It is not the case that the Directives say evidence must be given under oath. I have concern that Article 19 of the Gender directive is being impacted by further by this new piece of law. The new Act creates discretion for the Adjudication Officer to refuse to take evidence on oath. This discretion is going to have a lot of impact on how Ireland and it's cabinet of minister's are implementing Article 19.

"Article 19

Burden of proof

1.   Member States shall take such measures as are necessary, in accordance with their national judicial systems, to ensure that, when persons who consider themselves wronged because the principle of equal treatment has not been applied to them establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment.

2.   Paragraph 1 shall not prevent Member States from introducing rules of evidence which are more favourable to plaintiffs.

3.   Member States need not apply paragraph 1 to proceedings in which it is for the court or competent body to investigate the facts of the case.

4.   Paragraphs 1, 2 and 3 shall also apply to:

(a)

the situations covered by Article 141 of the Treaty and, insofar as discrimination based on sex is concerned, by Directives 92/85/EEC and 96/34/EC;

(b)

any civil or administrative procedure concerning the public or private sector which provides for means of redress under national law pursuant to the measures referred to in (a) with the exception of out-of-court procedures of a voluntary nature or provided for in national law.

5.   This Article shall not apply to criminal procedures, unless otherwise provided by the Member States."

How is Article 19 not being complied with?

Red Hare

Thank you for that information and the link to the citizens assembly- it is very interesting.

Ireland bound Article 19 (1) into Section 85A of the Employment Equality Act 1998 (when it revised it by means of the Equality Act 2004. The new law of 2021 will make things worse in Section 85A. I'm afraid that f I explain the details to you, a mod will press a muzzle button. I copy 85A below - I hope you can see what I mean?

F152[Burden of

proof.

85A.—(1) Where in any proceedings facts are established by or on behalf of a

complainant from which it may be presumed that there has been discrimination in

relation to him or her, it is for the respondent to prove the contrary.

(2) This section is without prejudice to any other enactment or rule of law in relation

to the burden of proof in any proceedings which may be more favourable to a

complainant.

(3) Where, in any proceedings arising from a reference of a matter by the Authority

to the F153[Director General of the Workplace Relations Commission] under section

85(1), facts are established by or on behalf of the Authority from which it may be

presumed that an action or a failure mentioned in a paragraph of that provision has

occurred, it is for the respondent to prove the contrary.

(4) In this section ‘discrimination’ includes—

(a) indirect discrimination,

(b) victimisation,

(c) harassment or sexual harassment,

(d) the inclusion in a collective agreement to which section 9 applies of a provision

which, by virtue of that section, is null and void.

(5) The European Communities (Burden of Proof in Gender Discrimination Cases)

Regulations 2001 (S.I. No. 337 of 2001), in so far as they relate to proceedings under

this Act, are revoked.]

GM228

https://www.boards.ie/discussion/comment/117752832#Comment_117752832

So they implemented the reverse burden of proof, fair enough, but, how does the 2021 amendments create a detriment to the plaintiff, it is still for the respondent to prove the contrary to any fact the plaintiff has established?

Red Hare

As you stated earlier GM228, Ireland need not have put the burden of proof on the complainant - but it did.

https://www.boards.ie/discussion/comment/117752879#Comment_117752879

WRC and Labour Court case laws show that their practice is that If complainant cannot establish facts to raise a presumption of discrimination - it means that the respondent is not asked to prove the contrary. They are only asked to do that if the complainant is successful in shifting the burden to the respondent.

By putting the burden on the complainant, and by not allowing evidence to be taken under oath, it made it more difficult for the complainant and not less difficult. So when a complainant complains, the respondent just lies because it is allowed to, consequently the complainant is unable to shift the burden and therefore the respondent does not have to prove contrary. For example - harassment = X complains that y called her/him a "****" which was offensive or intimidating on gender ground and y responds no that y did not call X a **** . Therefore X is unable to shift the burden to Y. If the burden is shifted to Y then s/he has to prove that **** was not offended or intimidated.

As Ireland decided not to opt for the Article 19(3) option in relation to the WRC in 2015 , but instead to trigger Article 19(1) it then caused itself have to ensure" a standard of proof that is very difficult to achieve for the complainant without the opportunity of evidence under oath.

The new law of 2021 has failed to improve the situation because it give the Adjudicator discretion to refuse. So while the revisions to the Employment Equality Act in 2004 and 2015 make the rules less favourable to the complainant, the new law in 2021 fails to make the standards that Ireland triggered in Article 19(1) and that the WRC never ensured, on behalf of Ireland.

In this, I am disappointed by the lack of discussion before the act was made into law and disappointed by the role of the cabinet.

Ireland really should seek clarity from the European Court of Justice on this as provided for in European law rather than wait for someone to take a gender discrimination case to the European Court of Human Rights.

Red Hare

I am grateful to and thank you to GM228 and Peregrinus and Boards.ie for being the devils advocate😀

GM228

WRC and Labour Court case laws show that their practice is that If complainant cannot establish facts to raise a presumption of discrimination - it means that the respondent is not asked to prove the contrary. They are only asked to do that if the complainant is successful in shifting the burden to the respondent.

This is pretty standard in any judicial or quasi-judicial setting weather it be the WRC or a court of law, it is for the complainant/plaintiff to establish what they claim, it is never for the respondent/defendant to establish the contrary unless there is a reverse burden provision provided like as in this case. This is in line with normal procedures when it comes to the administration of justice.

By putting the burden on the complainant, and by not allowing evidence to be taken under oath, it made it more difficult for the complainant and not less difficult. So when a complainant complains, the respondent just lies because it is allowed to, consequently the complainant is unable to shift the burden and therefore the respondent does not have to prove contrary. For example - harassment = X complains that y called her/him a "****" which was offensive or intimidating on gender ground and y responds no that y did not call X a **** . Therefore X is unable to shift the burden to Y. If the burden is shifted to Y then s/he has to prove that **** was not offended or intimidated.

Again this is pretty normal, in fact to have it any other way would most likely be considered unconstitutional, against fair procedures etc,

That aside, why are you so hung up on the Oath? You do not need to give any evidence to the WRC on Oath to establish any facts, the only real benefit of an oath is a criminal offence can be committed when you knowingly give false information, establishing facts and committing an offence when giving evidence are two separate things, but that aside it could be possible to commit an offence at the WRC by giving false information when giving any oral answer to the adjudication officer to which you are required to make by, under, or in pursuance of any of the relevant enactments.

As Ireland decided not to opt for the Article 19(3) option in relation to the WRC in 2015 , but instead to trigger Article 19(1) it then caused itself have to ensure" a standard of proof that is very difficult to achieve for the complainant without the opportunity of evidence under oath.

The new law of 2021 has failed to improve the situation because it give the Adjudicator discretion to refuse. So while the revisions to the Employment Equality Act in 2004 and 2015 make the rules less favorable to the complainant, the new law in 2021 fails to make the standards that Ireland triggered in Article 19(1) and that the WRC never ensured, on behalf of Ireland.

But the State has adopted Article 19 as it is intended by reversing the proof to the respondent once the claimant has established the facts, no where does the EU Directive require Article 19 to be complied with by way of evidence given under oath, you are trying to read in a requirement which does not exist.

In this, I am disappointed by the lack of discussion before the act was made into law and disappointed by the role of the cabinet.

In my opinion, there was not much need for any discussion and the role of the cabinet was simply amending the law in line with the decision of the Supreme Court, who by the way noted that it would not be appropriate for an Oath to be mandatory in all circumstances.

Ireland really should seek clarity from the European Court of Justice on this as provided for in European law rather than wait for someone to take a gender discrimination case to the European Court of Human Rights.

Both the ECJ and the ECtHR will not interfere with national rules in relation to proofs of evidence, the ECtHR has specifically held so and the matter is outside the jurisdiction of the ECJ.

Red Hare

Thanks for that - I think I will be able to answer your questions, but I wish to ask you a question first to get your opinion. - Is it not the case that someone is less likely to lie when giving evidence under oath?

GM228

https://www.boards.ie/discussion/comment/117756927#Comment_117756927

Yes, that can be the case, but, Article 19 is not about dealing with evidential proofs or creating a right to evidence on oath, it is simply one of creating a reverse burden and it has been applied correctly in our national legislation.

Red Hare

Thank you GM228 for teasing out some issues I have.

2008 to 2015 was crisis. For example,Ireland cut from its Employment Equality Act of 1998;a Tribunal, inspectors and an Authority among other provisions in this act .

In 2015 ,the WRC was an instrument of rebuilding to employment laws ranging from European recast directives on gender, to laws made before " The Flood."

I'm working on your earlier questions to me with a view to answering them. 🐇

GM228

https://www.boards.ie/discussion/comment/117768663#Comment_117768663

The work of the Equality Authority and Equality Tribunal didn't just disappear overnight though or indeed at all, Ireland didn't "cut" them, they were reformed and became (part of) the IHREC and WRC respectively with greater powers and functions than previously.

Red Hare

https://www.boards.ie/discussion/comment/117768742#Comment_117768742

That is the appearance that was created. if you look at the revised Act there are gaps where cuts were made and not provided for https://www.lawreform.ie/_fileupload/RevisedActs/WithAnnotations/EN_ACT_1998_0021.PDF.

In numerous sections the " Authority" remains cited in the revised act and not IHREC. If IHREC was truly replacing the Authority in those sections , then IHREC would be stated in the revised act. For example the "Authority" has functions in relation to enforcement. In my own case I am having ongoing difficulty in having an Equality Tribunal decision enforced. IHREC will not assist me. Under the law governing IHREC's, a complainant has to satisfy a matrix that is written in the Act http://www.irishstatutebook.ie/eli/2014/act/25/section/40/enacted/en/html#sec40. IHREC have twice turned me down because it says that as I represented myself at the Equality Tribunal to get the decision then I am able to represent myself and do not qualify for its assistance.

I need assistance because the Circuit Court has its own statutory instrument on Employment Equality that requires the files of the Tribunal. The WRC replaced the Tribunal but they won't give me the files that the circuit court requires.

I have gone to solicitors about my case, but because the Act has evolved to be so complex, no solicitor I went to could understand or advise me. For example I was told by a solicitor that it is the district court who enforces the tribunal decisions that I am wrong and they are right - this is no use to me. I went to IHREC seeking information on this - IHREC also informed me that it is the district court. IHREC will not provide assistance and its gives wrong information all the time via its website and thought its information services.

IHREC copied and pasted information from the Equality Authorities website onto its own website without updating the information to reflect the edits that Ireland made to the law. Anytime I approached IHREC seeking accurate information they refused to give it to me and said I had to seek legal assistance from it even though it deems me not qualified to receive assistance from it.

At this stage, without enforcement of the Tribunal's decision over these past years, my life is being damaged to a big extent.

The Court of Human Rights might admit me and give me the remedy I seek - ie enforcement of the Equality Tribunal's decision.

Red Hare

To get back to the Workplace Relations ( Misc ) Act of 2021. This was recently signed into law by the President - under pressure - at break neck speed. It was knee jerk reaction to the Supreme Court's judgement on the Zalewski Case.

But the Zalewski case under the Unfair Dismissal's Act ( Irish law ) and not European law like the Employment Equality Act.

Over the years, the Employment Equality Act 1998 became a leaky bucket and now the Government, reacting to something under the Unfair Dismissal Act at the Supreme Court have pressurised the President into signing new law that affect a complainants rights under the Gender Directive ( recast) of 2006 without fixing the hole or holes in that bucket, dear Henry.

"There's a hole in the bucket, dear Liza, dear Liza,

There's a hole in the bucket, dear Liza, a hole.

So fix it dear Henry, dear Henry, dear Henry,

So fix it dear Henry, dear Henry, fix it.

With what should I fix it, dear Liza, dear Liza,

With what should I fix it, dear Liza, with what?

With straw, dear Henry, dear Henry, dear Henry,

With straw, dear Henry, dear Henry, with straw.

But the straw is too long, dear Liza, dear Liza,

The straw is too long, dear Liza, too long.

So cut it dear Henry, dear Henry, dear Henry,

So cut it dear Henry, dear Henry, cut it!

With what should I cut it, dear Liza, dear Liza,

With what should I cut it, dear Liza, with what?

With an axe, dear Henry, dear Henry, dear Henry,

With an axe, dear Henry, an axe.

But the axe is too dull, dear Liza, dear Liza,

The axe is too dull, dear Liza, too dull.

So, sharpen it, dear Henry, dear Henry, dear Henry,

So sharpen it dear Henry, dear Henry, sharpen it!

With what should I sharpen it, dear Liza, dear Liza,

With what should I sharpen, dear Liza, with what?

Use the stone, dear Henry, dear Henry, dear Henry,

Use the stone, dear Henry, dear Henry, the stone.

But the stone is too dry, dear Liza, dear Liza,

The stone is too dry, dear Liza, too dry.

So wet it, dear Henry, dear Henry, dear Henry,

So wet it dear Henry, dear Henry, wet it.

With what should I wet it, dear Liza, dear Liza,

With what should I wet it, dear Liza, with what?

With water, dear Henry, dear Henry, dear Henry,

With water, dear Henry, dear Henry, water.

With what should I carry it, dear Liza, dear Liza,

With what should I carry it dear Liza, with what?

Use the bucket dear Henry, dear Henry, dear Henry,

Use the bucket, dear Henry, dear Henry, the bucket!

There's a hole in the bucket, dear Liza, dear Liza,

There's a hole in the bucket, dear Liza, a hole.

Songwriters: Harry Belafonte / Odetta Felious Gordon

https://www.youtube.com/watch?v=xVAvMIhvqfk

😔

Red Hare

https://www.gov.ie/en/press-release/80407-minister-receives-orders-of-the-supreme-court-in-the-zalewski-case/

The Minister for Business, Employment and Retail, Damien English TD, has today said that the government will introduce legislative amendments without delay to enable the Workplace Relations Commission to continue to discharge its statutory functions in line with the Constitution.

Minister English today received the Orders of the Supreme Court in the ‘Zalewski Case’ whereby the State successfully defended the case - Zalewski v. Adjudication Officer and the Workplace Relations Commission (WRC), Ireland, and the Attorney General.

The Supreme Court held that the exercise of powers by Adjudication Officers pursuant to part 4 of the Workplace Relations Act, 2015 as amended (‘the 2015 Act’) was the administration of justice under Article 34 of the Constitution. The administration of justice, in accordance with Article 34, is normally preserved for the Courts.

However, the Supreme Court found that the administration of justice as carried out by the adjudication service is permissible within the meaning of Article 37 of the Constitution as the administration of justice was limited.

In responding to this ruling Minister English said:

"The WRC's adjudication service is an integral part of ensuring that our extensive employment and equality rights are afforded to the residents of Ireland.

"The decision of the Supreme Court means that the adjudication service will continue to deliver significant benefits to both employers and employees, enhanced by amending legislation that I will bring forward on foot of the judgement. It is crucial that the WRC can hear cases and make rulings to build on its track record of delivering a fair, simple, cost effective and user-friendly service for employers and employees in the State.

"As a result of this Supreme Court ruling, the government working closely with the legislature, will bring forward some procedural amendments to the law to enable the WRC to continue to discharge its statutory functions in line with the Constitution. Such amendments will allow for hearings in public and the administration of oaths in WRC hearings.

"I acknowledge that the ruling of the Supreme Court may impact some cases currently before the WRC. My department is moving swiftly on this matter and is currently drafting emergency legislation to be introduced as a matter of urgency in the coming weeks. I do believe these procedural changes will ensure continued improvement of the adjudication services."

The legislation currently under preparation will provide for elements included in the judgement such as the ability for evidence to be provided on oath/affirmation and power to prosecute for giving false evidence; and for the generality of hearings to be heard in public, save those that may, in circumstances to be defined, heard in private.

Notes

On 6 April 2021 the Supreme Court delivered judgment in Zalewski v. Adjudication Officer and the Workplace Relations Commission, Ireland, and the Attorney General in which the majority held that the exercise of powers by Adjudication Officers pursuant to the Workplace Relations Act, 2015 as amended (‘the 2015 Act’) was the administration of justice within the meaning of Article 37 of the Constitution. In doing so, it rejected a challenge to the validity of certain sections of the 2015 Act and section 8 of the Unfair Dismissals Act 1977 as amended.

However, separately the Supreme Court also determined that two aspects of the 2015 Act are incompatible with the Constitution.

First, it held that section 41(13) of the 2015 Act, which requires all hearings before an Adjudication Officer to be held otherwise than in public is inconsistent with the Constitution.

Second, it has held that the absence of the provision for the administration of an oath, or any possibility of punishment for giving false evidence is inconsistent with the Constitution.

The WRC has survived the Constitutional challenge presented by the appellant in the case. However, in its judgement as set out above the Court outlines its understanding that the WRC is in fact administering justice, albeit in a manner permissible under the Constitution. 

This finding that the WRC is administering justice will result in certain consequential procedural amendments being required in law to enable the WRC to continue to discharge its statutory functions in conformity with the Constitution. These include hearings in public and the administration of oaths.

Therefore, this legislation will provide for elements included in the judgement such as the ability for evidence to be provided on oath/affirmation and power to prosecute for perjury, and for the generality of hearings to be heard in public, save those that may, in circumstances to be defined, heard in private.

A number of adjournments to cases due to be held in the WRC over the coming weeks may be necessary in advance of the enactment of emergency legislation which is currently being prepared by DETE to give effect to the terms of the ruling.

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Red Hare

In relation to Victimisation under Section 74 of the Act of 1998 ( The Bucket with the holes) , the Supreme Court has found that " under the 1998 Act , a person may be respondent even if not an employer" ( Paragraph 9.7 of Supreme Court Judgment in The Minister for Education & Skills and Labour Court and Anne Boyle and Hillside Park Pre-School.

In my circumstances, my employer is victimising me repeatedly and I cannot get the enforcement of the Equality Tribunal due to the bucket having a hole in it. Government have now gone and fixed this other bucket at speed in an unfair dismissal case under Irish law ( Unfair Dismissals Act) without fixing the hole in European bucket.

I wonder who are the persons who are responsible for the victimisation, of a gender discrimination-type victimisation, that I am receiving from my employers who are public authorities in their own right ? Is the Government making the President a potential respondent under the EE Act in complainant's cases with this law ? Do they have the answer? Do they care?

I started this thread because I thought the Minister was wrong to do this without the consultation that the Gender Directive requires. Is the Minister not acting risky with the President and making him a respondent under the Directive of 2006 who can be brought to account in the WRC under the Act of 1998 ( the leaky bucket) as a respondent? If this happens, and the Adjudication Officer refuses evidence to be taken under oath - what happens next?

Red Hare

If I complain that my employers ( the public authorities) are victimising me and that the WRC, the Government, the president are responsible because I can't get the Equality Tribunal decision enforced because the WRC won't give me the files, nor will the " Authority" help me to get the files, and the Adjudication Officer has been given the right in law to refuse evidence under oath - this is totally contrary to the Gender Directive. This is happening because there is a hole in Henry's bucket that he won't fix.

Red Hare

If I do this, then will the President have the same solicitor as the Government Ministers, and the WRC and Labour Court ?

GM228

In numerous sections the " Authority" remains cited in the revised act and not IHREC. If IHREC was truly replacing the Authority in those sections , then IHREC would be stated in the revised act.

And it always will be because any mention of Authority/Equality Authority or any other way it is described in the Act (or indeed any Act) is construed as meaning the IHREC.

I was told by a solicitor that it is the district court who enforces the tribunal decisions that I am wrong and they are right - this is no use to me. I went to IHREC seeking information on this - IHREC also informed me that it is the district court. IHREC will not provide assistance and its gives wrong information all the time via its website and thought its information services.

Decisions of the Equality Authority are enforced by the CC, not the DC, the 2015 amendments did not apply to cases applied to the EA before then so the law at the time (enforcement by the CC) applies.

The Court of Human Rights might admit me and give me the remedy I seek - ie enforcement of the Equality Tribunal's decision.

I think I have said it before, but will say it again, the ECtHR does not "enforce" decisions of national courts. That is not a function of the ECtHR.

To get back to the Workplace Relations ( Misc ) Act of 2021. This was recently signed into law by the President - under pressure - at break neck speed. It was knee jerk reaction to the Supreme Court's judgement on the Zalewski Case.

But the Zalewski case under the Unfair Dismissal's Act ( Irish law ) and not European law like the Employment Equality Act.

Over the years, the Employment Equality Act 1998 became a leaky bucket and now the Government, reacting to something under the Unfair Dismissal Act at the Supreme Court have pressurised the President into signing new law that affect a complainants rights under the Gender Directive ( recast) of 2006 without fixing the hole or holes in that bucket, dear Henry.

It was not a knee jerk reaction, it was correctly correcting out law to be in line with our Constitution and did not go any further than what the SC held.

With respects, you don't really know what you are talking about in relation to any relation between Irish law and an EU Directive, that has absolutely nothing to do with an EU Directive.

So the Government pressurised the President? Really? The Bill passed the Oireachtas on the 15th July and was sent to the President and signed into law on the 22nd, the Bill must be signed into law on the 5th, 6th or 7th day, so I'm not sure how he signed it under pressure at break neck speed?

I started this thread because I thought the Minister was wrong to do this without the consultation that the Gender Directive requires. Is the Minister not acting risky with the President and making him a respondent under the Directive of 2006 who can be brought to account in the WRC under the Act of 1998 ( the leaky bucket) as a respondent?

Both your queries here have been addressed both in this thread and other threads you have started on the matter. There is no requirement to have any consultation under the Directive with regards to legislative amendments, and the President can not be a respondent in a case.

the Adjudication Officer has been given the right in law to refuse evidence under oath - this is totally contrary to the Gender Directive

Once again a requirement to give evidence under Oath is not a part of the Directive, therefore the ability to refuse to take evidence under Oath is not contrary to the Directive, you are trying to read something into the Directive which does not exist, matters regarding evidential proofs are of a national competence, not an EU one.

Red Hare

I would never ask the European Court of Human Rights to interfere with Irish law- I would be merely asking them for the right to an effective remedy and freedom from discrimination based on sex.

Any other threads that your refer to are concerning other issues. Most flowed from the lack of remedy but are not in themselves that issue.

Red Hare

You are correct to state that " matters regarding evidential proofs are of a national competence, not an EU one. " As you pointed out earlier, and with insight, = the Gender Directive of Europe allowed each state the freedom to choose their own path under Article ."

It is common case that Ireland chose a path that triggered subsection (1) of 19th Article on the Burden of Proof when it chose to not to take the option at this Article's subsection (3) and triggered a mandatory obligation to ensure something that the Zalewski case proves beyond all doubt that cannot be ensured.

The knee Jerk reaction Act of 2021 does not ensure this. The Zalewski case has thankfully brought light to a very dark corner of Ireland's adjudication of employment cases that illuminates how European directives are getting the same treatment as Irish unfair dismissal law cases and had the Act of 2021 involved the social dialogue required by the Gender Directive then there would have been opportunity to inform the Minister and President. Instead we had the President with all the laws that the Government asked him to sign into law at the end of June at speed, objecting in public about this.

It is not a case that I am anti government or Ireland. Far from it. I am a native born European ( irelanda) who is living in a state called Ireland / Eireann but cannot find the remedies I was granted under this directive which I used to make my complaint that produced the awards of these remedies.

That you are being a devils advocate is helpful. It is becoming clearer to me that there will never be a remedy in Ireland even though and award and orders were granted as remedy. And therefore the only avenue left open to me is the European Court of Human Rights.

GM228

https://www.boards.ie/discussion/comment/117773508#Comment_117773508

Those effective remedies are already in Irish law and the ECtHR does not grant you the rights you seek.

https://www.boards.ie/discussion/comment/117773686#Comment_117773686

You are going around and around in circles, you really need to re-read the Directive, it does not require there to be any form of social dialogue on the change of law, nor does it require there to be an Oath.

So let me get this straight, you want to go to the ECtHR to enforce something you think you are entitled to under an EU Directive? That is impossible to do.

Red Hare

https://www.boards.ie/discussion/comment/117773758#Comment_117773758

No.

The ECtHR is there to protect my right to an effective remedy. I am living proof that the remedies that were awarded to me years ago under EU directives, could not be realised during these years of endeavour to get enforcement of the remedies awarded under the same directives.

I am not going ask the ECtHR to enforce anything. i will ask them to protect my right to an effective remedy and my right to have freedom from discrimination by public authorities based on my sex.

Yes you are right that I am going around and around in circles with Ireland and the Directive. The refusal on social dialogue to make oaths mandatory in my particular case triggered me to realise that I needed to apply to the ECtHR rather than continue in circles.

Red Hare

ARTICLE 13

Right to an effective remedy

Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.

GM228

https://www.boards.ie/discussion/comment/117773871#Comment_117773871

Well, first off before you could even take a case to the ECtHR you must first exhaust the High Court/Supreme Court here, so it's a very long road to the ECtHR.

Secondly with regards to Article 13, you can not take an Article 13 case alone to the ECtHR, it must be in conjunction with what is known as another arguable claim brought before the ECtHR., it is even more important to note that Article 13 affords no particular form of remedy.

Thirdly, as I have already stated, the ECtHR will not entertain a case based on proofs of evidence, they have specifically held that the ECHR requires no adoption of any particular rules of evidence and that is a matter purely for national states, not them.

Finally, all that asides, the ECtHR would not make a determination on the rights or wrongs of the states laws (unless they didn't implement adequate protections against discrimination based on sex - which they have) because of their margin of appreciation (or margin of state discretion) doctrine.

All of the above is the well settled jurisprudence of the ECtHR.

Red Hare

The proof of evidence issues that started me on this thread would not necessarily feature in my application to ECtHR - this will be about lack of remedy.

But for, I cannot get enforcement of the Equality Tribunal orders in which I met the burden of proof, my employers would not be continuing in their gender discrimination and victimisation and there would be no need for me to have to climb the burden of proof barrier again, in the WRC.

I do not need to go to the High Court or Supreme Court - the exhaustion occurs in the inability to enforce the Equality Tribunal - I have being round in circles for years. I cannot get the remedy that the Tribunal ordered.

Ireland not have several cases taken successfully against it to the ECtHR about cases taking too long, and the lack of a remedy?

I am going to read up on what you say about " (unless they didn't implement adequate protections against discrimination based on sex - which they have) because of their margin of appreciation (or margin of state discretion) doctrine." I will let you know if I can find out what this means. Thank you GM - you like the cookie monster in your photo! I am a bit fan of cookie monsters 😎

Red Hare

That the WRC, for the past 2 years are withholding the files of the Equality Tribunal which the Circuit Court require to enforce the remedy ordered by Tribunal, is conduct that cannot be excused-away by Ireland arguing margin of appreciation/ state discretion doctrine.

Because ( A) the orders made by the Equality Tribunal were designed to cease explicit victimisation - ie; my employers were punishing me directly or explicitly for taking a gender discrimination complaint to the Tribunal, and

(B) this enforcement cannot take place until the WRC gives me the files, and

(C) that my employers are repeating the victimising conduct and failing to comply with the orders.

I consider that my complaint to ECtHR is also in conjunction with Article 10 - Freedom of Expression. By being victimised explicitly for taking a gender complaint to Tribunal this is an unreasonable interference with my right and Freedom to write a complaint of gender discrimination go gender discrimination to the body appointed to look into gender complaints. 🤐

GM228

You absolutely do have to go through the High Court and Supreme Court first before you can take a case to the ECtHR, you can't go from a Quasi Judicial body or lower court straight to them, you have to go to the highest level in the state first.

Also the fact of you having to "find out what this means" in relation to certain things and other queries you have made just goes to show you really don't understand what you are suggesting/trying to do/understand at national level, EU level or under the CoE mechanisms.

If you really insist on eventually attempting going the route you seem to want to you need to find yourself a very good solicitor/legal advisor, there are those of us here who actually know/specialise in the law and know what we are talking about, but it is likely you would rather be told by a real person rather than an anonymous internet user, and rightly so of course.

Best of luck.

Red Hare

https://www.boards.ie/discussion/comment/117777103#Comment_117777103

Airey V Ireland in the European Court of Human Rights in 1979 settled it in International Human law that you do not absolutely have to go to the High Court and Supreme Court.

Your middle paragraph is completely lost on me, I can't read it properly, can you state it again?

Even the President can be anonymous on boards and yet be a real person. Unlike the internet platforms that the bodies and named in the Act of 1998 uses, I have actually never encountered a Phish or Phishing on Boards.ie. The Salmon of Knowledge must be Fish not a Phish. I can apply to the Court without a solicitor -as IHREC informed me - if I represented myself in the Equality Tribunal I can represent myself to the European Court of Human Rights, and they must have more knowledge on Human Rights than me who as you opine " really don't understand what you are suggesting/trying to do/understand at national level, EU level or under the CoE mechanisms.

Good luck to you too. It is a sad fact that Ireland has forgotten Airey V Ireland 😪

GM228

I have not forgotten Airey, it is not even the seminal case on the issue.

You should familiarise yourself with the facts of Airey vs Ireland before stating that you can jump the line straight to the ECtHR, the applicant in that case Mrs. Johanna Airey was refused access to the High Court to address her issues around judicial separation, in others words she was refused leave of court to take a judicial review, in that case she had exhausted all avenues available at domestic level because of the lack of effective access to the High Court, and so the ECtHR was the next step. All that aside the case concerned a breach of 4 Articles of the ECHR (including Article 13 - effective remedy), as I have already stated you can't take a case to the ECtHR solely on the basis of an Article 13 claim.

It is enshrined in the ECHR that you must exhaust all domestic options in accordance with international law (there are very few exemptions).

Perhaps it was wrong of me to state you must go through the HC or SC simpliciter, it is more correct that you have to attempt to take a case via the HC/SC, in other words you must seek a JR first.

Red Hare

https://www.boards.ie/discussion/comment/117777628#Comment_117777628

No.

The circuit court is the court that enforces the Equality Tribunal- not High Court.

The judgment of Airey v Ireland creates no stipulation about having to apply for a Judicial Review when someone has spent years going around in ever decreasing circles.

Judicial Review has a 3 month time limit - not 6 year time limit, so I am years out of time on Irelands failure to provide the opportunity for an effective remedy on the orders of the Tribunal.

The remedies in Judicial Review are limited. Mandamus does not lie against the crown/Ministerial employers. certiorari against cuts to the acts of government under the gender directive are not permitted.😪

If you have any genuine ideas on how I could get remedy granted by The Tribunal by Judicial review within the rules of the court i would love to find out☘️

GM228

No.

The circuit court is the court that enforces the Equality Tribunal- not High Court.

I never stated or suggested the HC enforces an ET decision, in fact I already stated it is the CC despite you being told by a solicitor and the IHREC that it was the DC.

The judgment of Airey v Ireland creates no stipulation about having to apply for a Judicial Review when someone has spent years going around in ever decreasing circles.

Indeed the judgement speaks of no stipulation, that stipulation is specifically written into Article 35 of the ECHR and there is plenty of other case law on the issue from the ECtHR, the question will always be have you exhausted all national measures before attempting to take a case to the ECtHR, have you? I fear not, my guess is that you seek a certified copy of the original decision of the EA from the WRC and they either can't or won't provide one (am I correct?), in which case that is a decision made by a quasi judicial office which can then be JR'd.

The question of complying with the requirements of Article 35 was put before the ECtHR in the Airey case and because she could not get access to the HC for JR she had met the requirements of Article 35, the case did not say (as you claim) that she did not have to exhaust all national remedies before taking a case, quite the opposite, rather it held she had exhausted all national remedies given the facts of the case, in fact now that I think of it from my legal studies the issue around not being able to access the HC for a JR was to do with financial inability and the lack of free legal aid, as a direct result of the Airey case the first Scheme of Civil Legal Aid and Advice was introduced and the first Legal Aid Board appointed, it was later given statutory footing when the Civil Legal Aid Act 1995 was enacted.

Judicial Review has a 3 month time limit - not 6 year time limit, so I am years out of time on Irelands failure to provide the opportunity for an effective remedy on the orders of the Tribunal.

That would be in relation to your original decision I'm sure, but that would not be the subject of your JR.

The remedies in Judicial Review are limited. Mandamus does not lie against the crown/Ministerial employers. certiorari against cuts to the acts of government under the gender directive are not permitted.😪

If you have any genuine ideas on how I could get remedy granted by The Tribunal by Judicial review within the rules of the court i would love to find out☘️

Well it depends on if my guess above regarding receiving certified copies is correct, a potential JR could be centred around the procedure of the WRC (and any related or non existing statutory law surrounding your issue) and any decision (if one so exists) to not release the certified copy, an argument can be made about the vindication of ones rights, I'm most likely bordering on the legal advice rule of Boards here, but, needless to say there are avenues open for exploration before anyone heads to the ECtHR, but I'll reiterate what I said earlier, get a lawyer, a good one, a very good one, a brilliant one in fact who specialises in these matters, you will need one.

Red Hare

It is not that the WRC are withholding the certified copy of the decision ( and yes they have withheld this too) but they are withholding the pleadings also. They are withholding the written reply from the respondent with the specific date-mark received by by the Equality Tribunal on which the Equality Officer made a crucial finding. This date marked document is needed in particular. WRC are also withholding all submissions made by the respondent, the letters from the Tribunal's registrar to the Respondent about a video/DVD. I need all of those. And also all the boxes of documents that were brought into the 2nd day of the hearing by the Respondent, and the submissions that were sent in afterwards. I would also need them stamped too because, my employers dispute every thing.

My employers , as persons affected by the orders of the Tribunal have failed over the years to comply with any iota of the orders made.

They produced documents that are contrary to the orders, and are distributing these documents to others in order to cause others to victimise me and gender discriminate against me ( and against the girl that is in the video/dvd too). So now they are distributing these documents to the High Court and trying to procure that Court to victimise and gender discriminate too.

If this happens , hopefully if the WRC ever stop withholding the Files of the Tribunal , I will ask the Circuit Court to enforce the Tribunal's orders on any High Court Judgment that is potentially procured against me, using the documents that fail to comply with the orders made by the Equality Officer to the Respondent.

I am not sure that any lawyer can help me with this macro malfunction, or if there was such a lawyer, who could afford a case that has gone around in circles through so many courts . 🙃🌎️

Red Hare

AN ACT TO MAKE PROVISION IN THE INTERESTS OF THE COMMON GOOD FOR THE EDUCATION OF EVERY PERSON IN THE STATE, INCLUDING ANY PERSON WITH A DISABILITY OR WHO HAS OTHER SPECIAL EDUCATIONAL NEEDS, AND TO PROVIDE GENERALLY FOR PRIMARY, POST-PRIMARY, ADULT AND CONTINUING EDUCATION AND VOCATIONAL EDUCATION AND TRAINING; TO ENSURE THAT THE EDUCATION SYSTEM IS ACCOUNTABLE TO STUDENTS, THEIR PARENTS AND THE STATE FOR THE EDUCATION PROVIDED, RESPECTS THE DIVERSITY OF VALUES, BELIEFS, LANGUAGES AND TRADITIONS IN IRISH SOCIETY AND IS CONDUCTED IN A SPIRIT OF PARTNERSHIP BETWEEN SCHOOLS, PATRONS, STUDENTS, PARENTS, TEACHERS AND OTHER SCHOOL STAFF, THE COMMUNITY SERVED BY THE SCHOOL AND THE STATE; TO PROVIDE FOR THE RECOGNITION AND FUNDING OF SCHOOLS AND THEIR MANAGEMENT THROUGH BOARDS OF MANAGEMENT; TO PROVIDE FOR AN INSPECTORATE OF SCHOOLS; TO PROVIDE FOR THE ROLE AND RESPONSIBILITIES OF PRINCIPALS AND TEACHERS; TO ESTABLISH THE NATIONAL COUNCIL FOR CURRICULUM AND ASSESSMENT AND TO MAKE PROVISION FOR IT, AND TO PROVIDE FOR RELATED MATTERS. [23rd December, 1998]

Red Hare

The reproduction and distribution of documents that fail to comply with the simple orders of the Equality Officer is traumatic. I get acute stress reactions from these documents.

Consequently, I am unable to deal with lawyers. Even if the best lawyers in the world gave me their services for free, I would be frequently unable to deal with them due to stress, and that is a large factor as to why I have to do this on my own -rather than the cost of a lawyer.

The best way to prevent drowning is to stick out an oar, or throw a floating device. The stray Walrus " Wally' that is on the news all this week, reminds me of myself. The Employment Equality Act melted, and I'm exhausted from swimming. 🏝️

Thank you GM228 for your discussion, argument and ideas. It is good food for thought. Xx yours truly Wally!

Red Hare

I have re- read the Airey V Ireland case, again.

I can find no mention in the case report of a Judicial review having been sought, or any consideration by the judges in the ECtHR that a Judicial Review needed to be sought in order for Airey's case to be deemed admissible.

So therefore my own case is similar to Airey. I was victimised for making a gender equality complaint to the Equality tribunal. In 2012 the Equality Officer made orders to my employer ( public body ) to take a specific course of action as the mains remedy and an award for compensation. The orders were never complied with, the award never paid. I cannot get enforcement because the WRC are withholding the files that the Circuit Court require for enforcement. 9 years after the remedy was made by the Tribunal, my employers are continuing to victimise /discriminate or to comply with the orders made.

Violation of Right to Freedom of Expression ( to make a gender complaint) and Right to an effective Remedy ( 9 years later - no opportunity to get the remedy granted for this violation) in conjunction with Right to Freedom from Gender Discrimination.

(Sorry about the Kermitt video -. I have tried to delete it ,but I just can't seem to , in this new Boards.ie format. )

So there is no need to seek a judicial review after 9 years without a remedy - anyway Judicial Review remedies are limited and not a surrogate for the remedy that was awarded.

https://www.boards.ie/discussion/comment/117777628#Comment_117777628

https://www.youtube.com/watch?v=jS5fTzMP_mg

GM228

@Red Hare wrote:-

I have re- read the Airey V Ireland case, again.

I can find no mention in the case report of a Judicial review having been sought, or any consideration by the judges in the ECtHR that a Judicial Review needed to be sought in order for Airey's case to be deemed admissible.

Re-read what I stated previously:-

in fact now that I think of it from my legal studies the issue around not being able to access the HC for a JR was to do with financial inability and the lack of free legal aid, as a direct result of the Airey case the first Scheme of Civil Legal Aid and Advice was introduced and the first Legal Aid Board appointed, it was later given statutory footing when the Civil Legal Aid Act 1995 was enacted.

Perhaps it was not specific to a JR - I have a JR in my head for some reason with this case, I'm trying to remember the specifics now which are not always available to the public, a lot of these cases have a greater background story than does be published in the judgement, but what is true is the case was about access to the courts, she could not access any recourse to the High Court here to take her case further (weather that be for a JR or simply hiring a lawyer it does not matter), the state denied her that ability on the grounds of cost, this case turned then to the idea of accessibility to the courts based on financial abilities, from the ECtHR - "the violation alleged by Mrs. Airey is that in her case the State failed to secure access to court". It was a landmark case concerning Ireland and brought about reform and access to FLA for those who could not afford to take such cases.

@Red Hare wrote:-

So therefore my own case is similar to Airey. I was victimised for making a gender equality complaint to the Equality tribunal. In 2012 the Equality Officer made orders to my employer ( public body ) to take a specific course of action as the mains remedy and an award for compensation. The orders were never complied with, the award never paid. I cannot get enforcement because the WRC are withholding the files that the Circuit Court require for enforcement. 9 years after the remedy was made by the Tribunal, my employers are continuing to victimise /discriminate or to comply with the orders made.

Violation of Right to Freedom of Expression ( to make a gender complaint) and Right to an effective Remedy ( 9 years later - no opportunity to get the remedy granted for this violation) in conjunction with Right to Freedom from Gender Discrimination.

Why is the WRC withholding what you seek, have they told you why? Have you checked they authorised in accordance with law to issue certified copies the likes of the pleadings etc to you? What is their record retention schedule etc. Have you taken a JR against their decision not to release the information to you etc etc.

One thing which I have forgot to mention up to now is the time limit, there is also a 6 month time frame for taking a case to the ECtHR (dropping to 4 next year) which starts when you get any "final decision" from the state, this starts at the time when you exhausted any national remedies, or in the case where there is no effective remedy available (which seems to be the basis of your claim) then the 6 month time limit starts when you had your first issue at heart, meaning you are over 9 years too late to take a case to the ECtHR, just like the exhaustive remedies clause this time frame is enshrined in Article 35 of the ECHR and strictly enforced by the ECtHR due to public policy considerations, something like 90% of all applications to the ECtHR are rejected due to expiration of the 6 month time limit.

It really is a case of being stuck between a rock and a hard place and it may be the case that rather than try to enforce an old decision of the ET that you need to take a new case to the WRC.

Red Hare

Thanks GM228 for your discussion. In relation to your idea of me taking a new case against my employers - I have tried this. For example, I made a claim at the Circuit Court. However, this has caused my employers to seek the High Court to strike out my Circuit Court claim and to restrain me from making any further claims. To support their request, they have submitted documents to the High Court that fail to comply with, and that are contrary to the orders made by the Tribunal as remedy. So now I have to defend myself at the High Court even though there has yet to be an enforcement at the circuit court. My employers are attempting to procure the High Court to strike out my gender discrimination and victimisation claim at the Circuit Court. Yet any high court determination would be subject to enforcement of the orders of the Equality Tribunal by the Circuit Court.

I am seriously considering of applying for a JR to quash the WRC's decision to withold the files I sought. The 3 month time-limit coming up soon. The WRC did not give any reason for their refusal. They just won't answer my communications to them.

But even if I get the High to quash the WRC's decision to refuse me the files - the whole process will take years .The remedy was ordered in 2012. 😓