Supreme Court dismissed appeal where applicant chose judicial review over statutory appeal, barring factual reargument.

An Chúirt Uachtarach

The Supreme Court

Record number: 2011/310 JR

Appeal number: 356/2011

O’Donnell J

McKechnie J

Charleton J

Between

Bisi Adigun

Applicant/Appellant

and

The Equality Tribunal

Respondent

Judgment of Mr Justice Charleton delivered on Tuesday the 8th day of December 2015

1. John Millington Synge’s drama ‘The Playboy of the Western World’ was first performed at the Abbey Theatre in January 1907. The

playwright’s dialogue is heavily influenced by the Irish language, with its distinctive syntax and grammar. Whether this classic play

might benefit from updating as to speech or otherwise is outside the scope of this legal controversy, but, for whatever reason,

coming up to the centenary of that production, a new version was staged at the Abbey Theatre in 2007 and it was apparently

repeated the following year. Bisi Adigun was one of the distinguished writers who worked on the recasting of the text of the play.

2. For causes which are outside the scope of this appeal, Bisi Adigun was not satisfied with aspects of the manner in which the Abbey

Theatre related to him. There has been contractual litigation related to the production which has been referred to on this appeal, the

details of which were not part of this case. On 29th May 2008, Bisi Adigun filed a complaint before the Equality Tribunal, the

respondent herein, under the Employment Equality Acts 1998 to 2004, asserting that he had been discriminated against by the Abbey

Theatre. The originating document for such a complaint requires an applicant to tick boxes under various headings. In describing his

complaint, Bisi Adigun ticked the boxes relating to “access to employment” and “other”, writing after it “(withholding payment)”. The

complaint specified that the first discriminatory act took place on 24th December 2007 and he asserted that the most recent

occurrence was on 16th April 2008. In briefly outlining his alleged complaint, Bisi Adigun wrote:

My company, Arambe Productions was contracted by The Abbey Theatre to permit the Abbey to produce a new version

of The Playboy of the Western World …

However the Abbey have refused to honour the letters of our contract by withholding the balance of our royalties

totalling €20,860.50.

I have made several representations verbally and in writing including attending “mediation meetings” by mutual friends, to

no avail.

To further discriminate against me, the Abbey have notified me of their intention to sidestep me and my company and

deal directly with the writer whom Arambe had commissioned and paid to co-write “The Play” with me because he is white

and Irish.

I am convinced that I have been subjected to this ill treatment for the past five months simply because of my race.

I hope that you will use your good offices to bring the Abbey Theatre to reason.

3. On 19th April 2010, Bisi Adigun wrote to the registrar of the Equality Tribunal and said: “I write to request that ‘Victimisation’ be

officially added to the list of my complaints against [The Abbey Theatre] in the above matter.”

4. Early in the process, on 5th June 2008, in a letter from its solicitors, the Abbey Theatre set out the essence of its response to the

complaint of Bisi Adigun. In part, this read:

The complaint is not admissible under the [legislation] as neither Bisi Adigun or his production company … is or at any time

has been, an employee of our client.

While this disposes of the matter, we would further point out that we and our client have been engaged in substantive

correspondence with Mr. Adigun and Arambe Productions in relation to Mr. Adigun’s dispute with our client. We are happy

to provide you with copies of this correspondence if required although this would hardly seem necessary for the Tribunal’s

purposes. Suffice to say that we confirmed that the dispute has absolutely nothing to do with discrimination of any sort.

Mr. Adigun’s dispute with our client in fact revolves entirely around the consequences of the serious breach of Arambe

Productions’ contract with our client and an underlying claim being made [by another person] against Arambe Productions

relating to a breach of [this person’s] intellectual property rights. We confirm that we are taking appropriate legal

measures to protect our client’s position, none of which involve any employment discrimination aspects… Accordingly, Mr.

Adigun’s allegations of racial discrimination as set out in his complaint are entirely groundless.

In light of the above, our client regrets that the Tribunal’s time is being wasted on what is a commercial dispute involving

no employment relationship and I would be grateful if you could therefore please confirm by return that the complaint will

be dismissed.

5. Extensive submissions were received by the Equality Tribunal from both sides. On 14th July 2010, the Equality Officer appointed to

investigate the case informed the parties that he had decided that a preliminary issue had arisen, which should be scheduled for a

hearing on 10th September 2010. The reasoning for settling such an issue emerges from the letter as addressed to Bisi Adigun thus:

Entitlements and obligations under the Acts are premised, inter alia, on the existence of an employment relationship

between the parties. It appears to me from perusal of the submissions filed by both parties that the question arises as to

whether or not you were an employee of the respondent at the relevant time and thus have the locus standi to maintain

your complaint before this Tribunal.

6. There were further submissions received by the Equality Tribunal on this issue. In order to expeditiously process the matter, in

addition to the date for the preliminary issue, the substantive hearing was fixed by the Equality Tribunal for a date in December 2010.

At the hearing of the preliminary issue, both sides were represented by counsel. On 17th November 2010, the Equality Officer issued

his decision and determined that firstly, Bisi Adigun had never been an employee of the Abbey Theatre and that secondly, no

employment was open in that organisation to which Bisi Adigun or, it follows from the reasoning, anyone else might apply. The written

ruling held that the Equality Tribunal had no jurisdiction to determine the complaint of discrimination referred and that any issue as to

victimisation in employment did not arise. Bisi Adigun then sought leave to commence judicial review proceedings against the Equality

Tribunal, which was granted by Peart J on 15th April 2011. The substantive hearing took place before Sheehan J on 29th July 2011 in

the High Court and the claim was dismissed.

7. As a preliminary objection on this appeal, the Equality Tribunal claims that all issues relating to its ruling that it lacked jurisdiction

to determine the complaint is now moot. This Court has been informed that litigation involving Bisi Adigun and the Abbey Theatre has

been settled. Neither the nature of the litigation, nor the issues involved, nor the terms of the settlement have been proved on this

appeal. Furthermore, the parties to that litigation are different to those on this appeal. If the settlement covers the complaint here

that is something for the Abbey Theatre to raise. If so that might render these proceedings moot, but there is no evidence on that

point. At issue here is the correctness of the procedure before the Equality Tribunal and it is with that which this judicial review

appeal is concerned.

8. The Equality Tribunal is a creature of the Employment Equality Acts 1998 to 2004 and it operates as a statutory remedy that is

apart from justiciable controversies which may be brought before the court system. Central to the remedies sought by Bisi Adigun is

the definition of employment and it was upon this that his claim for redress failed. The remedies sought are only available in the

context of employment. Four definitions taken from section 2 of the Employment Equality Act 1998 informed the decision of the

Equality Tribunal and they were also central to the analysis conducted in the judicial review of that decision in the High Court. These

definitions follow:

‘contract of employment’ means, subject to subsection (3)—

(a) a contract of service or apprenticeship, or

(b) any other contract whereby—

(i) an individual agrees with another person personally to execute any work or service for that person, or

(ii) an individual agrees with a person carrying on the business of an employment agency within the meaning

of the Employment Agency Act 1971 to do or perform personally any work or service for another person

(whether or not the other person is a party to the contract),

whether the contract is express or implied and, if express, whether oral or written;

…

‘dismissal’ includes the termination of a contract of employment by the employee (whether prior notice of termination was

or was not given to the employer) in circumstances in which, because of the conduct of the employer, the employee was

or would have been entitled to terminate the contract without giving such notice, or it was or would have been

reasonable for the employee to do so, and “dismissed” shall be construed accordingly;

‘employee’, subject to subsection (3), means a person who has entered into or works under (or, where the employment

has ceased, entered into or worked under) a contract of employment and, where the context admits, includes a member

or former member of a regulatory body, but, so far as regards access to employment, does not include a person employed

in another person’s home for the provision of personal services for persons residing in that home where the services affect

the private or family life of those persons;

‘employer’, subject to subsection (3), means, in relation to an employee, the person with whom the employee has entered

into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a

contract of employment;

For the sake of completeness, section 2(3) referenced above is also quoted:

(3) For the purposes of this Act—

(a) a person holding office under, or in the service of, the State (including a member of the Garda Síochána or the

Defence Forces) or otherwise as a civil servant, within the meaning of the Civil Service Regulation Act, 1956, shall be

deemed to be an employee employed by the State or Government, as the case may be, under a contract of service,

(b) an officer or servant of a local authority for the purposes of the Local Government Act, 1941, a harbour authority, a

health board or a member of staff of an education and training board shall be deemed to be an employee employed by the

authority or board, as the case may be, under a contract of service,

(c) in relation to an agency worker, the person who is liable for the pay of the agency worker shall be deemed to be the

employer.

(d) in the case of a contract mentioned in paragraph (b)(i) of the definition of ‘contract of employment’—

(i) references in this Act to an employee shall be construed as references to the party to the contract who agrees

personally to execute the work or service concerned and references to an employer as references to the person for whom

it is to be executed,

(ii) any comparisons to be made for any of those purposes shall be between persons personally executing work or service

for the same person or an associated person under such a contract or contracts, and

(iii) in particular, and without prejudice to the generality of the foregoing, references in sections 19(4)(a) and 22(1)(a) to

employees shall be construed as references to those persons.

9. In the High Court, Sheehan J dismissed the judicial review application of Bisi Adigun, ruling as follows:

The central issue that arises in this application is whether there was any serious error in the manner in which the equality

officer carried out his inquiry and hearing into the question of the applicant’s employment status, and whether or not his

conclusion was based on any unsustainable finding of fact.

I hold that the employment points raised by Mr Adigun in the course of his written and oral submissions to this Court were

considered by the equality officer, and this can be seen from his affidavit from the concluding remarks of his judgement …

which I now quote: “I have completed my investigation of this complaint and made the following decision in accordance

with section 79(6) of the Employment Equality Acts 1998-2008: I find that … the complainant was never an employee of

the respondent in terms of section 2 of the … Acts … and he therefore does not have the locus standi to maintain his

complaint before this Tribunal in respect of the alleged discriminatory treatment on grounds of race in terms of section 6,

subsection 2 of the … Acts … as regards his conditions of employment. The complainant was never an employee of the

[Abbey Theatre] … and he therefore does not have the locus standi to maintain his complaint before this Tribunal in

respect of the alleged victimisation of him … and … there was no employment available or on offer in December 2008 when

[the Abbey Theatre] exercised its entitlements under clause 12 of the agreement of the 18th May 2007 between it and

Arambe Productions, and it did not, therefore, deny the complainant access to employment contrary to the Acts or at all

and the complainant’s case fails in its entirety.” I am satisfied that the equality officer was entitled to hold a hearing into

the preliminary issue as to the applicant’s employment status and I’m satisfied that the applicant was fully represented at

the hearing and had a full opportunity to make all necessary submissions through his counsel. I’m further satisfied that the

equality officer gave careful consideration to the matter before issuing his direction. I can detect no error of law, nor any

unsustainable finding of fact on which the respondent’s decision was reached. I hold that this inquiry was conducted fairly

and in accordance with due process and the principles of natural justice. While I accept that the applicant may well have

believed that he had passed the employment threshold for admissibility, in the light of correspondence, and further that

date had been fixed for the hearing of the substantive complaints, nevertheless, the fact remains that the … [Equality

Tribunal] had no jurisdiction to entertain these complaints, given that the applicant was not an employee.

10. On this appeal from that judgment, Bisi Adigun, conducting his own case, has raised a number of points with a view to persuading

this Court that Sheehan J was incorrect. For the purposes of this appeal, these will be considered in turn.

11. Firstly, he argues that any finding by the Equality Tribunal that he was not an employee was both unreasonable and irrational. He

argues that to say in relation to the production of the play that he was merely an accessory and not an employee flies in the face of

fundamental reason and common sense. This submission, however, is not borne out by the affidavit evidence and other papers

submitted on this appeal. Bisi Adigun chose to incorporate a company called Arambe Productions for the purposes of his legal dealings

with the Abbey Theatre. Exhibited amongst the papers is an agreement between that company and the theatre dated 18th May 2007.

The interposition of a limited liability company dealing through contract with the theatre in itself undermines the complaint of Bisi

Adigun that he was an employee. Be that as it may, the nature of the agreement further supports the judgment of the High Court.

The agreement specifies Arambe Productions as the licensor and the Abbey Theatre as the licensee. It is clear from the nature of the

document that what is involved is the granting to the Abbey Theatre of rights to produce the new version of ‘The Playboy of the

Western World’. It is impossible to know from reading that document, or from any other of the documentation furnished on this

appeal, whether the claim as to the vesting of the intellectual property rights in the new version of the play is as stated therein. No

comment is made in that regard.

12. A full reading of the agreement indicates that it concerns a licence to produce and present the play in this country, in the

neighbouring jurisdiction and in the United States of America. Royalties are specified at 10% of gross box office receipts, with certain

deductions. An advance payment on account of royalties is optioned and certain specific financial consequences are set out in

relation to any production in the USA. As regards the nature of the relations between the writers, as specified in the agreement, and

the Abbey Theatre, these are not indicative of either an existing employment relationship or any prospect of resulting employment.

Arambe Productions, under the agreement, is to receive 8 tickets for the first night; the text of the players is not to change without

the written approval of Arambe Productions; the cast, director and designer is to be agreed in consultation with Arambe Productions,

not to be unreasonably withheld; and access is to be given to that company in respect of checking box office returns. References to

the writers specified in the agreement as being behind the new play include a stipulation as to the size of their billing on any poster or

programme, but it is Arambe Productions which contracts to have information “of all arrangements in regard to the production of the

said Play … and of details of cast, opening dates and press comment upon such productions.” None of this indicates that there was

any possible basis upon which it could be argued that the ruling by the Equality Officer was incorrect in holding that there was no

employment relationship between Bisi Adigun and the Abbey Theatre and that there was no employment thereby or otherwise open to

him.

13. Secondly, Bisi Adigun argues that holding a preliminary hearing in relation to his alleged employment status when the substance of

the case related to victimisation and discrimination amounts to a breach of the fair procedures guaranteed under the Constitution,

and furthermore, that this is incompatible with Article 6 of the European Convention on Human Rights. In proceeding as he did,

however, the Equality Officer acted in accordance with the authority given to him in law. Section 79(1A) of the Employment Equality

Act 1998 provides for a single hearing in respect of more than one complaint. The subsection reads:

(a) Claims to have been discriminated against on more than one of the discriminatory grounds shall be investigated as a

single case, and

(b) claims both to have been discriminated against on one or more than one of such grounds and to have been penalised

in circumstances amounting to victimisation may, in an appropriate case, be so investigated,

but a decision shall be made on each of the claims.

14. Here, a number of grounds for relief were raised by Bisi Adigun and the Equality Officer was acting within the terms of the

legislation in seeking to investigate these collectively. Since that time, it appears that Bisi Adigun has moved away from placing

reliance in his claim under the Acts in respect of the commercial nature of the contract between Arambe Productions and the Abbey

Theatre. As the chronology set out above indicates, the focus has now become that of discrimination. However, under the Acts, any

such allegation has to relate to employment or to the prospect of employment. Section 79(3A) of the Employment Equality Act 1998

enables preliminary issues to be tried before a full hearing. The subsection reads:

If, in a case which is referred to the Director [General of the Workplace Relations Commission] under section 77, a

question arises relating to the entitlement of any party to bring or contest proceedings under that section, including:

(a) whether the complainant has complied with the statutory requirements relating to such referrals,

(b) whether the discrimination or victimisation concerned occurred on or after 18 October 1999,

(c) whether the complainant is an employee, or

(d) any other related question of law or fact,

the Director may direct that the question be investigated as a preliminary issue and shall proceed accordingly.

15. While it is correct to argue that a unitary trial is the normal and most satisfactory method of proceeding with a case in court,

there are also many circumstances where the trial of a preliminary issue may resolve the substance of a legal dispute. Even apart

from the subsection quoted above, it is within the scope of fair procedures before any judicial or quasi-judicial body for an issue to be

isolated and tried in advance of the main hearing provided that can be done fairly. Sometimes, the parties will consent to that. The

advantage of the Employment Equality Acts is that the circumstances under which such a course may be taken by the Equality

Tribunal are clearly spelt out. Central to any issue as to whether redress in respect of discrimination within employment is available

under the Acts, is whether a person was employed or not. That issue was inescapably part of, and fundamental to, the admissibility

of a claim for redress, which is defined in statute as being available only to employees. Hence, even apart from legislative provisions,

it would make sense that once the issue was raised, it should be determined in advance of what was likely to be a substantial

hearing. The resources of courts and tribunals are limited. It is a pointless exercise to engage in a trial of fact over several days when

whether or not the resolution of such facts may yield any redress to the claimant looms is clearly the first hurdle that he or she must

cross. That can be fairly isolated and tried in advance. There is nothing in the papers on this appeal to suggest that the Equality

Officer misconstrued the relevant legislation or exercised the discretion which it gave him in any unreasonable or capricious manner.

16. Related to this point is a complaint by Bisi Adigun that once a date had been set for the full hearing, the cancellation of that

substantive hearing, through the ruling that he had no employment relationship with the Abbey Theatre, constituted some form of

unfairness, or the breach of a legitimate expectation. This third point is also unsustainable. It is within the scope of the Acts that

preliminary issues can be tried and ruled on, either in advance of the substantive hearing of which they form part, or in order to

obviate the necessity for such a hearing. Every tribunal and court has a duty to move with reasonable expedition. Litigation is a

stressful and unfamiliar experience for those who initiate a claim or who are called on to respond. Shakespeare has Hamlet bemoan

the lack of progress in litigation as part of the ills of life: “the whips and scorns of time, the oppressor's wrong, the proud man's

contumely, the pangs of despis'd love, the law's delay, the insolence of office”. The Equality Officer, on the relevant correspondence,

was motivated by the need to both grasp the essentials of the case and to move it along towards resolution, one way or the other.

There is a range of appreciation in respect of the conduct of quasi-judicial bodies which should be respected. Clear statutory

authority for the Equality Officer’s actions existed. In addition, reasonable decisions as to how a case should proceed are not to be

substituted, even by a contrary reasonable view. That is not the function of judicial review. There is also a misunderstanding here of

how the doctrine of legitimate expectation might interact with fair procedures. It is not necessary to express any view on this matter.

In this context, legitimate expectation has no application since the setting of a date which became unnecessary due to the resolution

of the preliminary issue as to entitlement to redress meant that there was no function in the Equality Tribunal. It could no longer

make any ruling that could be of any benefit to Bisi Adigun. As Fennelly J remarked in Glencar Explorations Limited v Mayo County

Council (No 2) [2002] 1 IR 84 at 162, the doctrine of legitimate expectation is related to that of promissory estoppel. For that

principle to apply, there must be “clear and unequivocal promise or assurance which is intended to affect the legal relations” between

parties to a transaction which is understood as such, and before it is withdrawn the party to which the representation is made, acts

upon it in such a way that “it would be inequitable to permit the first party to withdraw the promise” to act inconsistently with it;

McGhee (Ed), Snell’s Equity, 32nd Ed., (London, 2010) at 370-371. These conditions do not apply here.

17. All the parties to this appeal were agreed, and even without that agreement, it is implicit in the legislation that the Acts do not

provide for redress where a person was not employed by the respondent or where there was no prospect of employment open. Even if

legitimate expectation could apply in this context, and nothing more than a bare argument has been advanced in that regard, had the

Equality Tribunal proceeded to hearing the substance of the case having ruled that Bisi Adigun had never been employed by the

Abbey Theatre, it would have been a clear breach of its statutory remit. Plainly, there was no jurisdiction. Redress under Article 6 of

the European Convention on Human Rights has not been argued on this appeal by the citation of any relevant case law. Suffice it to

say, however, that within the context of employment, had there been discrimination or victimisation, a reasonable prospect of redress

was open before the Equality Tribunal, had facts been found in favour of Bisi Adigun. This point also is therefore dismissed.

18. Fourthly, Bisi Adigun complains that as between him and his co-author, the Abbey Theatre favoured his collaborator over him.

Within the terms of the agreement between Arambe Productions and the Abbey Theatre, referenced above, there was nothing within

its text which could have turned that commercial relationship to assign the right to put on a play in a theatre into an employment

relationship. Furthermore, any complaint in relation to the alleged victimisation comes entirely from documents penned by Bisi Adigun

in the aftermath of what seems to have been the ordinary ups and downs of human relations. The complaint by Bisi Adigun of

victimisation in relation to any alleged Theatre is supported by no more than his own allegation. Even in itself, it is unsupported by

any confirmatory detail. That preliminary comment aside, the function of the Equality Tribunal lies entirely within its statutory remit.

Bisi Adigun complains that having been disfavoured, as he claims, it is against the principles of justice that he should have nowhere to

turn for redress. This, however, ignores the fact that it was he who decided that the statutory remedy invoked by him in his

application to the Equality Tribunal was appropriate. He further makes a general point that there is nowhere else in Irish law to which

he could have turned in order to find a remedy. Fundamentally, however, Bisi Adigun has not demonstrated that his ostensibly primary

complaint of favouring one author over another in terms of the production of a co-authored play amounts to anything which is outside

the terms of the agreed contract with which Arambe Productions bound itself in its relations with the Abbey Theatre. Whether it is or

it is not would be a matter for commercial litigation between Arambe Productions and the Abbey Theatre. It would have nothing to do

with judicial review. The incorporation was favoured, no doubt, because of the advantages that it would bring. That occlusion,

through the corporate veil, of human interaction and the binding into specific written obligations through contracts between two legal

entities, Arambe Productions and the Abbey Theatre, has meant that the primary source, if not the only source, of the definition of

the obligations of each side is to be found in the referenced agreement. While the Court on this appeal was not informed of the

litigation which resulted from that set of mutual obligations, it is clear that remedies in contract were available should a breach have

been provable. Even apart from the existence of contract remedies and the choice of the Employment Equality Acts 1998 to 2004 as

the vehicle for Bisi Adigun to air his complaints, it has not been demonstrated by him on appeal that he was left otherwise unable to

find a remedy under statute or otherwise. This point therefore fails.

19. Lastly, Bisi Adigun complains that Sheehan J erred in law by disregarding all issues in relation to equal treatment and did not allow

him a remedy which would enable him to pursue an adequate means of earning a livelihood. It is clear however, from the extract of

the judgment of Sheehan J quoted above, that great care was exercised in the analysis of the fundamental points raised on that

judicial review. Here, there may be a misunderstanding by Bisi Adigun of the nature of judicial review. This remedy was chosen by him

in preference to a full appeal to the Labour Court. This is provided for in section 83 of the Employment Equality Act 1998. Further,

under that section, where the determination of an appeal on a preliminary issue is in favour of the complainant, the matter is referred

back for the investigation of the substantive issue. The appeal remedy exists in order to right any findings of fact within the

jurisdiction of the Equality Officer. It is a full redress in respect of any alleged error. Judicial review on the other hand is focused on

jurisdiction and on procedure. An applicant choosing this remedy over on appeal cannot reargue the facts, but instead must

demonstrate that the tribunal has moved outside the boundaries of its jurisdiction or has acted so unreasonably in terms of fact as to

invalidate its decision or has fallen into unconstitutional procedures. This is not a rehearing of the facts, as an appeal would be in

these particular circumstances as defined by statute, but an analysis of the process. In that context, the ruling by Sheehan J again

cannot be faulted.

20. Additional points were argued on the written submissions, but were not advanced by oral argument. These grounds include an

allegation that the secretariat of the Equality Tribunal erred in law in requesting a submission in September 2008 from Bisi Adigun as a

prerequisite to referring the claim to an Equality Officer. It appears that this allegation is incorrect and that the request was not a

prerequisite. Even if it had been, it is for tribunals to choose reasonable procedures for the purpose of advancing their work. There

could be nothing unreasonable about requesting a statement of what facts would be alleged, with a view to elucidating grounds that

had previously been flagged only by a tick on an application form. Another argument made in writing was that there was an unlawful

and purposive delay by the Equality Tribunal in assigning the case. Every tribunal will have work pressures. There is nothing in the

chronology to indicate that there was any decision to treat the claim of Bisi Adigun in any other way than that of any other

complainant before the tribunal. Bisi Adigun has no entitlement to any special treatment. Reasonable expedition was clearly the object

of the administrative side of the preparation of this case. That cannot be unlawful. Then, as a final matter, there was a further

complaint that there was unlawful delay in issuing the decision on the preliminary hearing,. This took place on 10th September 2010.

Given that the ruling issued two months later, on 17th November 2010, and that complex issues of law had been argued, this was not

unreasonable even if as Bisi Adigun contends, an earlier date was indicated. Furthermore, it is difficult to see any such ground being

within the scope of judicial review.

21. It therefore follows that this appeal should be dismissed on all grounds.