ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002699

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 21/07/2016

Workplace Relations Commission Adjudication Officer: Peter O'Brien

Procedure:

In accordance with Section 41 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Complainant’s Submission and Presentation:

Respondent’s Submission and Presentation:

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

The Complaints were filed with the WRC under Section 13 of the 1946 Industrial Relations Act which does not give an Adjudicator power to make a decision on a claim. This is an administrative error and the case is dealt with, by consent, under Section 13 of the 1969 Industrial Relations Act.

With regard to the complaint (CA-00003994-001) that the bullying complaint was not processed I find the following;

The Complainant never initiated a formal bullying complaint nor does it appear that the Respondents Support Contact Person (SCP) listed under its procedures for dealing with bullying allegations gave the Complainant a written statement of their view of the complaint for the Complainant to review and sign, in the absence of a written complaint.

The letter from the Respondents SCP of November 9^th 2015 stated “which you formally alleged bullying” is incorrect in accordance with the Respondents own procedures. The complaint was informal at that stage as it had never been put in writing in compliance with section 2.4 of the Respondents policy.

There is no evidence whatsoever of an investigation having been thoroughly completed. The complaint was lodged on Thursday November 5^th 2015 and the response was provided on November 9^th 2015, the following Monday. This seems extremely quick to have conducted a thorough investigation. No report or evidence of the investigation was available.

The role of the SCP in the procedure seems to be an advisory and facilitating role. There is no part of the Respondents policy which states that the SCP person should make a decision on a claim of bullying. The Respondent needs to review its procedure in this regard.

I find, given all the above, that the Complainant had initiated an informal complaint or discussion and a conclusion, however hastily, was reached in that regard. It is a matter for the Complainant whether he now wishes to initiate a formal complaint, which should be done in writing and in accordance with the Respondents current policy.

With regard to the sick pay complaint (CA-00003994-002 ) the Respondent was given two weeks from the date of the Hearing to supply the legal letter showing that the Complainant has initiated a claim for his loss of wages. The Respondent submitted a letter dated February 16^th 2016 from the Complainants Solicitor initiating legal proceedings against the Respondent for a personal injury claim from an alleged incident on November 6^th 2015.

The Complainant made the claim to the WRC for payment of sick pay on April 1^st 2016 regarding payment for an injury on duty benefit and which relates to the period from November 6^th 2015 onwards.

In the recent case of Cunningham v Intel Ireland [2013] IEHC 207, Mr Justice Hedigan was asked to consider the issue of duplication of proceedings. The judgement was delivered on 15th May 2013.

The plaintiff lodged an Employment Equality claim and in the section entitled “brief outline of complaints” attached to her Form EE1, the plaintiff claimed that the alleged discrimination significantly affected her “health and wellbeing”.

The plaintiff also lodged a personal injury claim against the defendants which appeared to relate to the same alleged damage to her “health and wellbeing”.

The defendant sought to strike out the plaintiff’s personal injury claim dated 2009 as an abuse of process and/or a duplication of the plaintiff’s equality claim against the defendant and/or for want of prosecution. The defendant claimed that the same events caused the alleged personal injury claimed in the personal injury summons.

In this regard the defendant relied upon the rule in Henderson v Henderson (1843) 3 Hare 100 and Section 101(2)(a) of the Employment Equality Act 1988 (as amended) which prevents the duplication of proceedings.

In her submission filed with the Equality Tribunal, the plaintiff claimed that the defendant caused her considerable health difficulties including stress, anxiety, depression and panic attacks. The submissions and her oral evidence to the Equality Tribunal dealt with the entire period referred to in the personal injury summons. The High Court noted that there appeared to be no part of the claim in the personal injury summons that was not made to the Equality Tribunal.

Justice Hedigan also referred to the rule in Henderson v. Henderson and quoted from Lord Bingham in Johnson v. Gore Wood & Co. [2002] 2 AC 1 whereby;

“Henderson v. Henderson abuse of process, as now understood, although separate and distinct from cause of action estoppel and issue estoppel, has much in common with them. The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole. The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all. I would not accept that it is necessary, before abuse may be found, to identify any additional element such as a collateral attack on a previous decision or some dishonesty, but where those elements are present the later proceedings will be much more obviously abusive, and there will rarely be a finding of abuse unless the later proceeding involves what the court regards as unjust harassment of a party. It is, however, wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not.”

The High Court also referred to the case of Woodhouse v. Consignia Plc [2002] 1 WLR 2558 where Lord Justice Brooke referred to the public interest in the efficient conduct of litigation and stated (at p. 2575):

“………..The rationale for the rule in Henderson v Henderson (1843) 3 Hare 100 that, in the absence of special circumstances, parties should bring their whole case before the court so that all aspects of it may be decided (subject to appeal) once and for all, is a rule of public policy based on the desirability, in the general interest as well as that of the parties themselves, that litigation should not drag on for ever, and that a defendant should not be oppressed by successive suits when one would do.”

The High Court commented that all matters and issues arising from the same set of facts or circumstances must be litigated in the one set of proceedings save for special circumstances.

In this case my view is the Complainant is running two parallel claims for loss of earnings. While there may be no particular section of the relevant Industrial Relations Acts which prohibit duplication of proceedings, the legal background to duplication of proceedings is set out above. There may be other issues involved in the personal injury claim but there is no doubt that both sets of proceedings will cover the loss of earnings issue. Based on the legal principles set out in Henderson versus Henderson I am of the view that I cannot accept jurisdiction to deal with the Complainants case as the personal injury case was lodged prior to the claim to the WRC and the complainant has initiated duplicate proceedings.

Dated:   26^th October 2016