EDA1723

He submitted a complaint to the Workplace Relations Commission on 24 October 2014. The Adjudication Officer decided on 19 September 2016 that the Complaint was not well founded. The Complainant appeals against that decision to this Court.

Background

The Complainant is a professional market researcher. His particular skill-set includes survey design and administration, development of detailed questionnaires and holding focus groups. He was employed by the Respondent further to two written contracts of employment as a Research Officer.

The first contract (“Contract 1”) was for a specified purpose linked to a specific project: “to support the Teagasc/FIRM funded project entitled ‘Developing novel convenient meat based products by application of high pressure’. Contract 1 commenced on 1 April 2008 and terminated on 31 March 2010. The Complaint was given approximately 5 weeks’ written notice of the termination of this contract.

The second contract issued to the Complainant (“Contract 2”) was also a specified purpose contract and was also associated with a named research project: “EU Framework – FP7 (EU Netgrow); Project Title: Enhancing the innovativeness of Food SME’s through the management of strategic network behaviour and network learning performance.” The contract commenced on 1 November 2010 and terminated on 30 April 2014. The Complainant was given approximately two weeks’ written notice of the termination of this contract.

The Respondent on different dates in 2014 and 2015 advertised six research posts under a Postdoctoral Fellowship Scheme. Eligibility under that scheme was confined to postdoctoral researchers who had graduated with a PhD within the three years prior to the date on which they applied to participate in the scheme and who possessed no greater than 3 and 5 years relevant postdoctoral experience for PD Level 1 and PD level 2 positions respectively. The Complainant possesses more than five years postdoctoral experience and was 39-40 years of age at that time.

The Complaint

The Complainant submits that the comparators on whom he relies were eligible to apply for those positions and were younger and less experienced than him.

He submits that this experience restriction is a function of age and amounts to discrimination on the age ground within the meaning of s 6(2) (f) and s31 and contrary to s8(5) and s8(6) of the Act.

Preliminary Matter

Respondent’s Position

The Respondent submits that a preliminary issue arises in this case. It submits that the facts and legal arguments set out in the Complainant’s substantive case have already been rejected by the Labour Court in related proceedings.

It submits that the Claimant in the current proceedings claims that he was denied employment on the age ground in 2014 by the Respondent when there was an ongoing need for a person with his qualifications at that time. It claims that the Claimant in the related proceedings under the Protection of Employees (Fixed Term Work) Act 2003,FTD/16/2,advanced similar grounds in support of a claim that he had made under the Act in 2014 in which he alleged that he had been denied a contract of indefinite duration, been dismissed from his employment and penalised by the Respondent.

It submits Labour Court in those proceedings stated

“There was no evidence put before the Court which established a link between the Respondent’s decision to reorganise its research strategy through the establishment and use of postdoctoral research fellows and either the termination of the Complainant’s existing fixed-term contract on 30 April 2014 or the subsequent non-renewal of that contract”

The Respondent further submits that when the complaint under the 2003 Act came before the Court, it, noting the overlap between the two cases, invited the Complainant to make an application to adjourn the proceedings until the current case which was then before the Workplace Relations Commission, was decided. The Complainant declined to make such an application and decided instead to press on with his complaint.

The Respondent submits that it is common case that the facts on which the Complainant sought and seeks to rely in both cases overlap to the extent of 95% as claimed by the Complainant in an email to the WRC dated 31 January 2016 which states

• “However, I should point out that 95% of the factual and legal arguments contained therein can also be found in the supplementary document associated with my parallel case (under the 2003 Act), which was forwarded to the Respondent on 9^thNovember 2015.”

In this regard Counsel for the Respondent relies on the judgement of Chief Justice Murray inRe Vantive Holdings2 I.R. 118 at pp 124-125 in which he cites with approval the following summary of the rule in Henderson v Henderson

“The rule in Henderson v. Henderson is to the effect that a party to litigation must make its whole case when the matter is before the Court for adjudication and will not afterwards be permitted to re-open the matter to advance new grounds or new arguments which could have been advanced at the time. Save for special cases, the plea of res judicata applies not only to issues actually decided but every point which might have been brought forward in the case.

In its more recent application this rule is somewhat mitigated in order to avoid its rigidity by taking into consideration circumstances that might otherwise render its imposition excessive, unfair or disproportionate.”

Viewing it through the prism of estoppel and res judicata the rule in Henderson v. Henderson strictly speaking applies to proceedings between parties where those proceedings determine the rights or obligations between those parties. It is intended, inter alia, to promote finality in proceedings and to protect a party from being harassed by successive actions by another party when the issues between them either were or could have been determined with finality in the first proceedings.”

Counsel for the Respondent also relies onMorrisey v Irish Bank Resolution Corporation3 JIC 110 ,Woodhouse v Consigna Plc1 WLR 2558 at p 2575 andCunningham and Intel Irelandin which Hedigan J states

“all matters and issues arising in the same set of facts or circumstances must be litigated in the one set of proceedings save for special circumstances. This is a rule that is of benefit to both Plantiffs and Defendents, to the courts themselves and thus to the public interest”.

By confining her complaints in one set of proceedings the statutory and common law requirements do not in any way limit the Plaintiff’s right to a remedy for those complaints. In particular, as a lay litigant, the Plaintiff is far better off having all of her complaints dealt with in one set of proceedings.”

Counsel for the Respondent submits that this restriction must also apply to the Complainant in this case.

She submits that the postdoctoral model put in place by the respondent in both sets of proceedings are identical and the same facts are proffered in order to ground the current claims as were sued in the claim under the 2003 Act and in particular in support of the complaint of the alleged dismissal in order to avoid a contract of indefinite duration accruing to the Complainant. She submits that the facts are on all fours and that the approach adopted by the Complainant is on all fours with that which is prohibited by the Rule in Henderson v Henderson.

Complainant’s Position

The Complainant submits that this complaint involve different issues of law to those that arose in the complaint he brought under the Protection of Employees Fixed- Term Work Act 2003. He submits that hence the doctrine of res judicata has no application in the instant case. He further submits that he was not advised by the Court that electing to proceed with the complaint under the 2003 Act would have any adverse consequence for his right to litigate this complaint to finality.

Discussion

The Complainant brought proceedings under the 2003 Act. It is common case that when the case came before it the Court was notified of the instant proceedings. It is further acknowledged that the Court invited the Complainant to adjourn the proceedings under the 2003 Act until this matter was disposed of at first instance as the overlap between the two cases could have an impact on his capacity to maintain these proceedings after the complaint under the 2003 Act was disposed of.

It is noted that the Complainant insisted on proceeding with his complaint under the 2003 Act.

The Court proceeded to hear the parties regarding those complaints. In its judgement it notes

“There was no evidence put before the Court which established a link between the Respondent’s decision to reorganise its research strategy through the establishment and use of postdoctoral research fellows and either the termination of the Complainant’s existing fixed-term contract on 30 April 2014 or the subsequent non-renewal of that contract. It follows that there is no principle in law or in logic on which the Court could hold that the Respondent’s engagement of postdoctoral fellows to conduct research was “wholly or partly for or connected with the purpose of the avoidance of a fixed-term contract being deemed to be a contract of indefinite duration under section 9(3).”

The Court notes that the following passage from the Complainants email of 31 January 2016 which was written some three months before the Labour Court Hearing into his complaint under the 2003 Act. ,

• “However, I should point out that 95% of the factual and legal arguments contained therein can also be found in the supplementary document associated with my parallel case (under the 2003 Act), which was forwarded to the Respondent on 9^thNovember 2015.”

In making his case to the Court he raised no claim of discrimination on the age ground arising out of the reorganisation of the research strategy by the Respondent as a factor to be considered by the Labour Court in the context of his complaints before the Court. However he now asks the Court to decide that the said reorganised strategy and his ineligibility to apply for a position under the revised scheme amounts to discrimination on the age ground.

In this regard the Court notes the following comments referred to by Murray J quoted above

Viewing it through the prism of estoppel and res judicata the rule in Henderson v. Henderson strictly speaking applies to proceedings between parties where those proceedings determine the rights or obligations between those parties. It is intended, inter alia, to promote finality in proceedings and to protect a party from being harassed by successive actions by another party when the issues between them either were or could have been determined with finality in the first proceedings.

The question for this Court therefore is whether finality could and should have been brought to these proceedings, as suggested by the Labour Court when the complaint under the 2003 Act was before it, by disposing of both cases in one set of proceedings or whether there is some special circumstance that would justify a more relaxed approach to the rule in Henderson v Henderson, and issues of res judicata and estoppel in this case.

In this regard the Court would normally be slow to deprive any aggrieved person of their right to a full hearing both at first instance and on appeal of a complaint of discrimination on any of the nine grounds set out in statute. However the Court must also ensure that process is not abused and respondents faced with the cost and inconvenience of having to mount a defence against what is effectively the same facts rehearsed in successive cases under different pieces of legislation. It is for that reason that the Court, aware that the Complainant had acknowledged the fact that 95% of the facts and law in both cases were on all fours, invited him to make out all of the arguments on which he sought to rely. It invited him to adjourn the hearing of the complaint under the 2003 until both cases could be disposed of in one set of proceedings. He chose not to do so.

The Court notes that the Complainant is a lay litigant and would normally be extended a considerable degree of latitude owing to his lack of familiarity with the law. However the Court also notes that the Complainant is a very well qualified postdoctoral researcher who has demonstrated a high level of legal understanding, research, presentation and advocacy in his own case.

Accordingly the Court finds on the balance of the evidence that the Complainant fully understood the full impact of what was being put to him by the Labour Court when the 2003 case was before it. When he chose to proceed with that case in isolation he did so with full knowledge of the import of that decision.

In those circumstances the Court finds that there are no special circumstances applying in this case that would support a decision to rehear the facts of the case that were fully considered in the case under the 2003 Act in a fresh set of proceedings under the Employment Equality Act. The Court finds that such a course of action is an abuse of process and in contravention of the rule in Henderson v Henderson so helpfully summarised above by Murray J.

Determination

For the reasons set out above the Court does not allow the appeal in this case.

The Court so determines.

Signed on behalf of the Labour Court



Brendan Hayes
28th July 2017______________________
SCDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Jason Kennedy, Court Secretary.