Complainant

Respondent

Parties

Andrew  Conway

Department Of Agriculture Food and  Marine

Representatives

Mr Kevin Finn 

Ms Sarah-Jane Hillery instructed by Mr Joseph Dolan Chief State Solicitor's Office

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014

CA-00047749-001

20/12/2021

The Complainant is a Veterinary Inspector with the Respondent and claims that he was penalised for making a protected disclosure in breach of section 12 of the Protected Disclosures Act 2014. (The Act).

The Respondent denies penalisation. The Respondent made a preliminary application that the complaint was frivolous and vexatious and should be dismissed in accordance with section 42(1) of the Workplace Relations Act 2015.

Preliminary Application:

The Respondent submits that  the subject matter of these proceedings, the Protected Disclosure of 17 May 2018, has already been ventilated before the WRC, the Labour Court, and the High Court. The Respondent submits that the Complainant is seeking to make the same complaints again and his complaint is therefore frivolous and vexatious and should be dismissed under the power given to the Adjudication Officer under section 42(1) of the Workplace Relations Act 2015 where it states:

“An adjudication officer may, at any time, dismiss a complaint or dispute referred to him or her under S.41 if he or she is of the opinion that it is frivolous or vexatious.”

The Respondent submits that the Complainant  is making a repeated claim of penalistaion and outlined the following actions previously taken by the Complainant as follows:

·         The Complainant made a  complaint on 11 July 2018 to the Workplace Relations Commission (WRC) bearing reference ADJ-00015773. The wrongdoing alleged in this Protected Disclosure was discrimination on the age ground and the penalisation alleged by the Complainant. This complaint predated the making of the disclosure in relation to which he was alleging penalisation. This was pointed out to the WRC by the Respondent. The Complainant withdrew his compliant by email to the WRC dated 21 August 2018.

·          On 17 September 2018 the Complainant lodged a further complaint with the WRC ADJ-00016854 wherein he again alleged unfair treatment, disadvantage, and loss of opportunity in light of his age and experience. Whilst not stated, these allegations appeared to point back once again to his placing on the panel which clearly predated the disclosures made by the Complainant. The decision in relation thereto was under appeal at the time of lodging this third complaint. Complaint ADJ-00016854 arose from the same Protected Disclosure of 14 May 2018 that underlies the present matter before the WRC.

·         The Respondent submits that by reason of a miscommunication the Respondent did not attend the WRC hearing in relation to this third complaint and the adjudicator found in favour of the Complainant in the Respondent’s absence on 16 July 2019.

·         The decision of the Adjudication Officer was overturned on appeal to the Labour Court by determination dated 18 December 2019  which was then the subject of an appeal to the High Court on a point of law. In Conway v The Department of Agriculture, Food, and the Marine [2020] IEHC 665  Hyland J. upheld the decision of the Labour Court that the Appellant (the Complainant in this instant case)  had failed to identify the detriment which he had suffered as a result of having made a protected disclosure.

In light of the above, the Respondent argues that the Complainant has made a number of complaints to the WRC focussing on the same allegations and issues and his complaint herein is therefore frivolous and vexatious and should be dismissed.

The Complainant submits that the claim of penalisation here is a  fresh complaint  which  concerns the Resolve report, an investigation carried out by a body commissioned by the Respondent to investigate the Protected Disclosure. This was produced after the WRC, Labour Court, and the High Court decisions.

The Complainant submits that the Resolve Ireland report stated that there was  no relevant wrongdoing, as defined by the Protected Disclosure Act 2014. The Complainant submits that this result has the  effect of him losing  the protection of the Act to his detriment. The Complainant submits that Protected Disclosure is in being, until proven to the contrary. The Resolve report did not use fair procedures and if allowed to go unchallenged, results in him  demeaned and suffering reputational loss.

The Complainant contends that the statements of the Respondent  after the Resolve report mean in effect that the Complainant did not have a reasonable belief that a relevant wrongdoing had occurred.  The Complainant gave direct evidence under affirmation that he considered the penalisation to be the reputational and that the  stressful effects arising from the Resolve investigation as well as the fact, that in his opinion, that  no fair or proper procedures were used, should be classed as penalisation.

The Respondent made a preliminary application that the complaint should be dismissed, primarily on the grounds that the relevant matters surrounding the  Protected Disclosure of 17 May have already been ventilated before the WRC, the Labour Court, and the High Court. The Respondent accepts that a Protected Disclosure was made, and that the Complainant was entitled to the protection of the Act at all times relating to the making of the disclosure.

Section 42(1) of the Workplace Relations Act 2015 states:

“An adjudication officer may, at any time, dismiss a complaint or dispute referred to him or her under S.41 if he or she is of the opinion that it is frivolous or vexatious.”

It is widely accepted by the Courts that the terms “frivolous” and “vexatious”  are legal terms which can be often used interchangeably as held by the Barron J in Farley v Ireland, [1997] IESC 60:

“So far as the legality of matters is concerned frivolous and vexatious are legal terms. They are not pejorative in the sense or possibly in the sense that Mr. Farley may think they are. It is merely a question of saying that so far as the plaintiff is concerned if he has no reasonable chance of succeeding then the law says that it is frivolous to bring the case.

Similarly, it is a hardship on the defendant to have to take steps to defend something which cannot succeed, and the law calls that vexatious”.

In 2005, McCracken J reiterated this in Fay v Tegral Pipes Limited & Ors [2005] 2 IR 261, stressing that the ‘real purpose’ of the courts’ inherent jurisdiction to dismiss frivolous or vexatious claims was firstly, to ensure that the courts would be used only for the resolution of genuine disputes and not for ‘lost causes’ and, secondly, that parties would not be required to defend proceedings which could not succeed.

The terms “frivolous or vexatious” were carefully considered by the High Court in Patrick Kelly v The Information Commissioner [2014] IEHC 479  and the following passage from that decision is instructive as to the meaning of these terms:

“As a matter of Irish law, the term “frivolous or vexatious” does not, as noted by Birmingham J. in Nowak, necessarily carry any pejorative connotations but is more concerned with the situation where the litigation (or, in this instance, application) can be described as futile, misconceived or bound to fail.

Where a person engages in a pattern of litigation (or applications as in the present instance) which not only come within those descriptions but can be said to be actuated by ill-will or bad faith, such conduct may properly be described as vexatious.”

Irvine J in the High Court in Behan v McGinley [2011] 1 I.R. 47 and reiterated by Laffoy J in Loughrey v. Dolan[2012] IEHC 578, relied on a decision of the Ontario High Court in Re Lang Michener and Fabian (1987) 37 D.L.R. (4th) 685 which listed a number of factors which tend to indicate that proceedings may potentially be vexatious in nature and thus amenable to being struck out. These factors, amongst others, in a non-exhaustive list which are not meant to be exhaustive, are:

“• whether the issues in dispute are matters which have already been determined by a court of competent jurisdiction, i.e., res judicata;

• where it is obvious that an action cannot succeed, or if the action will lead to no possible good, or if no reasonable person can expect to obtain relief;

• where the action is brought for an improper purpose, including harassment and oppression of other parties, as opposed to asserting legitimate legal rights;

• where issues sought to be litigated tend to be rolled forward into subsequent actions and repeated and supplemented;

• where the person instituting the proceedings has failed to pay the costs of unsuccessful proceedings;

• where the plaintiff persistently takes unsuccessful appeals against judicial decisions.”

The Complainant in this case referred to what he believed was a new form of penalisation when he gave evidence that he was stressed and suffered reputational damage as result  of an investigation of his protected disclosure which found that there was no relevant wrongdoing. The Labour Court in dealing with the same protected disclosure stated that it was not in a position to assess or investigate the allegation contained in the Protected Disclosure. This position was upheld by the High Court when it was appealed by the Complainant. This in essence means that the conduct of the investigation into the Protected Disclosure of 17 May 2018,  the outcome of the investigation  or any unhappiness experienced by the  Complainant in the assessment of the investigation, is not a matter for adjudication under the Act.

The Complainant came across in evidence as a genuine and conscientious worker however it is clear to me that his claim is seriously misconceived. I am satisfied that the factors as outlined by the High Court  in Behan v McGinley  when defining a vexatious claim apply here. I find that  that  (1) the  issue in dispute is a matter which has already been determined by a court of competent jurisdiction (The Labour Court decision upheld by the High Court) i.e., res judicata ; (2) the previous litigated  complaint is one that the Complainant has  sought to  roll forward into a subsequent Complaint, as submitted to me,  and repeated and supplemented;  (3) it is obvious to me  this  action cannot succeed. I therefore dismiss the Complaint in accordance with section 42(1) of the Workplace Relations Act 2015.

For the reasons as outlined above I dismiss the Complaint in accordance with Section 42(1) of the Workplace Relations Act 2015.

Protected Disclosures Act 2014, Penalisation, Dismissal of Complaint, Section 42(1) of the Workplace Relations Act 2015.