ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00035703
Parties:
| Complainant | Respondent |
Parties | Professor Dr. Joseph Chikelue Obi | Heather Humphreys (TD) |
Representatives |
| Maria Browne CSSO |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000 | CA-00046842-001 | 07/10/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000 | CA-00046842-002 | 07/10/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00046842-003 | 07/10/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00046842-004 | 07/10/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00046842-005 | 07/10/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00046842-006 | 07/10/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00046842-012 | 07/10/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under section 81E of the Pensions Act, 1990 as amended by the Social Welfare (Miscellaneous Provisions) Act 2004 | CA-00046842-013 | 07/10/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under section 86 of the Employment Equality Act, 1998 | CA-00046842-014 | 07/10/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000 | CA-00046842-015 | 07/10/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 24 of the National Minimum Wage Act, 2000 | CA-00046842-016 | 07/10/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 9 of the Industrial Relations (Miscellaneous Provisions) Act 2004 | CA-00046842-017 | 07/10/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 20(1) of the Industrial Relations (Amendment) Act, 2015 | CA-00046842-018 | 07/10/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under Schedule III of the Competition Act, 2002-2010 | CA-00046842-019 | 07/10/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under Schedule 6 of the Consumer Protection Act, 2007 | CA-00046842-020 | 07/10/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Criminal Justice Act 2011 | CA-00046842-021 | 07/10/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 | CA-00046842-022 | 07/10/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 | CA-00046842-023 | 07/10/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 6 of the European Communities (Protection of Employment) Regulations 2000 | CA-00046842-024 | 07/10/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00046842-025 | 07/10/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00046842-026 | 07/10/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00046842-027 | 07/10/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 16 of the Protection of Employees (Part-Time Work) Act, 2001 | CA-00046842-028 | 07/10/2021 |
Workplace Relations Commission Adjudication Officer: Orla Jones
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015, Section 39 of the Redundancy Payments Acts 1967 – 2014, Section 8 of the Unfair Dismissals Acts, 1977 - 2015, Part VII of the Pensions Acts 1990 – 2015, Section 79 of the Employment Equality Acts, 1998 - 2015, and Section 25 of the Equal Status Act, 2000, the complaints were referred to me by the Director General.
Background:
The complainant submitted claims under Section 41 of the Workplace Relations Act, 2015, Section 39 of the Redundancy Payments Acts 1967 – 2014, Section 8 of the Unfair Dismissals Acts, 1977 - 2015, Part VII of the Pensions Acts 1990 – 2015, Section 79 of the Employment Equality Acts, 1998 - 2015, and Section 25 of the Equal Status Act, 2000 on 07/10/2021. |
Summary of Complainant’s Case:
The complainant who states that he is self-employed submits that the respondent has breached Section 41 of the Workplace Relations Act, 2015, Section 39 of the Redundancy Payments Acts 1967 – 2014, Section 8 of the Unfair Dismissals Acts, 1977 - 2015, Part VII of the Pensions Acts 1990 – 2015, Section 79 of the Employment Equality Acts, 1998 - 2015, and Section 25 of the Equal Status Act, 2000. |
Summary of Respondent’s Case:
The respondent disputes all claims and submits that the complainant is not and never has been an employee of the named respondent. The respondent submits that these claims should be dismissed under Section 42 of the Workplace Relations Act, 2015. |
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000 | CA-00046842-001 | 07/10/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000 | CA-00046842-015 | 07/10/2021 |
Findings and Conclusions:
Section 22 of the Equal Status Acts provides for dismissal of claims as follows: - “22. — The Director may dismiss a claim at any stage in the investigation if he or she is of opinion that the claim has been made in bad faith or is frivolous or vexatious, misconceived or relates to a trivial matter.” It is widely accepted by the Courts that the terms 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 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 which 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, 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.” I am also mindful of the recent Court of Appeal decision; Olumide Smith and Office of the Ombudsman and Adam Kearney and Bernard Traynor and Peter Tyndall. In that case, it was found that the appellant failed to adduce any evidence at all, never mind evidence sufficient to meet even the low threshold of a prima facie case and that the appellant’s claims amount to no more than mere assertion. In relation to that case, it was further held; “It is clear that the appellant has researched and fully understands the law and legal principles applicable to the complaints he has advanced under the Equal Status Acts. However, he resolutely refuses to accept that such complaints, in order to succeed, must be grounded on sufficient evidence to establish, in the first instance, a prima facie case of racial discrimination. It is difficult to avoid the conclusion that, faced with a decision he does not like, or that is in some way adverse to his interests, the response of the appellant is invariably to accuse the decision-maker of racial discrimination. This is a wholly unacceptable abuse of process, is highly and gratuitously offensive to those against whom he levels such unsubstantiated complaints and perhaps worst of all, is potentially undermining of the very processes put in place by the Oireachtas to root out discriminatory practices and to provide redress to those affected by such practices where they are truly warranted. This is so not least because of the very significant time required to be expended by various organs of the State in dealing with the appellant’s spurious complaints”. I find that there are various similarities in respect of that case which are analogous to the within matters. It is further noteworthy that the complainant in this case has taken circa 120 claims in relation to these matters which appear to have stemmed from the complainant’s application for the PUP scheme which application was processed by the Department of Social Protection in accordance with guidelines in place at the time. In conclusion, based on all of the foregoing, I am satisfied that the within claims are misconceived. On that basis, I dismiss the complaints in accordance with Section 22 of the Equal Status Acts. |
Decision:
Section 25 of the Equal Status Acts, 2000 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act.
I find that the within complaints are misconceived. On that basis, I dismiss the complaints in accordance with section 22 of the Equal Status Acts. |
Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000 | CA-00046842-002 | 07/10/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00046842-003 | 07/10/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00046842-004 | 07/10/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00046842-005 | 07/10/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 24 of the National Minimum Wage Act, 2000 | CA-00046842-016 | 07/10/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 9 of the Industrial Relations (Miscellaneous Provisions) Act 2004 | CA-00046842-017 | 07/10/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 20(1) of the Industrial Relations (Amendment) Act, 2015 | CA-00046842-018 | 07/10/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under Schedule III of the Competition Act, 2002-2010 | CA-00046842-019 | 07/10/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under Schedule 6 of the Consumer Protection Act, 2007 | CA-00046842-020 | 07/10/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Criminal Justice Act 2011 | CA-00046842-021 | 07/10/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 6 of the European Communities (Protection of Employment) Regulations 2000 | CA-00046842-024 | 07/10/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00046842-025 | 07/10/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00046842-026 | 07/10/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00046842-027 | 07/10/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 16 of the Protection of Employees (Part-Time Work) Act, 2001 | CA-00046842-028 | 07/10/2021 |
Findings and Conclusions:
I note that these claims and many others lodged by the within complainant stemmed from the complainant’s application for the PUP scheme which application was processed by the Department of Social Protection in accordance with guidelines in place at the time. The complainant in his application claimed to be self-employed and has not at any time indicated that he had an employment relationship with the named respondent nor was he a prospective employee or job applicant of the named respondent. 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.” Having taken all of this into consideration, I am satisfied that the complaints in this case are misconceived and are incorrectly based in law, and I dismiss these claims in accordance with Section 42(1) of the Workplace Relations Act 2015. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
For the reasons as outlined above I dismiss the Complaints in accordance with Section 42(1) of the Workplace Relations Act 2015. |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00046842-006 | 07/10/2021 |
Findings and Conclusions:
I note that this claim and many others lodged by the within complainant stemmed from the complainant’s application for the PUP scheme which application was processed by the Department of Social Protection in accordance with guidelines in place at the time. The complainant in his application claimed to be self-employed and has not at any time indicated that he had an employment relationship with the named respondent nor was he a prospective employee or job applicant of the named respondent. Section 8 A of the Unfair Dismissals Act states: 8A. (1) Sections 42 and 43 of the Workplace Relations Act 2015 shall apply to a claim referred to an adjudication officer under section 8 as they apply to a complaint or dispute referred to an adjudication officer under section 41 of that Act, subject to the following modifications: (a) references to a complaint or dispute shall be construed as references to a claim referred to an adjudication officer under section 8 of this Act; (b) the reference to section 41 shall be construed as a reference to section 8 of this Act; and (c) any other necessary modifications. 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.” Having taken all of this into consideration, I am satisfied that the complaints in this case are misconceived and are incorrectly based in law, and I dismiss these claims in accordance with Section 42(1) of the Workplace Relations Act 2015 as inserted by Section 8 A of the Unfair Dismissals Act 1977 revised. |
Decision:
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
I am satisfied that the complaint in this case is misconceived and is incorrectly based in law, and I dismiss this claim in accordance with Section 8A of the Unfair Dismissals Act 1977 revised. |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00046842-012 | 07/10/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under section 86 of the Employment Equality Act, 1998 | CA-00046842-014 | 07/10/2021 |
Findings and Conclusions:
I note that this claim and numerous others stem from the complainant’s application for the PUP scheme which application was processed by the Department of Social Protection in accordance with guidelines in place at the time. The complainant in his application claimed to be self-employed and has not at any time indicated that he had an employment relationship with the respondent nor was he a prospective employee or job applicant of the respondent. This complaint relates to discrimination under the Employment Equality Acts 1998- 2015 (‘EEA’). Section 77(1) of the EEA provides that “a person who claims— (a) to have been discriminated against or subjected to victimisation, (b) to have been dismissed in circumstances amounting to discrimination or victimisation, (c) not to be receiving remuneration in accordance with an equal remuneration term, or (d) not to be receiving a benefit under an equality clause, in contravention of this Act may, subject to subsections (3) to (9), seek redress by referring the case to the Director General of the Workplace Relations Commission.” Under the EEA, Section 77(4)(b) defines the “respondent” means the person who is alleged to have discriminated against the complainant or, as the case may be, who is responsible for providing the remuneration to which the equal remuneration term relates or who is responsible for providing the benefit under the equality clause or who is alleged to be responsible for the victimisation.” The terms “employee”, “employer” and “contract of employment” are defined in section 2 of the EEA as follows: ‘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; ‘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; I note that there is no employment relationship between the complainant and the respondent in this case. I am satisfied that the Complainant in this case has lodged a large number of complaints against this respondent as well as large numbers of claims against other respondents. He has in his claim form stated that he was self-employed. I am satisfied that such complaints as against the named respondent do not comply with the requirements of section 77(1) of the Employment Equality Acts. In examining this matter, I am guided by Section 77A which states: Section 77A. (1) The Director General of the Workplace Relations Commission may dismiss a claim at any stage if of opinion that it has been made in bad faith or is frivolous, vexatious, or misconceived or relates to a trivial matter. It is clear that for a claim to be dismissed as misconceived under Section 77A of the Employment Equality Acts, the Director General must be wholly satisfied that the claim is based on a fundamental misunderstanding of the legislation, or that there is no arguable cause of action or finally, that it is entirely unfounded. I note that the Labour Court had upheld a plethora of such misconceived decisions from the Equality Tribunal in this specific area of law, see in particular Department of Defence v Barrett EET 1/2008. I note that Birmingham J. provided a legal definition of “frivolous” in Nowak v. Data Protection Commissioner [2012] IEHC 499, he held that: “frivolous, in this context does not mean only foolish or silly, but rather a complaint that was futile, or misconceived or hopeless in the sense that it was incapable of achieving the desired outcome”. Such cases can and are dealt with through the mechanism available via Section 77A of the Employment Equality Acts for good reason. In that respect I note the decision in Goode Concrete v. CRH plc [2012] IEHC 116 were, at para. 36, it was stated: - “A plaintiff's right of access to the Courts is not absolute and the Court has jurisdiction to prevent the right being abused by, for example, dismissing a case for inordinate delay or as frivolous, vexatious or bound fail in order to prevent injustice to a defendant (see Barry v Buckley [1981] IR 306).” Having taken all of this into consideration, I am satisfied that the complaints in this case are misconceived and are incorrectly based in law, and I dismiss these claims in accordance with Section 77A of the Employment Equality Acts. |
Decision:
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
I am satisfied that the complaints in this case are misconceived and are incorrectly based in law, and I dismiss these claims in accordance with Section 77A of the Employment Equality Acts. |
Complaint seeking adjudication by the Workplace Relations Commission under section 81E of the Pensions Act, 1990 as amended by the Social Welfare (Miscellaneous Provisions) Act 2004 | CA-00046842-013 | 07/10/2021 |
Findings and Conclusions:
Section 11 of WRA.
“(4) The Commission shall have all such powers as are necessary or expedient for the performance of its functions.
(5) The Commission shall perform its functions through or by the Director General or any member of the staff of the Commission duly authorised in that behalf by the Director General.”
The within complainant has submitted circa 120 claims in relation to these matters. Both parties advised the WRC that the complainant is not and has never been an employee of the respondent. The complainant in his complaint form states that he is self-employed. He has also advised that the reason behind his claims and many other claims stemmed from the complainant’s application for the PUP scheme which application was processed by the Department of Social Protection in accordance with guidelines in place at the time. The complainant in his application claimed to be self-employed and has not at any time indicated that he had an employment relationship with the respondent nor was he a prospective employee or job applicant of the respondent. The complainants claim states that he was discriminated against/victimised in respect of an occupational pension. Section 81E of the Pensions Act set outs the general right to complain as follows: ‘(1) A person who claims not to be receiving, or not to have received, equal pension treatment in accordance with this Part or to have been penalised in circumstances amounting to victimisation may, subject to subsections (2) to (6) and subsections (1) and (2) of section 81F, seek redress by referring the case to the Director.’ (2) If a person claims to have been dismissed— (a) in circumstances amounting to a breach of the principle of equal pension treatment by another in contravention of this Part, or (b) in circumstances amounting to victimisation, then, subject to subsection (3), a claim for redress for the dismissal may be brought to the Labour Court and shall not be brought to the Director. (3) If the grounds for such a claim as is referred to in subsection (1) or (2) arise in relation to a breach of the principle of equal pension treatment on the gender ground, then, subject to subsections (4) to (7), the person making the claim may seek redress by referring the case to the Circuit Court, instead of referring it to the Director under subsection (1) or, as the case may be, the Labour Court under subsection (2). (4) In this Part, in relation to a case referred under any provision of this section or section 81F— ‘the complainant’ means the person by whom it is referred; ‘the respondent’ means any or all of the following— (a) the person who is alleged to have discriminated against the complainant in breach of the principle of equal pension treatment, (b) the person who is responsible for admitting members to a scheme, (c) the person who is alleged to be responsible for the victimisation and includes the trustees of an occupational benefit scheme. (5) Subject to subsection (6), a claim for redress in respect of a breach of the principle of equal pension treatment or victimisation may not be referred under this section after the end of the period of 6 months from the date of termination of the relevant employment. In examining this matter, I am guided by Section 42(1) of the Workplace Relations Act 2015 which 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.” In addition, I note that 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.” Rules of Court It is an abuse of the process of the courts to permit the court's time to be taken up with litigation which can confer no benefit on a plaintiff. The Complainant in this case alleges that the Respondent breached the principle of equal pension treatment. The Complainant in his complaint form states that he is self-employed. He has also advised that the reason behind his claims and many other claims stemmed from the complainant’s application for the PUP scheme which application was processed by the Department of Social Protection in accordance with guidelines in place at the time. The complainant in his application claimed to be self-employed and has not at any time indicated that he had an employment relationship with the respondent nor was he a prospective employee or job applicant of the respondent. Separate to this and without prejudice to that position, the Complainant’s complaint stems from interactions with the Respondent in the course of its statutory adjudicative duties. Having taken all of the above into consideration, I am satisfied that the complaint in this case is misconceived and is incorrectly based in law, and I dismiss this claim in accordance with the powers conferred under Section 11 of the Workplace Relations Act 2015. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act and Part VII of the Pensions Acts, 1990 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under the Act.
Accordingly, I dismiss this claim in accordance with Section 11 of the Workplace Relations Act 2015. |
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 | CA-00046842-022 | 07/10/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 | CA-00046842-023 | 07/10/2021 |
Findings and Conclusions:
Section 11 of WRA.
“(4) The Commission shall have all such powers as are necessary or expedient for the performance of its functions.
(5) The Commission shall perform its functions through or by the Director General or any member of the staff of the Commission duly authorised in that behalf by the Director General.”
The within complainant has submitted circa 120 claims in relation to these matters. Both parties advised the WRC that the complainant is not and has never been an employee of the respondent. The complainant in his complaint form states that he is self-employed. He has also advised that the reason behind his claims and many other claims stemmed from the complainant’s application for the PUP scheme which application was processed by the Department of Social Protection in accordance with guidelines in place at the time. The complainant in his application claimed to be self-employed and has not at any time indicated that he had an employment relationship with the respondent nor was he a prospective employee or job applicant of the respondent. REDUNDANCY PAYMENTS ACT 1967 Classes of persons to which this Act applies. 4.— [(1) Subject to this section and to section 47, this Act applies to— (a) employees employed in employment which is insurable for all benefits under the Social Welfare Consolidation Act 2005, (b) employees who were so employed in such employment in the period of four years ending on the date of termination of employment, and (c) employees who have attained the age of 66 years and are in employment that would be insurable for all benefits under the Social Welfare Consolidation Act 2005 but for— (i) their attainment of that age, or (ii) the fact that the employment concerned is excepted employment by reason of paragraph 2, 4 or 5 of Part 2 of Schedule 1 to that Act.] In examining this matter, I am guided by Section 42(1) of the Workplace Relations Act 2015 which 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.” In addition, I note that 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 alleges that the Respondent breached the Redundancy Payments Act, 1967 and the Protection of Employment Act, 1977. Section 4 of the Redundancy Payments Act provides that the Act applies to “employees employed in employment” in various circumstances. Thus, the benefit of the Act is confined to those who are employed and are taking a claim in respect of their employment. The Complainant in his complaint form states that he is self-employed. He has also advised that the reason behind his claims and many other claims stemmed from the complainant’s application for the PUP scheme which application was processed by the Department of Social Protection in accordance with guidelines in place at the time. The complainant in his application claimed to be self-employed and has not at any time indicated that he had an employment relationship with the respondent nor was he a prospective employee or job applicant of the respondent. Separate to this and without prejudice to that position, the Complainant’s complaint stems from interactions with the Respondent in the course of its statutory adjudicative duties. Rules of Court It is an abuse of the process of the courts to permit the court's time to be taken up with litigation which can confer no benefit on a plaintiff. Having taken all of this into consideration, I am satisfied that the complaints in this case are misconceived and are incorrectly based in law, and I dismiss these claims in accordance with the powers conferred under Section 11 of the Workplace Relations Act 2015. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act and Section 39 of the Redundancy Payments Acts 1967 – 2012 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.
Accordingly, I dismiss these claims in accordance with Section 11 of the Workplace Relations Act 2015. |
Dated: 13/02/2023
Workplace Relations Commission Adjudication Officer: Orla Jones
Key Words:
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