Complainant

Respondent

Anonymised Parties

Employee

Employer

Representatives

Owen McCormack Trade Union A

Jamie Grimes DAS Ireland

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 16 of the Protection of Employees (Part-Time Work) Act, 2001

CA-00027656-001

09/04/2019

The Complainant is seeking adjudication by the Workplace Relations Commission under Section 16 of the Protection of Employees (Part-Time Work) Act, 2001 and has submitted that in respect of  conditions of employment she has been treated less favourably than a comparable full time employee (CA-00027656-001).

The Complainant arrived in Dublin as an international student at Trinity  with over 5 years of English Language Teaching experience. The Complainant submitted that given the breadth and quality of her experience and education and the amount of English Language Teaching work available in Dublin, the Complainant started  sending out  numerous applications to advertised positions.

The Complainant did not receive any interview calls for almost 8 months until a friend put her in contact with the manager at the Respondents Institution. Ultimately, the Complainant got an interview in or about  January 2018.

The Complainant  was not given a contract and was told she would be kept as a 'cover teacher' for when someone calls sick and eventually she would  get some more permanent hours. The Complainant submitted that all of this happened in a work place where she believed she had significantly more experience and education than her other colleagues.

The Complainant  was given last minute cover work which she took up as she needed the monies but then the Respondent stopped giving her any hours while teachers, with significantly less experience were been given contracts and a mandated number of hours.

The Complainant  had made her availability known to the Respondent and told them about the excellent feedback that she had received from her students.

The Complainant  continued to request the Respondent to give her a contract and  hours of work  as she relied on this employment for her livelihood  but had been given no legitimate reason or explanation for why lesser experienced employees, in her opinion,  were favoured over her.

The Complainant submitted that her last day of work with the Respondent was on or about the 21st March 2018 and ultimately a P45 was  issued in or about  September 2018.

In relation to the preliminary application that this matter is res judicata, the Complainant replied by written submissions that as per the rule in Henderson,  the Respondent is not being “vexed” twice,  the issue of the Respondent’s changed address can be regarded as special circumstances  and there is no attempt to run parallel proceedings.

In relation to the preliminary application that this matter is statute barred, the Complainant submitted that as this case was received by the Workplace Relations Commission on the 9th April 2019 within the 12 month time frame. The reasonable ground for the failure to lodge this complaint within the six month time frame was the outstanding original case (ADJ14941) which was issued on the 16th October 2018.

In relation to the substantive matter, the Complainant submitted that she was treated in a less favourable matter than comparable employees and in particular she was denied classes which were available and often given to newer employees with less teaching experience. Further, the Complainant submitted that she was denied classes and treated less favourably because she fell into the category of non-native and non-white.

The Complainant confirmed  that the substantive matter is in relation Protection of Employees (Part-Time Work) Act, 2001 however she submitted that the discrimination on the basis of race is alleged as one of the reasons for less favourable treatment in respect of other employees.

This Complaint was received by the Workplace Relations Commission on the 9th April 2019.

The Respondents provided written submissions in relation to the substantive complaint  but  also raised preliminary objections to this matter proceeding to hearing.

The Respondent has submitted that this matter is res judicata as this complaint had already been the subject of an adjudication hearing (ADJ-0001491) and a decision issued on the 16th October 2018. Further, it is submitted that this complaint is statute barred as the Complainant has not worked with the Respondent since March 2018 and as the Complaint was received on the 9th April 2019 this is over the 12 month period. Even if it was found that the Complainants employment ceased at a later date, the issuing of the P45 in September 2018, this still results in the matter being statute barred as no explanation has been proffered for the failure to lodge said complaint within the 6 month period of the date of her termination of employment.   

However, without prejudice to the preliminary applications the substantive complaint is denied. The Respondent submitted that the Complainant commenced employment with the Respondent on a relief work\part time\casual basis and in keeping with such a position the Complainant had irregular hours. The Respondent stated that the Complainant in the course of her application and interview stated that she was studying in college and was only looking for casual hours.

In that regard, in 2018 the Complainant worked 13 hours in January, 52 hours in February and 35.75 hours in March whereupon she left the jurisdiction and returned to her home country.

The Respondent submitted that the Complainant was unreliable, difficult and arrogant in her attitude towards student and staff members and was the subject matter of numerous complaints from students. Further, she demonstrated on a number of occasions that she could not commit to regular hours.

The Respondent submitted that the Complainant was not penalised within the meaning of the aforesaid act. The Complainant was unavailable for work directly after she had requested a permanent class and moreover it was the conduct of the Complainant that hindered her ongoing employment with the Respondent. 

The Respondent submitted that without prejudice to the aforementioned preliminary objections the Complainants substantive claim is entirely without merit.

 In the circumstances of this matter, I have carefully listened to the evidence tendered in the course of this hearing by both parties. 

In relation to the first preliminary objection, the subject matter of the complaint herein has already been the subject of an adjudication hearing (ADJ-00014941) and a decision issued on the 16th October 2018.

In the original complaint the Complainant entered the incorrect address of the Respondent. Consequently the Respondent never received notification of the hearing date and  the matter was heard in their absence and ultimately a decision issued in the Complainants favour.

Once the Respondent became aware of the decision, which was outside of the time to appeal, they contacted the Workplace Relations Commission. Ultimately, the matter was referred to the Legal Proceedings Committee of the WRC and as per letter of the 26th March 2019 they declined to seek enforcement of the aforementioned decision due to the Respondent not receiving notification of the hearing and the incorrect use of the business name of the Respondent. Following the issuing of the letter of the 26th March 2019 the Complainant lodged the Complaint herein, the subject matter of this decision, on the 9th April 2019.

The case of Henderson v. Henderson (1843) 3 Hare 100  deals with the issue of dual proceedings, in the said case Wigram stated as follows:

‘[W]here a given matter becomes the subject matter in and of adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of Res Judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion, and pronounce judgement, but to every point which properly belonged to the subject of litigation, and to which the parties exercising reasonable diligence, might have brought forward at the time’

There was further discussion of the rule in Henderson  in Woodhouse v Consignia Plc [2002] 1 WLR 2558;

".. at least as important is the general need, in the interests of justice, to protect the respondents to successive applications in such circumstances from oppression. 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.

Hedigan, J cited the above passage with approval in Intel v. Cunningham [2013] IEHC 207 and further stated;

“Thus 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. This is a rule that is of benefit to both plaintiffs and defendants, to the courts themselves and thus to the public interest.”

In A.A. V Medical Council [2003] 4 IR 302, 316, Birmingham quoted with approval a passage in Johnson v Gore Wood & Co[2002] 2 AC 1, 31 which identifies the rule in Henderson v. Henderson as an aspect of the doctrine of abuse of process, where he stated:

‘Henderson v Henderson as now understood…  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. The public interest is reinforced by the current on efficiency and economy in the conduct of litigation, in the interests of the parties and the pubic as a whole’

In S.M v Ireland [2007] 3 IR 283, 295, Kearns J stated with regard to the rule on Henderson v. Henderson that

 ‘the purpose of the rule is to uphold an important principle of public policy which demands, in the interests of justice, that defendants are not exposed to successive suits where one would do’.

In the circumstances of this case the issue to be determined is whether there are special circumstances which would allow the  substantive matter to be heard although a decision has already has been made in relation to the complaint. The Complainant submits that special circumstances do apply where the decision is unenforceable and in effect there has been no outcome. However, the Complainant accepts that the facts in this complaint are identical with the earlier complaint. There is currently a decision in relation to this matter which, although unenforceable, has not been set aside.

I am therefore satisfied that on the balance of probabilities that the Complainant has not been able to demonstrate any special circumstances whereby the substantive matter can be heard again. There are no other facts that were not litigated on the previous occasion. There was an outcome to the original complaint and it was found to be in the Complainants favour. I am satisfied there is no distinction between the matter previously decided and this current complaint.

Further, and for the avoidance of doubt, in relation to the preliminary objection in relation to time limits,  Sections 41 (6) of the Workplace Relations Act 2015 states:

(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

and Section 41(8) states:

(8) An Adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the director general after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

The Complainants last worked for the Respondent  in or about the 21st March 2018. The Complainant informed the Respondent on the 26th March 2018 that she was returning to her home country until the end of April 2018. This Complaint was lodged on the 9th April 2019 which is over 12 months since the alleged contravention of the aforesaid act. 

In relation to this preliminary objection, I am therefore satisfied on the balance of probabilities that this matter is statute barred as per section 41 of the Workplace Relations Act, 2015 where even if reasonable cause has been demonstrated the Complainant is still outside the requisite 12 month period.

I find that the Complaint (CA-00027656-001) made pursuant to Section 16 of the Protection of Employees (Part-Time Work) Act, 2001 is not well founded.