Complainant

Respondent

Parties

Michael  Gavagan

Xerox (Europe) Ltd

Representatives

  Self

Ger Connolly Mason Hayes & Curran LLP

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00051243-001

20/06/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00051243-002

23/08/2022

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

CA-00051243-004

18/07/2023

The Complainant has brought these claims in connection with his employment with Xerox Ireland Ltd that ended on 6th of July 2009. The Respondent was not the Employer, and this complaint is made against the legal entity Xerox Europe Ltd.

 As the Complainant is a lay litigant the law as it pertains to delay and res judicata was explained to him. The Complainant has previously taken a case against this Respondent many years previously. An adjournment took place after the legal explanations were provided to ensure that he understood the following:

·       Statute Barred

·       Legal Entity

·       Res Judicata

·       Jurisdiction

·       Misrepresentation that caused the delay

·       The Power of the Adjudicator to dismiss at any time if a complaint was deemed to be misconceived.

On reconvening the Complainant stated he did understand what they meant and instructed the Adjudicator to withdraw his complaint.

This Complaint form was lodged with the Commission on the 20th of June 2022.

The Complainant has a hearing disability and his son accompanied him to the hearing. Subsequently that instruction was countermanded.

CA-00051243-001 relating to Discrimination on the Ground of Disability:

It was explained to the Complainant that under Section 77A of the Employment Equality Act that:

(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.

The term was explained to mean where a case before the adjudicator was legally misconceived it could be dismissed at any time.

The Respondent has written to the Commission stating that the matters now being litigated had in fact been already heard and determined:

14 August 2023 Our ref: GCY/52392.1

MHC-32209544-1

Matter: Adjudication Reference: ADJ-00039610

Complaint Reference: CA-00051243

Complainant: Michael Gavagan

Our Client: Xerox (Europe) Limited

Dear Sir/Madam

We refer to the above matter. We note that Mr Gavagan has now withdrawn Complaint Number CA00051243-003 (his unfair dismissal claim) and instead filed a new complaint under the Protected Disclosures Act 2014. You might kindly send us a copy of this new complaint in due course.

Notwithstanding the above, we once again refer to our letter dated 11 October 2022. Mr

Gavagan’s employment ended by reason of redundancy on 6 July 2009. His “new” complaint

under the Protected Disclosures Act 2014 refers to alleged incidents which occurred during his employment meaning that this claim alone is statute barred by at least 13 years (ie allowing a maximum of 12 months from the termination of his employment in which to bring a claim). Mr Gavagan refers to information he received on foot of investigations by the Data Protection Commissioner into complaints made by him in relation to how Xerox processed personal sensitive data. Notwithstanding that these reports are being misinterpreted, they do not give Mr Gavagan a new cause of action as the Workplace Relations Commission has no jurisdiction to hear any claims under the Data Protection Acts 1998 and 2003.

The medical evidence submitted by Mr Gavagan does not alter the above in any way as it merely sets out his medical history and an unfortunate run of issues since 2021. This does not justify a 12-year delay in bringing forward these complaints. It should not be overlooked that Mr Gavagan’s previous unfair dismissal case was heard and rejected. It cannot be the case that the Respondent is being forced to continuously defend itself from clearly frivolous and vexatious claims and that it must attend hearings before an Adjudication Officer before the matter is dealt with.

It was explained to the Complainant that there were several preliminary matters that were required to be heard before the complaints could be investigated further and they were:

1.       The Complaints were statute barred

2.       The Complaints were res judicata

3.       Xerox Europe Ltd is a stranger to these matters as it was never the Complainant’s employer

4.       That the Misrepresentation being relied upon had not caused the delay.

The Adjudicator stated that on the facts it did not appear to be the case that he had jurisdiction to hear the Complaints and if that was so no issue would arise with a late submission detailing a response to all the allegations now set out.

 While the Complainant was relying on reframed legal heads of complaint, his case had already been heard many years previously and reconstituting under new legal headings many years later offended the principle of legal certainty.

The opportunity to litigate was well over. Separate to the matter of res judicata was the reality that his employment ended with Xerox Ireland Ltd in 2009 and these complaints were statute barred and were being brought against the wrong entity. The Complainant believed that any misrepresentation by his employer would allow for another rehearing of these reconstituted complaints. That might occur where there was a direct link between the delay and the misrepresentation. There is no evidence before this tribunal that is the case.

The Complainant has never brought any of these complaints previously. It was put to the Complainant that it was not obvious that the data breaches constitute misrepresentation.

Section 77(6) of the Act states:

(6) Where a delay by a complainant in referring a case under this section is due to any misrepresentation by the respondent, subsection (5)(a) shall be construed as if the references to the date of occurrence of the discrimination or victimisation were references to the date on which the misrepresentation came to the complainant’s notice

The Complainant was given time to consider the legal basis for progressing his claims and while it was communicated by him at the hearing that he was withdrawing his claim on reflection he believed that he was not being heard and had been put under pressure to withdraw the claim. In a subsequent email to the Commission that instruction to withdraw was countermanded.

CA-00051243-002 Equal Status Act:

On the papers the following matter has been determined.

The Complainant’s employment ended with Xerox Ireland Ltd by reason of redundancy in July 2009.

In correspondence dated 23rd August 2022 the Complainant wrote to the Commission as follows:

Re. Adjudication file adj 00039610 and Complaint ref. 00051243/1

Dear Mr Patrick Whelan

Many thanks for your email letter dated 8th August. I have sent my consent to receiving email

communications as requested.

As per your request, in addition to the breaches of the Employment Equality Act 1998, I would like to include complaints against the Respondent Xerox Europe for: the following:

(!)breaching sections 3 and 4 of the Equal Status Act 2000

(2) breaching section 27 of the Safety Health and Welfare at Work act 2005 as that section

references the Unfair Dismissals Acts 1997 to 2001.

You might let me know when it is appropriate to submit my documentary evidence to your office, and whether that evidence is required to be in electronic or hardcopy form.

Thanking you

Michael Gavagan.

On the 31st of August 2022 the Commission write requesting more information about this complaint.

The Complainant has failed to properly ground his Complaint as required under the Equal Status Act and to detail the ground of discrimination against Xerox Europe Ltd. The Complainant has not detailed the service complained of, the relevant comparator, and the alleged prohibited conduct. Further no prima facie case or primary facts have been made out to raise an inference of discrimination. I determine that the Complaint is legally misconceived.

CA-00051243-004 Protected Disclosure:

On the papers the matter has been determined. The Complainant is not an employee of Xerox Europe Limited and as the respondent is not his employer, he has no recourse under the Act to bring this complaint against this Respondent. Also, the Complainant’s employment ended by reason of redundancy in July 2009 and the Protected Disclosures Act 2014 now relied upon was enacted in July 2014. The Workplace Relations Act 2015 provides that a complaint must be brought within 6 months of the alleged penalisation for wholly or mainly making a protected disclosure. The facts of this case are contextualized in an employment that ended in 2009. The Complaint is misconceived.

See preliminary decision

See preliminary decision

See preliminary decision

CA-00051243-004 Protected Disclosure:

On the papers the matter has been determined. The Complainant is not an employee of Xerox Europe Limited and as the respondent is not his employer, he has no recourse under the Act to bring this complaint against this Respondent. Also, the Complainant’s employment ended by reason of redundancy in July 2009 and the Protected Disclosures Act 2014 now relied upon was enacted in July 2014. The Workplace Relations Act 2015 provides that a complaint must be brought within 6 months of the penalisation for wholly or mainly making a protected disclosure. The facts of this case are contextualized in an employment that ended in 2009. The Complaint is misconceived

Section 42 of the Workplace Relations Act provides for a Complaint to be dismissed at any time:

42. (1) An adjudication officer may, at any time, dismiss a complaint or dispute referred to him or her under section 41 if he or she is of the opinion that it is frivolous or vexatious.

And section 42 of the Act provides that a complaint can be dismissed at any time if it is deemed to be frivolous and or vexatious. These are legal technical terms and as explained Delaney and McGrath on Civil Procedure 4th Edition 2018 mean:

The meaning of the words “frivolous or vexatious” as used in the context of s.10(1)(b)(ii) of the Data Protection Act 1988 as amended was considered by Birmingham J in Nowak v Data Protection Commissioner,28 where he stated 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.” This description was referred to by Irvine J in her judgment in the Court of Appeal in Fox v McDonald,29 where she stated that “the word ‘frivolous’ when used in the context of O. 19 r, 28 is usually deployed to describe proceedings which the court feels compelled to terminate because their continued existence cannot be justified having regard to the relevant circumstance.”

As I have formed the opinion that the matter is legally misconceived, I dismiss the Complaint.

CA-00051243-001 relating to Discrimination on the Ground of Disability

At the hearing the Complainant stated that he brought this Complaint was about the failure of his employer to reasonably accommodate him.

The facts of this case relate to a Car that the Complainant believed had poor lumbar seat support. As he had a bad back it is alleged that his employer failed to reasonably accommodate him with a more suitable seat/car. As the Complainant’s employment ended in July 2009 with Xerox Ireland Ltd this Complaint is statute barred. There was nothing to prevent the Complainant from bringing this complaint on time and to present evidence to the tribunal on the merits of his case 14 years ago. The data breaches set out do not relate to Xerox Europe Ltd and cannot ground his claim that Xerox Europe Ltd due to their misrepresentation estopped him from bringing his claim on time. There is no merit in that claim, and it is misconceived as they were never his employer.

Section 77(A) provides that:

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

The Data Breaches relied upon by the Complainant do not amount to misrepresentation that caused or contributed to the delay in bringing this complaint. The Complaint is statute barred. For these reasons I dismiss this complaint as I have formed the view that it is misconceived.

CA-00051243-002 Equal Status Act:

On the papers the following matter has been determined.

Section 22 of the Act provides that:

22.—(1) The Director 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

The Complainant has failed to properly ground his Complaint as required under the Equal Status Act and to detail the ground of discrimination, identify the comparator, and the alleged prohibited conduct. Further no prima facie case has been made out to raise an inference of discrimination. I determine that the Complaint is legally misconceived, and I dismiss the complaint.

Misconcieved.