Complainant

Respondent

Parties

George  McLoughlin

Department Of Enterprise Trade & Employment

Complainant

Respondent

Anonymised Parties

Representatives

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00055488-001

09/03/2023

This complaint was received by the Workplace Relations Commission on 9th of March 2023.

The complainant provided the following information in his complaint form:

The complainant commenced employment of the 4th of January 2008 and his employment ended on 08/01/2017.

“I am owed a total of six weeks annual leave by my employer as follows: My employer reneged on an agreement reached between NERA Deputy Director Padraig Dooley, HR Manager John Hughes and Civil Service Mediator Joe McDermott in 2015 that I be awarded two weeks additional annual leave to compensate me for the stress and distress caused to me by NERA management's mishandling of utterly unfounded complaints against me submitted by an employer to the Minister in October/November 2014 in his efforts to have me removed from the investigation of complaints against him by two of his former employees. As a result of NERA management reneging on an agreement they had freely entered into at mediation, I was deprived of the two weeks annual leave I was entitled to. Subsequent to this, in July 2016, I was deprived of a further four weeks annual leave when WRC and DJEI management prevented me resuming work when certified fit to do so by my GP and cardiologist on the pretext that they were waiting on legal advice which, they claimed, would allow them to prevent me resuming duties on the basis of legal action I had taken to vindicate my constitutional right to my good name against the defamatory allegations against me by the employer referenced above. This is a brief summary of the matter at issue. Full details of the context and background will be provided at the adjudication hearing.

A letter issued to the complainant on the 21st of March 2023 acknowledging receipt of complaint form received on 9th of March 2023. It highlighted the following:

“An Adjudication Officer cannot entertain a complaint if it has been presented after the expiration of the period of 12 months beginning on the date of the contravention to which the complaint relates. It would appear from the information submitted by you that this complaint was submitted outside of the 12 months statutory timeline.

An Adjudication Officer has no power to extend the time limit beyond 12 months.”

The complainant on the 21st of March 2023 replied to correspondences.

Re your letter of 21st March ref CA-00055488 please note that, in line with ECJ Ruling C-120/21 of September 2022, the claim to payment in lieu of holidays only becomes time-barred if the employer has fulfilled its obligation to indicate that the holiday must be taken. It is therefore the responsibility of the employer to notify employees of any impending expiry of annual leave entitlements and to document such notification and only then can the regular limitation begin to run.

As the Adjudication Officer delegated by the Director General of the Workplace Relations to investigate the above referenced complaint submitted to the Workplace Relations Commission on 9th of March 2023, I have carefully read the complaint referred.

My findings and conclusions are as follows:

At its core this is a complaint directed against the Department of Enterprise Trade & Employment under the Organisation of Working Time Act, 1997 which was submitted in 2023 when the complainant’s employment ended in 2017 and is wholly out of time notwithstanding the misconceived reference to  Case C‑120/21.  Against the background of the complainant’s narrative above, after careful consideration, I have decided to dismiss this matter in the exercise of my powers under section 42 Workplace Relations Act 2015.

“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.”

There is no definition of the terms “frivolous” and “vexatious” in the Superior Court rules. However, it is generally accepted that these terms are legal terms which are often used interchangeably: Farley v Ireland, unreported, Supreme Court, May 1, 1997 at p.3 per Barron J.; Murray v Fitzgerald [2012] IEHC 20 at p.16 per White J. The High Court’s decision in Patrick Kelly v The Information Commissioner [2014] IEHC 479 [99] 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.”

In practice, frivolous and/or vexatious claims may arise under many guises. In Re Lang Michener & Fabian, the Ontario High Court listed a number of factors/indicia—which factors were endorsed by Laffoy J. in the High Court in Loughrey v Dolan [2012] IEHC 578 at p.7 per Laffoy J.— 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 consider that this case is so clearly out of time that this complaint cannot succeed.

The complaint is dismissed as per Section 42 of the Workplace Relations Act 2015.

Out of time