ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00049184

Parties:

Complaints:

Date of Adjudication Hearing:  18/06/2024

Workplace Relations Commission Adjudication Officer:  Michael McEntee

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Acts, 1998 – 2015following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

In deference to the Supreme Court ruling, Zalewski v Ireland and the WRC [2021] IESC 24 on the 6th of April 2021 the Parties were informed in advance that the Hearing would normally be in Public, Testimony under Affirmation or Affirmation would be required and full cross examination of all witnesses would be provided for.

The required Oath / Affirmation was administered to all witnesses present. The legal peril of committing Perjury was explained to all parties.

No issue regarding confidentiality arose.

Background:

1:        Opening legal Issues.

Time limits and Dual Litigation.

At the initial Hearing on the 18th June 2024 significant opening Legal issues were raised by the Respondents. These concerned, firstly, whether the proper Time limits to lodge the complaints had been observed. In addition, secondly, the issues of the complaints had, in the strong view of the Respondents, already been fully explored and disposed of in earlier cited Adjudication and Labour Court Appeal cases. The complaints presented here were an abuse of legal process as they amounted to dual litigation.

It was agreed that both Parties would advance their arguments on these points as a preliminary to the formal Adjudication.

 The Adjudication Officer indicated that he would issue a decision on the Preliminary Points which would indicate whether or not the case could proceed.

1:1        Respondent arguments on Time limits and alleged Dual Litigation

1:1:1       Time limits.

The complaints (CA-00055965- 001 and CA-00055965-002) were lodged at the WRC on the 6th April 2023. The alleged Last date of Discrimination was stated to have been the 7th April 2022 - some 364 days previously. Both the Workplace Relations Act 2015 (Section 41-subsection 6) and the Employment Equality Act,1998 (Section 77(50(a)) both refer to a six-month time limit from the date of an alleged incident for the lodging of complaints. An extension under the Acts to a 12-month period is allowable “due to reasonable cause”.

The Respondents argued that no such “reasonable cause” existed, and the Complaints are “out of time”.

The argument for the Complainant that “He was not in the right frame of mind” to bring his Complaint made no sense as during the relevant period he was actively engaged in Adjudication proceedings (ADJ -00030744 -published on the 13th October 2022,) DWT 2316, DWT 2317 (lodged at the Court on the 23rd November 2022,) and DWT 2317 & PWD239 of similar vintage.  The Respondent pointed out that the Complainant was an active participant in all proceedings/preparations and was extensively assisted by SIPTU.

To leave his Employment Equality complaints to the very last possible day was without any justifiable or “reasonable” basis. The Respondent cited case law in support.

1:1:2        Complainant Arguments on Time Limits

The Complainant argued that he was, throughout the time limits periods in question in a most stressful situation domestically with childcare issues and could not really focus on his Employment Equality cases.

He requested, almost on compassionate grounds, in his oral Arguments, an Extension to the 6 month limit.

1:2         Adjudication View and conclusions /Time Limits

Numerous Labour Court precedents are relevant. All of which, in general, follow on from the headline case of Cementation Sanska v Carroll - DWT 0338 WTC/03/2 of 2003 (quoted below) which has remained the standard.  It states

“It is the court’s view that in considering if reasonable cause exists it is for the claimant to show that there are reasons, which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd”

In this case the Complainant was, as has been stated, actively involved, assisted by SIPTU, in WRC proceedings and local discussions relating to his case throughout the period. It was noted that SIPTU were no longer a party to the current case.

The Argument that “He was not in the right frame of mind” does not stand up to reasonable Adjudication examination. No concrete evidence such as Medical Reports on the ability or otherwise of the Complainant in the relevant time period were presented.

Accordingly, it is the Adjudication decision that the complaints are “Out of Time” and cannot proceed. A sufficient argument for Reasonable cause to allow an extension of time has not been made.

1:3         Dual Litigation

This aspect was argued extensively. As the Adjudication view on Time Limits is set out above the Adjudication view of the Dual Litigation arguments is necessarily brief.

Having reviewed all the Papers submitted, the Oral Testimony & the Published Decisions of the Labour Court the Adjudication view is that the Respondent Dual Litigation argument has considerable merit. Accordingly, it is the Adjudication view that, in addition to the Time Limits issues, the Complaints are not properly justiciable at Adjudication as the grounds on which they are based have already been fully and properly considered by the Labour Court, albeit under different Employment Legislation. There is extensive case law to support this Adjudication view. Henderson v Henderson [1843] & Cunningham v Intel Ireland Ltd [2013] IEHC 207 would be the oft quoted references.

2:        Findings and Conclusions:

3: Decision:

 CA-00055965- 001 and CA-00055965-002)

Section 41 of the Workplace Relations Act 2015 and 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 of the cited Acts.

The complaints are Out of Time and cannot proceed.

The complaints are Non-Justiciable on the Dual Litigation principle.

Dated:   28th of August 2024

Workplace Relations Commission Adjudication Officer:  Michael McEntee

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