ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00046678

Parties:

Complaint(s):

Date of Adjudication Hearing:  02/10/2023

Workplace Relations Commission Adjudication Officer:  Brian Dalton

Procedure:

In accordance with Part VII of the Pensions Acts 1990 - 2015following the referral of the complaint(s)to me by the Director General, I inquired into the complaint(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s).

Background:

Preliminary Matter:

This matter has previously been adjudicated upon.

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. 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 complaint.

 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. 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.

The Complainant’s employment ended by reason of redundancy in July 2009 and the Protected Disclosures Act 2014 now also being 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.

Dismiss Claim as Misconceived:

I also note as cited in Delaney and McGrath that the Superior Courts have clarified when claims in the courts should be dismissed as misconceived:

Basis on which the Jurisdiction Will Be Exercised

16-06

It is well-established that the jurisdiction conferred by Order 19, rule 28 is exercisable by reference to the pleadings only. In McCabe v Harding11 O'Higgins CJ stressed that, in order for rule 28 to apply, “vexation or frivolity must appear from the pleadings alone”, a point that was reiterated by Costello J in Barry v Buckley,12 who stated that “the court can only make an order under this rule when a pleading discloses no reasonable cause of action on its face”. This basic principle was reaffirmed by Costello J in D.K. v King,13 where he stated that rule 28 only applies where it can be shown that the text of the plaintiff’s summons or statement of claim discloses no reasonable cause of action or that the action is frivolous or vexatious. So, for the purposes of considering whether to accede to an application based on rule 28, the court should consider the pleadings14 only, ignoring any affidavit evidence filed,15 and further must proceed on the basis that any statements of fact contained in the pleading sought to be struck out are true and can be proved by the party.16 Clarke J made it clear in Salthill Properties Ltd v Royal Bank of Scotland plc17 that “the court must accept the facts as asserted in the plaintiff’s claim, for if the facts so asserted are such that they would, if true, give rise to a cause of action then the proceedings do disclose a potentially valid claim.” As Baker J stated in Wilkinson v Ardbrook Homes Ltd,18 the approach of the court should be “to ask whether the plaintiff could possibly succeed on the case as pleaded and in the light of the facts asserted, and only if it is satisfied that a plaintiff could not possibly establish those facts, or could not possibly succeed on the pleadings, should the proceedings be struck out.”

The relevant sections in the Pensions Act 1990 as amended are:

66. Discriminatory grounds for the purposes of this Part.

(1) For the purposes of this Part, discrimination shall be taken to occur where -

(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds mentioned in subsection (2) (in this Part referred to as the 'discriminatory grounds') which -

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) a person who is associated with another natural person ('the other person') -

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of the other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.

67. Categories of persons to whom this Part applies.

(1) For the purposes of this Part, 'X' and 'Y' represent 2 persons who differ as follows:

(a) in relation to the gender ground, X and Y are of different gender;

(b) in relation to the civil status ground, X and Y have different civil status;

(c) in relation to the family status ground, X has family status and Y does not, or vice versa;

(d) in relation to the sexual orientation ground, X and Y are of different sexual orientations;

(e) in relation to the religion ground, X and Y have different religious beliefs or X has a religious belief and Y does not, or vice versa;

(f) in relation to the age ground, X and Y are of different ages;

(g) in relation to the disability ground, X is a person with a disability and Y is not, or vice versa, or X and Y are persons with different disabilities;

(h) in relation to the ground of race, X and Y differ as to race, colour, nationality or ethnic or national origins or any combination of those factors;

(i) in relation to the Traveller community ground,

The Complainant has brought multiple claims against different parties based on the same facts. The Complainant’s employment was terminated by reason of redundancy and the matter before this tribunal is res judicata as it has been previously adjudicated upon. The Complainant had brought an unfair dismissal 's claim case number UD118 /2010. The tribunal determined that the complainant was selected for redundancy solely because his area of expertise lay in those machines which the respondent company intended to outsource. No other criteria including anything relating to disability or company cars played a factor. The tribunal finds he was not unfairly dismissed. The right to appeal that decision has long past and I have determined based on the written submission the complaint is legally misconceived and I dismiss the complaint.

Summary of Complainant’s Case:

Summary of Respondent’s Case:

Findings and Conclusions:

Decision:

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 that Part.

Dated: 9th January 2024 

Workplace Relations Commission Adjudication Officer:  Brian Dalton

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