ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00050556
Parties:
| Complainant | Respondent |
Parties | John Mac Cormack | MacRa Na Feirme |
Representatives | No Show | Ledwith Solicitors/Kiwana Ennis BL |
Complaint(s):
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014 | CA-00056484-001 | 04/05/2023 |
Date of Adjudication Hearing: 25/04/2024
Workplace Relations Commission Adjudication Officer: Brian Dalton
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 following 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:
The Complainant lodged his complaint on the 4th of May 2023. He was notified of the hearing on the 19th of March 2023. He failed to attend at the hearing. He consented to communication by email and received the notification. On the 24th of April 2024 the Complainant sent the following email to the Commission: Hi I have just started a new post, it would not look good taking a day out to attend a WRC hearing, taking responsibility into consideration I wish to adjourn my hearing tomorrow. Awaiting your reply. Warmest regards
Section 42 of the Act states: 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.
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Summary of Complainant’s Case:
The Complainant failed to attend at the hearing |
Summary of Respondent’s Case:
The Respondent was in attendance and ready to rebut the complaint. |
Findings and Conclusions:
The Complaint failed to attend and to make out his case. It is not reasonable to apply for an adjournment the day before the hearing when the Complainant was on notice several weeks in advance. That action in turn has denied another Complainant the right to his or her case being heard. There are no exceptional reasons provided at this late date that would persuade this tribunal that an adjournment should be given. The Respondent has prepared and attended at the hearing. The Complainant has failed to attend at the hearing to make out his case and therefore I must form the opinion that the complaint is frivolous or vexatious.
Vexatious and frivolous are legal technical terms and as explained in 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.” In the absence of the Complainant giving oral evidence and failing to attend at the hearing, I have formed the opinion that the complaint is frivolous and vexatious and dismiss the complaint. I determine that the complaint is not well founded. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
The Complainant has failed to attend at the hearing to make out his case and therefore I must form the opinion that the complaint is frivolous and vexatious and therefore dismiss the complaint.
I determine that the complaint is not well founded.
Section 42 of the Act states: 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.
Vexatious and frivolous are legal technical terms and as explained in 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.” In the absence of the Complainant giving oral evidence and failing to attend at the hearing, I am compelled to terminate the proceedings and dismiss the Complaint as provided for under section 42 of the Act. I determine that the complaint is not well founded. |
Dated: 3rd May 2024
Workplace Relations Commission Adjudication Officer: Brian Dalton
Key Words:
No show |