ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00025414

Parties:

	Complainant	Respondent
Parties	Rudolf Csikos	Keelings Logistics Solutions

Complainant

Respondent

Representatives

Self-Represented

Emily Maverley of IBEC and Company Managers

Complaints:

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-00032192-001	14/11/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00033208-001	17/12/2019

Date of Adjudication Hearing: 20th July 2023

Workplace Relations Commission Adjudication Officer: Michael McEntee

Procedure:

In accordance with Section 41 of the Workplace Relations Act and Section 27 of the Organisation of Working Time Act, 1997following the referral of the complaint 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 perils of committing Perjury was explained to all parties.

No issue regarding confidentiality arose.

Background:

The Complaints referred to concern issues relating to Night Work and Sunday Premiums at the Respondent Employer, a large (500+ employees) Food Distribution Operation.

The Complaints were first lodged in November and December 2019.

Consideration of the Complaints was postponed as major local negotiations were underway.

Since that time a very extensive negotiation process has taken place at the Employment. This has involved Senior Trade Union and IBEC Officials/Company Managers plus respective expert advisors on both sides.

By late 2023 a new Comprehensive Agreement between SIPTU and the Respondents is in place covering all issues of concern in the complaints.

The comprehensive Agreement was the subject of a Ballot of all SIPTU members and accepted in late 2023. Membership of SIPTU is a requirement for the employees covered in these complaints.

The Terms and Conditions of the Complainant’s Contract of Employment provide that it is governed by Company /Union Agreements. The Revised Terms are applicable to the Complainant.

The Complainant is employed since the 29th September 2008 as a Warehouse Operative.

The weekly rate of pay was stated ,in 2019 , to be a basic of €824 for a 39 Hour week.

1: Opening issues / Section 42 of the Workplace Relations Act,2015.

1:1 introduction

The issues at the centre of these complaints were the subject of very extensive local negotiations, lasting almost a full year, between IBEC and SIPTU. A New Agreement was accepted by a Staff Ballot.

The Complainant has both by written correspondence and in oral testimony on the 20th July 2023, made it clear that he does not accept the legitimacy of the Negotiation process. He refuses to engage with SIPTU.

It is his wish that all his complaints in regard to Sunday Working and Nighttime Arrangement be the subject of a comprehensive WRC Adjudication process.

1:2 Discussion

The Respondents, both IBEC and the Employer, are of the view that to carry out an Investigation of this nature would be completely repetitive of the detailed negotiations already undertaken by the Parties. The Adjudication Officer investigation would ,in reality , serve no useful purpose. Colloquially, it is understood that SIPTU are of a similar view. Substantial correspondence to this effect was received by the Adjudication Officer, from IBEC, on the 1st February 2024 and the 20th March 2024.

The overall view of the Parties is that the issues are now effectively “Res Judicata”, albeit not from a Court or Tribunal but from a major yearlong negotiation exercise between two very eminent Industrial bodies, IBEC & SIPTU and their professional advisors.

The Complainant would hold the view, very strongly, that his individual rights as a Citizen of both Ireland and the European Union, cannot be bypassed in this fashion. He is entitled to have his case fully examined at Adjudication and if necessary, on appeal, by the Labour Court

The Adjudication Officer, having heard the arguments set out above, proceeded to consider Section 42 of the Workplace Relations Act,2015.

Dismissal of claim by adjudication officer

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

(2) (a) A person whose complaint or dispute is dismissed in accordance with this section may, not later than 42 days from its dismissal, appeal the dismissal to the Labour Court.

(b) A person shall, when bringing an appeal under this subsection, give notice to the Commission in writing of the bringing of the appeal.

(c) A notice referred to in paragraph (b) shall specify the grounds upon which the appeal is brought.

(3) Upon the hearing of an appeal under this section, the Labour Court may—

(a) affirm the decision of the adjudication officer dismissing the complaint or dispute concerned, or

(b) annul that decision and refer the complaint or dispute to the Director General.

(Underlining by AO)

The Terms “frivolous or vexatious” are legal technical terms and as explained by 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.”

(Originally quoted by Adjudicator Mr B Dalton in Adj -37275)

The Court of Appeal, Irvin J, (referred to above) made it clear that justification for the “continued existence of a process” has to be considered “having regard to the relevant circumstances”

In this case it has to be recognised that IBEC/Employer Managers and SIPTU invested considerable intellectual and physical resources in the negotiation of the new Agreement referred to earlier.

It has to follow that In this case ADJ-00025414, any realistic outcome from what would inevitably be a very lengthy Adjudication examination of considerable materials presented in evidence by both sides, could only be at best, a very marginal, if at all, alteration in the current situation set out in the new Comprehensive Agreement.

It is not realistic to expect that there are major flaws in the Legal basis of the Comprehensive Agreement likely to be uncovered in an Adjudication.

Accordingly, the Complainat has to be regarded as legally “frivolous” following the definitions set out above in the extract from Delaney and McGrath on Civil Procedure 4th Edition

This is not to in any way cast negative aspirations on the integrity of the complaint or of the Complainant.

1:3 Adjudication Conclusion

In view of the discussion above and the legal precedents cited the Adjudication Officer is exercising his powers under Section 42 (1) of the Workplace Relations Act,2025 and declaring the complaints Legally “Frivolous”.

It is accordingly without Proper Foundation and cannot proceed.

2: Findings and Conclusions:

The Complaints are deemed to be “Frivolous” under Section 42 of the Workplace Relations Act,2015.

They are not Properly founded and cannot proceed.

3: Decision:

Section 41 of the Workplace Relations Act 2015 and Section 27 of the Organisation of Working Time Act, 1997requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions of the cited Actss.

3:1 CA-00032192-001

Under the provisions of Section 42(1) of the Workplace Relations Act,2025 this complaint is deemed legally frivolous and is deemed Not Properly Founded.

3:2 CA-00033208-001

Under the provisions of Section 42(1) of the Workplace Relations Act,2025 this complaint is deemed legally frivolous and is deemed Not Properly Founded.

Dated: 19th September 2024.

Workplace Relations Commission Adjudication Officer: Michael McEntee

Key Words:

ER Act,2015 - Section 42 Dismissals of Complaints. Frivolous Complaints