EDA2537

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00043707 (CA-00053850-001)

BACKGROUND:

The Worker appealed the decision of the WRC Adjudication Officer under Section 83 (1), Employment Equality Acts, 1998 to 2015 on 22 September 2023.

A Labour Court hearing took place on 25 March 2025.

The following is the Determination of the Court:

DETERMINATION:

This is an appeal by Ms Siobhan Mc Nally (the Complainant) from decision ADJ-00043707 CA-00053850-001 of an Adjudication Officer decision, under the Employment Equality Act, 1998, (the Act) in respect of a complaint against the Rotunda Hospital (the Respondent). 

The complaint was received by the Workplace Relations Commission on 24 November 2022.

The Adjudication Officer dismissed the complaint on the basis that it was frivolous.

The Court heard the appeal in Dublin on 25 March 2025, along with six other appeals.

Summary Position of the Complainant

The Complainant requests that the decision of the Adjudication Officer that the complaint is frivolous be overturned.

The Adjudication Officer erred in law in basing his decision on preceding legal errors and omissions.

The Adjudication Officer erroneously based his decision on a prior Adjudication Officer Decision dated May 2023. An error of judgement occurred in that decision as the hearing did not comply with the overall objectives of EU Equality Directives to remove, prohibit, and prevent discrimination on the protected grounds.

The Adjudication Officer decision should be overturned on the grounds of misrepresentation and omissions on the part of the Respondent. The Adjudication Officer decided that the Complainant’s employment ceased with the Respondent in May 2019. The Complainant cannot be compulsorily retired. The Complainant’s current employment status is that she continues to be on suspension with pay since January 2019.

The Adjudication Officer made an error of judgement because the preliminary hearing did not consider the substantial facts and did not establish the matters which the Adjudication Officer alleged to be established.

The Respondent’s request to dismiss the within complaint suggests a valid Equal Pay claim. The Adjudication Officer did not consider the fact that the Respondent did not deny these claims.

The Adjudication Officer should have upheld the Complainant’s right to a substantive hearing. The Complainant has a right to a fair hearing in a reasonable time. The Respondent must be tasked with attending a substantive hearing to justify their actions.

The Labour Court has jurisdiction to hear the complaint as EU directives provide protection to employed persons and persons whose employment has ceased. Conformance with EU directive requires that a hearing must take place on the substantial facts of direct discrimination, indirect discrimination, harassment, pay and occupational Social Security on the gender and disability grounds.

Summary Position of the Respondent

The Complainant commenced employment with the Respondent hospital in March 2003. Her employment ended on 20 May 2019 when she was compulsory retired on the grounds of ill health and is currently in receipt of an ill health early retirement pension.

The Complainant has filed approximately thirty-seven separate complaints spanning the period from 2019 to August 2024 at the Workplace Relations Commission (WRC) and has appealed the outcome of approximately 30 of those complaints to the Labour Court. The majority of claims include repetitive allegations of discrimination on the grounds of gender and disability under the Employment Equality Act.

The WRC and the Labour Court have found repeatedly that complaints filed after the six-month cognisable period provided for filing complaints (i.e. up to 19 November 2019) under section 77 of the Employment Equality Act were out of time and/or are frivolous and vexatious.

Complaints investigated by the WRC were found to be statute barred, in circumstances where the Complainant's employment with the Respondent ceased in May 2019. All such decisions were appealed to the Labour Court and confirmed by the Labour Court to be outside the statutory time provided by the relevant legislation for filing claims.

The Adjudication Officer dismissed the within complaint as “frivolous in the sense that they lack any legal merit on the basis of the acts under which they have been referred.” In doing he pointed to previous determinations by the WRC and the Labour Court that the Complainant’s employment relationship with the Respondent terminated on 20 May 2019. Additionally, the Adjudication Officer noted that the claims before him were submitted nearly four years after her employment relationship ended with the Respondent.

In the case of Leon O'Connor v SSE Airtricity Ltd (ROI) SSE Airtricity Electricity ADJ-00044066, the Adjudication Officer in that determination cited three cases which referenced frivolous and/or vexatious cases, and in particular at the legal definition of “frivolous”.

In the first case cited, Novak v Data Protection Commissioners [2012] IEHC 449, Bermingham J held:

“…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.”

In the J. O’N v S McD & Ors [2013] IEHC, Bermingham J described the words “frivolous” and “vexatious” as: -

“…the words “frivolous” and “vexatious” are terms of art, they are legal terms and they are not used in a pejorative sense. They merely mean that the plaintiff has no reasonable chance of succeeding and that because there is no reasonable chance of success it is frivolous to bring the case. By the same token it imposes a hardship on the defendant if he has to expend time effort and money in defending an action which cannot succeed and that is regarded as vexatious...”.

The third case cited was Good Concrete V CRH plc [2012] IEHC 116, where at para 36, it was stated: -

“A plaintiff's right of access to the Courts is not absolute and the Court has jurisdiction to prevent the right being abused by, for example, dismissing a case for inordinate delay or as frivolous, vexatious or  bound to fail in order to prevent the injustice to a defendant.”

The Respondent submits that all the above principles apply to the within case.

In light of numerous findings that previous claims filed by the Complainant after 20 November 2019 were manifestly out of time and therefore statute barred, the within claim is hopeless in the sense that it is incapable of achieving the desired outcome. The Complainant has no reasonable chance of succeeding in those circumstances, and any complaints filed after 20 November 2019 are bound to fail. Additionally, the burden upon the Respondent hospital to defend the claim has been substantial to date.

The Respondent submits that on the basis of previous s decisions of this Court, that the Adjudication Officer's finding of “frivolous” was correct and respectfully requests the Court to conclude the same.

Relevant Law

Dismissal of claim.

77A.—(1) The Director General of the Workplace Relations Commission may dismiss a claim at any stage if of opinion that it has been made in bad faith or is frivolous, vexatious or misconceived or relates to a trivial matter.

(2) (a) Not later than 42 days after the Director General of the Workplace Relations Commission dismisses a claim under this section, the complainant may appeal against the decision to the Labour Court on notice to the Director General of the Workplace Relations Commission specifying the grounds of the appeal.

(b) On the appeal the Labour Court may affirm or quash the decision.

Deliberation

The Complainant provided extensive written submissions to the Court addressing (i) the Adjudication Officer’s finding that her complaint was frivolous, and (ii) her substantive complaint lodged to the WRC.

At the outset of the hearing, the Court noted that its jurisdiction was confined to considering if the Adjudication Officer was correct to find that the within appeal claim was frivolous, and should it quash that finding, then the entire matter would be remitted back to the WRC for further investigation. Both parties confirmed that were provided with a full opportunity to raise all relevant matters with the Court at the hearing.

The Complainant contends she is on suspension from her employment with the Respondent since January 2019.

The Respondent submits that it is well settled in other Adjudication Officer determinations, and by the Labour Court on appeal, that the Complainant’s employment terminated on 20 May 2019. As a result, it submits that the relevant period for consideration of a complaint, having regard to the six-month time limits set down in the Act, is the period from 20 May 2019 (the date the Complainant’s employment ceased) to the 19 November 2019.

The Adjudication Officer in his deliberations in the within complaint referred to the other determinations where it was established that “the Complainant ceased to be an employee of the Respondent in May 2019”. He held that complaints regarding the conduct of the Respondent after that date fall outside the jurisdiction of the Act as there is no employment relationship to ground a complaint.

In deciding the claim was “frivolous” the Adjudication Officer found that the Complainant had no realistic prospect of succeeding in her claim if referred to a full hearing as the claim was submitted outside the prescribed time limits and would only serve to waste resources of the WRC and the Respondent.

The Complainant takes issue with that finding. Furthermore, the Complainant takes issue with all previous determinations by Adjudication Officers, and the Labour Court on appeal, that found her complaints were out of time, having regard to the time limits set down in legislation in circumstances where her employment with the Respondent ceased in May 2019.

In response to questions from the Court, the Complainant confirmed that she did not appeal any of the Labour Court determinations with which she takes issue, including the determination referencing the termination of her employment on 20 May 2019.

The Complainant advised the Court that, in her view, those determinations are “invalid, null and void” and did not need to be appealed. She further stated her intention to continue to lodge further appeals against the Respondent.

The terms “frivolous and vexatious” were considered by the Supreme Court in Fay -v-Tegral Pipes Limited & ors [2005] IESC 34 where McCracken J. noted: -

“While the words “frivolous and vexatious” are frequently used in relation to applications such as this, the real purpose of the jurisdiction is to ensure that there will not be an abuse of the process of the Courts. Such abuse cannot be permitted for two reasons. Firstly, the Courts are entitled to ensure that the privilege of access to the Courts, which is of considerable constitutional importance in relation to genuine disputes between parties, will only be used for the resolution of genuine disputes, and not as a forum for lost causes which, no matter how strongly the party concerned may feel about them, nevertheless have no basis for a complaint in law. The second, and equally important, purpose of the jurisdiction is to ensure that litigants will not be subjected to the time consuming, expensive and worrying process of being asked to defend a claim which cannot succeed” (para 10).

Adjudication Officers of the WRC, and the Labour Court on appeal, are creatures of statute and can only consider complaints submitted within the statutory time provided by relevant legislation.

Both the WRC and the Labour Court on appeal have determined that other complaints filed by the Complainant against the Respondent after 19 November 2019 were statute barred, in circumstances where her employment ceased in May 2019. While the Complainant may take issue with those findings, she did not appeal them and, as a result, those determinations stand. In those circumstances, it was not unreasonable for the Adjudication Officer to consider those findings when assessing whether the within complaint was frivolous or not.

While the Complainant may have genuine and strongly held views about the merits of her complaint, the Court finds that the Adjudication Officer correctly concluded that her complaint was “frivolous”. He did so on the basis that there was no realistic chance of her complaint succeeding at a full hearing, due to findings that her other claims were found to be out of time and statute barred.

Allowing the within complaint to proceed would mean that the Respondent would be subject to further litigation in defense of a claim which cannot succeed.

Having regard to the above, the Court affirms the decision of the Adjudication Officer.

Determination

The Court finds that the claim is frivolous.

The Decision of the Adjudication Officer is affirmed.

The Court so decides.

	Signed on behalf of the Labour Court
	Katie Connolly
AL	______________________
3rd April 2025	Deputy Chairman

NOTE

Enquiries concerning this Determination should be addressed to Amy Leonard, Court Secretary.