ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00030986

Parties:

Complaints:

Date of Adjudication Hearing:  19/11/2024

Workplace Relations Commission Adjudication Officer:  Michael McEntee

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 ; Section 79 of the Employment Equality Acts, 1998 - 2015, and Section 27 of the Organisation of Working Time Act, 1997 following 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 Oath 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.

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings.

Background:

Opening Legal issues 

Two issues arose – Res Judicata and Equality Time Limits.

A:        Rule of Res Judicata

1:1        Respondent Arguments

The Respondent (Ms Maverley of IBEC) stated in an opening submission that the Complaints were Res Judicata by virtue of the same evidence and parties forming the basis of Adjudication ADJ-00023661 of the 2nd December 2019 and follow on Labour Court Appeal DWT 208 of the 30th November 2020.

The Respondent submitted detailed Complainant case pleadings from both of these cases which they maintained were almost identical to the case pleading in the current case. The issue of Penalisation, the core element of this complaint, (CA-00041560-001) had been comprehensively disposed of under the Organisation of Working Time Act,1997 in DWT 208 of November 2020.

The issue of the complaint (CA-00041560-002) under the Employment Equality Act,1998 was that it was a direct attempt to effectively re run the case, using all the same materials and evidence under a different piece of Legislation.

Legal Precedents were cited especially Cunningham v Intel Ireland Ltd [2013] IEHC 207 where the issue of “dual” or “Parallel” claims was considered. Mr Justice Hedigan noted as a general Rule. 

“Thus, all matters and issues arising from the same set of circumstances must be litigated in the one set of proceedings save for special circumstances”.

The Respondent argued strongly that no “special circumstances” Res Judicataexisted and that both sets of proceedings (ADJ 23661 and DWT 208) and the current claim before the Adjudication were “inextricably linked” with the same facts being at the centre of both claims.

Accordingly, the rule of Res Judicata must apply, and the current claim is outside of proper Adjudication jurisdiction.

1:2        Complainant Response

The Complainant Representative, Mr Marosan, disputed the “re- running” of claims arguments and maintained that significant differences, from the cited previous cases, were apparent in the current claim (CA- 00041560-001 and 00041560-002) to warrant a full Adjudication.

B:        Time limits on Equality claim

1:3        Respondent Arguments

The Respondent argued that the only possible date of Discrimination (which was vigorously denied) was the 8th October 2019 and not the date claimed by the Complainant which was the 11th August 2020.

Significant Respondent evidence was presented to support this time limit (8th October 2019) fact.

If the 8th October 2019 date was accepted the WRC referral date of the 15th December 2020 was over twelve months later. The Adjudication officer had no jurisdiction as set out in the Workplace Relations Act,2015 Sections 41 (6) & (8).

1:4        Complainant Response

Mr Marosan contested this argument and referred to new “Comparators” he had cited. Discrimination had been ongoing post he8th October 2019 date and was still clearly evident in August 2020.

2:        Adjudication Officer consideration

The Adjudication Officer allowed the full case to proceed at Hearing and reserved his positon on the Opening Arguments.

The hearing of the full case with Oral testimony from both sides and extensive written submissions was very instructional to the Adjudicator in considering the Res Judicata arguments.

A careful study was made by the Adjudicator of (ADJ 23661 and Labour Court DWT 208).

The only possible conclusion was that the Penalisation Complaint was comprehensively disposed of in DWT 208 and the current Organisation of Working Time complaint (CA- 00041560-001) has to be found Res Judicata. It cannot proceed.

In relation to the Employment Equality Act,1998 complaint (CA- 00041560-002) it relied almost exclusively on the same evidence as the Organisation of Working time complaint (CA- 00041560-001).

The observations of Mr Justice Hedigan in Cunningham v Intel Ireland Ltd [2013] IEHC 207 regarding the need for “Special circumstances” were reflected on at length.

Regrettably for the Complainant the Adjudication could not see “Special circumstances” of the weight or gravity required to allow the Equality Act complaint to proceed independently. It was being run on virtually the same basis as the Organisation of Working Time complaint.

On this basis it had to be deemed not Well founded” and be ruled out. It fails.

3:        Adjudication conclusion and decision.

Having carefully considered all the evidence, both Written and Oral, presented throughout a full and lengthy Hearing, the Adjudication conclusion has to be that the rule of Res Judicata has to apply.

Both complaints are deemed Not Well Founded and are outside of Adjudication jurisdiction.

They fail.

4:        Decision:

Section 41 of the Workplace Relations Act 2015; Section 79 of the Employment Equality Acts, 1998 - 2015, and Section 27 of the Organisation of Working Time Act, 1997 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions of the cited Acts.

4:1        Organisation of Working time complaint: CA- 00041560-001

The rule of Res Judicata applies from previous cases (ADJ 23661 and Labour Court DWT 208) involving the same parties and evidential circumstances.

The complaint is accordingly outside of Adjudication jurisdiction.

It fails.

4:2        Employment Equality Act complaint: CA- 00041560-002

The rule of Res Judicata applies from previous cases (ADJ 23661 and Labour Court DWT 208) involving the same parties and evidential circumstances. No “special circumstances” were evident to justify a separate Equality Act complaint.

The complaint is accordingly outside of Adjudication jurisdiction.

It fails.

Dated:   06/02/2025

Workplace Relations Commission Adjudication Officer:  Michael McEntee

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