ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00016934

Parties:

	Complainant	Respondent
Parties	Sabina Murphy	Coras Iompair ÉIreann, T/A CIE Tours.

Representatives

Self -represented.

Ms. Cathy Maguire instructed by Mr. Hugh Hannon, CIE Solicitors

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014	CA-00021915-001	18/09/2018
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00021925-001	18/09/2018
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00021926-001	18/09/2018
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00021927-001	18/09/2018
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00021928-001	18/09/2018
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012	CA-00021929-001	18/09/2018
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00021930-001	18/09/2018
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012	CA-00021931-001	18/09/2018
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012	CA-00021932-001	18/09/2018
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00021933-001	18/09/2018
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00021934-001	18/09/2018
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012	CA-00021935-001	18/09/2018
Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014	CA-00022214-001	27/09/2018

Date of Adjudication Hearing: 19/09/2024

Workplace Relations Commission Adjudication Officer: Máire Mulcahy

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 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.

The changes arising from the judgment of the Supreme Court in Zalewski v. Adjudication Officer and WRC, Ireland and the Attorney General [2021] IESC 24 on 6 April 2021 were notified to the parties who proceeded in the knowledge that hearings are to be conducted in public, decisions issuing from the WRC will disclose the parties’ identities and sworn evidence may be required.

I gave the parties an opportunity to be heard and to present evidence relevant to the complaint.

The respondent was represented by Ms. Cathy Maguire, B.L., instructed by Mr Hugh Hannon, CIE solicitors. Respondent management personnel also attended.

The complainant did not attend

Background:

The complainant presented thirteen complaints of breaches of the aforementioned statutes to the WRC on the 18/9/2018.

The complainant submitted a further complaint of penalization under the Protected Disclosures Act, 2014, on 27/9/2018.

The complainant commenced employment as a tour guide with the respondent on 26/04/2013.

The complainant was dismissed in February 2019.

The complainant was paid a daily rate of €135.

Summary of Complainant’s Case:

Though notified of the hearing on the 24/6/2024, the complainant chose not to attend the hearing.

The complainant had presented evidence of her complaints at the hearing on the 27/5/2024.

The complainant submitted an email on 13/9/24 complaining about the receipt on the 13/9/24 of the stenographer’s notes from the hearing of the 5/2024, six days in advance of the this scheduled hearing and a lack of fairness in the procedures. She also sought a change of adjudicator.

The complainant submitted a further email on the 18/9/2024 stating that she was unwilling to attend the hearing due to what she termed the bias of the adjudicator and seeking a replacement adjudicator. A letter and email issued to the complainant advising that the hearing would proceed.

Summary of Respondent’s Case:

The respondent attended the hearing.

The respondent’s representative objected to the complainant’s application for an adjournment made on 13/9/24. The complainant was on notice of the hearing since late June 24 and her arguments about the late receipt of the stenographer’s notes were baseless. The respondent was present to hear the complainant’s further evidence, to cross examine and to present their own defence of these complaints with company representatives and witnesses present.

The respondent’s application is that as the complainant has prevented the case from continuing and has presented no evidence on the many complaints other than as her status as an employee, and evidence on the protected disclosure complaint, the case cannot fairly continue as it would amount to a breach of fair procedures.

The respondent stated that the adjudicator should proceed to determine that the complainant’s complaints are not well founded.

Neither of her letters prevent the adjudicator from making a decision.

Findings and Conclusions:

I have been assigned to issue decisions on the complaints tabled for the hearing on the 19/9/2024 and numbered

CA-00021915-001; CA-00021925-001; CA-00021926-001; CA-00021927-001; CA-00021928-001; CA-00021929-001; CA-00021930-001; CA-00021931-001; CA-00021932-001; CA-00021933-001; CA-00021934-001; CA-00021935-001; CA-00022214-001.

At the previous hearing on 27/5/2024, the complainant did present legal arguments as to the contested issue of her employment status, employee, the level of control and supervision exercised by the respondent on her work, her integration with the company and evidence concerning the protected disclosures made by the complainant under the Protected Disclosures Act, 2014 and evidence concerning instances of alleged penalisation.

On the 19/9/2024, the complainant chose not to attend the hearing, opting, instead, to present an email request for a postponement, asking that the undersigned adjudicator be replaced.

Given that this complaint was lodged in 2018 and given that the complainant, though notified on 24/6/2024 of the date and time, did not attend the hearing, it is necessary to consider the passage of these 13 complaints to an adjudication hearing.

In the period 2019 until 8/5/2023, the adjudicator made frequent requests for updates on the judicial proceedings in progress since April 2019.

The WRC decided to proceed in advance of any decision from the Social Welfare Appeals process.

Neither process initiated by the complainant to find that she was an employee resulted in a decision in her favour.

Hearings scheduled from 18/9/2018 – 19/9/2024.

Date OF HEARING	Date parties notified of hearing	Postponements and adjournments
1. 21/11/2018	10/10/2018	On 19/11/2018 the complainant requested a postponement due to medical reasons	Granted.
2. 8/1/2019	3/12/2018	Postponed by WRC
3. 7/2/2019	11/1/2019	On 4/2/2019 the complainant requested postponement due to medical reasons	Granted.
4. 24/6/2019	31/5/2019.	On 18/6/2019, the respondent applied for a postponement because of judicial proceedings lodged by the complainant in High Court, on 24/4/2019, and listed for July 2019, proceeding which they stated overlapped with the issue of whether the complainant was an employee – a central issue in contest in the instant complaints Complainant emailed the WRC on 18/9/2019 asking for a deferral of a hearing into 21 of her 24 complaints, the exceptions being the complaint under the Protected Disclosures Act, 2014 and a complaint under the employment Equality Act 1998, contained in another separate set of complaints until her High Court proceedings, already lodged, delivered a decision on her status as an employee	Postponement refused. Hearing opened and adjourned on the respondent’s application as it became clear that issues pending in High Court concerning the employee status of the complainant mirrored those before this hearing.
5. 21/10/2019	18/9/2019.	The respondent requested an adjournment at the hearing on 21/10/2019 on the basis of an anticipated hearing of the High Court proceedings concerning the complainant’s employment status within the following 6 months.	The hearing opened. The adjournment was granted.
6. 8/5/2023	14/3/2023.	Respondent’s postponement request of 18/4/2023 declined.	Hearing opened. Preliminary points addressed the ability of the complainant to expand a complaint and the jurisdiction of the complainant to present a complaint under the Protected Disclosures Act, 2014. Adjourned until September 2023 to enable the parties to provide further written submissions as requested by the adjudicator.
7. 3/7/2023	11/5/2023	19/5/2023, the respondent requested a postponement due to the unavailability of a witness.	Approved.
8. 5/9/2023	6/7/2023	On 1/9/23, the complainant sought a postponement. On 5/9/2023 the complainant telephoned the case officer on the morning of the hearing, 5/9/2023, advising that she had had an accident and that she would be late / delayed in attending the hearing. WRC telephoned 3 times offering the complainant a hybrid hearing. A short while later the complainant emailed to state that she was in an accident and emergency department being assessed and would be unable to attend either a hybrid or face to face hearing. A medical cert was received the following day stating that the complainant was unfit to attend work/school.	This application was refused on 4/9/2023. A postponement was granted.
9. 27/5/2024 10. 19/9/2024	24/6/2024	On 18/9/2024 the complainant emailed a request for a postponement and the replacement of the adjudicator due to what the complainant considered to be the adjudicator’s bias.	The hearing recommenced. The complainant addressed the legal issues concerning jurisdiction to hear the complaints. The complainant gave evidence. The hearing was adjourned to allow for further evidence from the complainant on the complaints, plus cross examination, and to hear the respondent’s evidence. The complainant advised that hearing would proceed the following day. The hearing opened. The respondent presented their case.

Hearing on 19/9/2024.

The complainant did not attend. The case officer telephoned the complainant, left a message, but no reply was received. After approximately thirty minutes, the hearing opened. The respondent attended the hearing along with its representatives and a number of witnesses.

This hearing was convened to hear the 13 complaints cited in this decision, plus 11 separate complaints submitted under 4 different statutes, and found in ADJ 18223, ADJ 19428, and ADJ22488.

The complainant, on notice of the hearing since 24/6/24, emailed the WRC on 13/9/24 to state that she could not proceed with the hearing as the stenographer’s notes of the hearing of 27/5/2024 were only provided to her on 13/9/2024, 6 days before the hearing, that she believed the procedures to be unfair, and that she was seeking a replacement adjudicator. The complainant’s objections concerning the stenographer’s notes were addressed, and she was advised that the hearing would proceed on the 19/9/2024. The complainant sent an email on the day before the hearing, 18/9/24, seeking a replacement adjudicator, maintaining that the adjudicator was biased.

It had taken 5.5 years from the date of lodgement of the complaint to the May 2024 hearing to hear the complainant’s evidence on 27/ 5/2024 – a hearing that was adjourned. This delay was attributable to several factors. A history of three postponements, some at very short notice, had caused inconvenience and cost to the parties themselves.

I am guided by the decision of the Labour Court in the case of Somy Thomas v Beaumont Hospital, EDA 242. The Labour Court, presented with an application for a postponement due to ill health and without any supporting medical certification, considered the protracted efforts (seven attempts), to bring the hearing of this appeal to completion. That appeal was lodged on 14 October 2019 and was scheduled to be heard on 04 January 2024. Prior to this date, the parties had attended a case management conference and, in addition, one hearing had been adjourned.

A Labour Court hearing proceeded on 04 January 2024. The complainant did not attend, stating she was unwell. No medical certification was before the court at the time of the hearing.

In confirming its decision to refuse the complainant’s postponement application on the 11th of December 2023, the Court, of necessity, found that the appeal failed and affirmed the decision of the Adjudication Officer. In coming to this conclusion, the Court in their determination took particular account of the decision of Cregan J. in An Bord Banistiochta Gaelscoil Moshiolog [2023] IEHC 484, and in particular to para. 440, in regard to the issue of delay in civil proceedings and obligations under Article 6 of the European Convention on Human Rights. Cregan J. stated at para. 440:

“The delay by the Labour Court in hearing this matter and giving judgment is unacceptable to say the least and raises serious questions as to whether the Labour Court has breached Mr. Ó Suird’s rights under Article 6 of the European Convention on Human Rights regarding the right to a fair and expeditious trial.”

The Labour Court, again, in their deliberations factored in the judgement of Irvine J. in Leonard Gorman v The Minister for Justice, Equality and Law Reform, Ireland and the Attorney General [2015] IECA 41 which at para. 34 stated:

“Similar sentiments were expressed by Hardiman J. in Gilroy v. Flynn [2005] 1 I.L.R.M. 290 where at pp.293-294 he stated as follows: -

“[T]he courts have become ever more conscious of the unfairness and increased possibility of injustice which attached to allowing an action which depends on witness testimony to proceed a considerable time after the cause of action accrued ….Following such cases as McMullan v. Ireland [ECHR422 97/98 29th July 2004] and the European Convention on Human Rights Act 2003, the courts, quite independently of the action or inaction of the parties, have an obligation to ensure that rights and liabilities, civil or criminal, are determined within a reasonable time.”

The Labour Court concluded as follows:

“The Court is satisfied that, in all the circumstances, and having particular regard for the elongated history of the proceedings in this appeal, further delay in the hearing of the within appeal would be contrary to parties’ right to a “fair and expeditious trial” and to have their rights and obligations “determined within a reasonable timeframe”.

The respondent in the instant case, in attendance and ready to defend the complaints made against them requested that the matter not be adjourned any further and that the adjudicator determine that the complaints are not well founded on the basis of the complainant’s failure to attend.

I do not find the complainant’s request via an email to the case officer on the eve of the hearing, on notice of same for almost three months, to be a satisfactory explanation for failure to attend. The complainant declined to attend and make a case in person for a recusal of the adjudicator. The complainant did not submit a postponement application compliant with the WRC guidelines but submitted a mere email the day in advance of the hearing to state that she would not attend. The complainant gave no details as to why she considered the adjudicator to be biased. No submissions as to alleged bias were received. The complainant did at an earlier stage state that the adjudicator had interrupted her.

The complainant had throughout the process declined to comply with the adjudicator’s request for written submissions to be made on any of the already identified legal issues in advance of the hearings, arguing that she was entitled to make oral submissions on the day of the hearing. Hence, the hearing scheduled for 19/9/24 offered the complainant an opportunity to make oral submissions on why the hearing should be postponed.

The statutory breaches alleged occurred between 2018 and 2019.The complainant ceased her employment with the Respondent in February 2019.

Having considered the authorities cited, the protracted progression of these complaints to a hearing, and the absence of a satisfactory explanation for failure to attend, I must find these complaints to be not well founded.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

CA-00021915-001. Complaint under Schedule 2 of the Protected Disclosures Act, 2014