Complainant

Respondent

Parties

Thomas  Delecolle

Apple Distribution International Limited

Representatives

  Self-Represented

David Pearson JW O’Donovan LLP

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00063921-001

05/06/2024

The Complainant is a product support team manager with the Respondent and claims he has been penalised under section 13 of the Protection of Employees (Fixed-Term Work) Act 2003 (” the Act”). The Complainant alleges that following a failed Workplace Relations Commission (WRC) mediation process he was subjected to an unfair performance plan that was unprecedented for him and designed to make him fail, and thus make his work conditions as difficult and as stressful as possible.

The Respondent argues that the Complainant’s claim of being penalised for invoking rights under the Protection of Employees (Fixed-Term Work) Act 2003 is unfounded and frivolous and should be dismissed. The Respondent contends that the Adjudication Officer lacks jurisdiction to hear the complaint, as the Complainant has a permanent contract of employment (exhibited) and the Act applies only to fixed-term employees, not permanent ones. On the substantive issue, and without prejudice, the Respondent requests that the complaint be dismissed due to its lack of legal or factual merit, citing Section 42(1) of the Workplace Relations Act 2015, which allows for the dismissal of frivolous or vexatious complaints.

The Respondent notes that the Complainant claims he was “penalised by (his) employer for invoking entitlements under the Protection of Employees (Fixed-Term Work) Act 2003 or for refusing to cooperate with a breach of that Act or to avoid giving a contract of indefinite duration”. The Respondent submits it is a stranger to the penalisation claimed and submits that this complaint is frivolous.

The Respondent submits the Adjudication Officer has no jurisdiction to hear this complaint as the Act does not apply to permanent employees. The Respondent request the Adjudicator to decline jurisdiction. Without prejudice to the above request, the Respondent respectfully requests that the WRC dismiss the Complainant’s complaint, given its lack of legal or factual merit, as Section 42(1) of the Workplace Relations Act 2015 provides that:

“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.”

The Respondent relies upon the High Court case of Patrick Kelly v The Information Commissioner [2014] IEHC 479, in which the terms “frivolous or vexatious” were considered:

“As a matter of Irish law, the term “frivolous or vexatious” does not, as noted by Birmingham J. in Nowak, necessarily carry any pejorative connotations but is more concerned with the situation where the litigation (or, in this instance, application) can be described as futile, misconceived or bound to fail.

Where a person engages in a pattern of litigation (or applications as in the present instance) which not only come within those descriptions but can be said to be actuated by ill-will or bad faith, such conduct may properly be described as vexatious.”

The Respondent cites  Behan v McGinley [2011] 1 I.R. 47, and reiterated by Laffoy J. in Loughrey v. Dolan [2012] IEHC 578, the High Court relied on a decision of the Ontario High Court in Re Lang Michener and Fabian (1987) 37 D.L.R. (4th) 685, which listed a number of factors indicating that proceedings may potentially be vexatious in nature, thus amenable to being struck out. These factors, which are not meant to be exhaustive, include:

“(a) the bringing up on one or more actions to determine an issue which has already

been determined by a court of competent jurisdiction;

(b) where it is obvious that an action cannot succeed, or if the action would lead to no possible good, or if no reasonable person can reasonably expect to obtain relief;

(c) where the action is brought for an improper purpose, including the harassment and oppression of other parties by multifarious proceedings brought for purposes other than the assertion of legitimate rights;

(d) where issues tend to be rolled forward into subsequent actions and repeated and supplemented, often with actions brought against the lawyers who have acted for or against the litigant in earlier proceedings;

(e) where the person instituting the proceedings has failed to pay the costs of unsuccessful proceedings;

(f) where the respondent persistently takes unsuccessful appeals from judicial decisions.”

The Respondent submits that, based on the aforementioned factors, the present complaint is at best, misconceived and should be dismissed.

The Complainant accepted that he was a permanent worker and that the relevant mediation process, and subsequent adjudication hearing, had no connected complaint nor dimension within the scope of the Act. 

APPLICABLE LAW:

Section 1 of the Act defines a “fixed-term employee” meaning “… a person having a contract of employment entered into directly with an employer where the end of the contract of employment concerned is determined by an objective condition such as arriving at a specific date, completing a specific task or the occurrence of a specific event but does not include—

(a) employees in initial vocational training relationships or apprenticeship schemes, or

(b) employees with a contract of employment which has been concluded within the framework of a specific public or publicly-supported training, integration or vocational retraining programme;

The Complainant accepted that he was never a fixed term employee at the relevant time, relating to the definition of penalisation the complaint under the Act, which states at section 13 as follows:

(1) An employer shall not penalise an employee—

(a) for invoking any right of the employee to be treated, in respect of the employee's conditions of employment, in the manner provided for by this Part,

(b) for having in good faith opposed by lawful means an act which is unlawful under this Act,

(c) for giving evidence in any proceeding under this Act or for giving notice of his or her intention to do so or to do any other thing referred to in paragraph (a) or (b), or

(d) by dismissing the employee from his or her employment if the dismissal is wholly or partly for or connected with the purpose of the avoidance of a fixed-term contract being deemed to be a contract of indefinite duration under section 9(3).

(2) For the purposes of this section, an employee is penalised if he or she—

(a) is dismissed or suffers any unfavourable change in his or her conditions of employment or any unfair treatment (including selection for redundancy), or

(b) is the subject of any other action prejudicial to his or her employment.

Section 42(1) of the Workplace Relations Act 2015 provides that:

“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.”

The High Court in the case opened by the Respondent, Patrick Kelly v The Information Commissioner [2014] IEHC 479, considered the terms “frivolous or vexatious”:

“As a matter of Irish law, the term “frivolous or vexatious” does not, as noted by Birmingham J. in Nowak, necessarily carry any pejorative connotations but is more concerned with the situation where the litigation (or, in this instance, application) can be described as futile, misconceived or bound to fail.

The Complainant acknowledged his status as a permanent worker and accepted that he was not on a fixed-term contract at the material time. He accepted that the mediation process, along with the subsequent adjudication hearing, did not involve any related complaint or aspect covered by the Act. I do not believe the Complainant acted vexatiously in filing this complaint; rather, it was a misguided submission under legislation that did not apply to him. I am satisfied, however, that it was misconceived and bound to fail.

For the reasons as outlined above I dismiss the complaint in accordance with Section 42(1) of the Workplace Relations Act 2015.

Dismissal of Complaint, Protection of Employment (Fixed-Term Work) Act 2023, Penalisation.