INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 29(1), SAFETY, HEALTH AND WELFARE AT WORK ACT, 2005
AN GARDA SIOCHANA
- AND -
MAIRE O' REILLY
Chairman: Mr Duffy
Employer Member: Ms Cryan
Worker Member: Mr Shanahan
1. Appeal of Rights Commissioner's Decisions r-126175/126339/126340/126341/126342/126343-hs-12/RG.
2. This dispute concerns the Worker's claim that she was penalised after making health and safety complaints to the Respondent, in contravention of Section 27 of the Safety, Health & Welfare Act, 2005. This dispute was referred to a Rights Commissioner for investigation and recommendation. The Worker appealed the Rights Commissioner's Decisions to the Labour Court on 30th July, 2013, and a Labour Court hearing took place on 25th October, 2013.
This matter came before the Court by way of an appeal by Maire O’Reilly (the Claimant) against decision of a Rights Commissioner in her claims of penalisation by the Commissioner of An Garda Síochána (the Respondent) contrary to section 27 of the Safety Health and Welfare at Work Act 2005.
The appeals relate to six Rights Commissioner decisions given on 20thJune 2013, bearing the following reference numbers: -
Each of the claims was presented to the Rights Commissioner on 17thSeptember 2012. One claim (bearing reference number r-126175-hs-12/RG) was dismissed as being out of time. The other claims were dismissed in circumstances in which the Claimant had refused to present her complaint.
The Claimant brought three previous appeals before the Court resulting in Determinations HSD127, HSD137 and HSD138. On an examination of the papers filed in relation to each of the instant appeals the Court formed the preliminary view that the subject matter of the claims giving rise to these appeals was the same as that which gave rise to the aforementioned Determinations. In these circumstances the Court decided to consider, as a preliminary matter, if the Claimant was estopped from pursuing the within appeals by application of the doctrine ofRes Judicata.The Court informed the parties that it would deal only with that question at the scheduled hearing of the appeals on 25thOctober 2013.
The Claimant is a member of An Garda Síochána. She was removed from the payroll of the Respondent in or about December 2009. She contends that this occurred in circumstances amounting to penalisation contrary to s.27 of the Act. The Claimant further contends that she made complaints of bullying against certain members of An Garda Síochána and that the Respondent failed to adequately investigate these complaints. This, she contends, constitutes a further act of penalisation or a continuing act of penalisation. These contentions formed the subject matter of the cases taken by the Claimant which resulted in the Determinations of the Court previously referred to (hereafter referred to as ‘the previous claims’). In each case the Court dismissed the Claimant’s complaints.
Each of the present claims seek the same redress as that sought in the previous claims, namely, compensation for being removed from the Respondent’s payroll and restoration to her full duties as a member of An Garda Síochána. While the Claimant is seeking to rely on various different occurrences to ground this series of claims the Court is satisfied that in substance each of them relates to her removal from the payroll and /or what she regards as the failure of the Respondent to adequately investigate her claims of bullying. They are, therefore, identical as to subject matter to the claims previously dealt with to finality by the Court in the previous claims.
Doctrine of Respondent Judicata
It is a well settled principle of law that once a cause of action is finally determined by a court or tribunal of competent jurisdiction in favour of one party and against the other that cause of action cannot be litigated again as between the same parties. This is technically referred to estoppelper rem judicatamorres judicata. In considering the applicability of that legal doctrine in cases such as this the Court should look at the substance of the claim rather than the form in which it is expressed. If a claim is in reality the same as a claim previously pursued between the same parties to finality the doctrine applies. That cannot be overcome by seeking to recast the claim in different terms or in reliance on ostensibly different grounds that are devoid of substance.
In this case counsel for the Respondent submitted that four of the cases before the Court areres judicataon the strict application of that doctrine in that they are grounded on the same set of facts as the previous cases. Counsel went on to submit that while two of the cases appear to be based on different facts the grounds relied upon are spurious and in substance those claims are also the same as those previously determined by the Court. It was submitted that those claims are alsores judicata.
The Court sat for over one hour during which the Claimant was repeatedly asked to make her submissions on the preliminary point at issue. She refused to make any coherent submissions directed at this question or to identify any substantial difference between the instant cases and those previously pursued by her to finality. Rather, she confined herself to raising issues relating to the conduct of the previous hearings and to raising extraneous issues.
In formulating the instant claims the Claimant has sought to rely on what she contends are new or different instances of penalisation all of which flow from the events that resulted in her removal from the payroll. The Court is satisfied that even if the events now relied upon did occur (and the Court makes no such finding) they do not disclose any form of penalisation within the statutory meaning and are now being raised by the Claimant merely in an attempt to re-litigate her previous claims.
This Court has a duty to ensure that the scarce resources made available to it by the State are not wasted by rehearing cases that it had previously disposed of and which, on that account, are bound to fail.
For the reasons set out above the Court has concluded that all of the claims which form the subject matter of these appeals areres judicata. Accordingly they are all struck out and the decisions of the Rights Commissioner to which they relate are affirmed.
Signed on behalf of the Labour Court
8th November, 2013______________________
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.