ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00013166
The Rehab Group
A Training Facility
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998
Date of Adjudication Hearing: 15/05/2018
Workplace Relations Commission Adjudication Officer: Valerie Murtagh
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Acts, 1998 – 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
The complainant has a hearing disability and was engaged on a training course with the respondent in January 2012. She is claiming that she was not provided with reasonable accommodation for her disability and that she was subjected to victimisation by the respondent. She is also making a claim of harassment. In addition, she is claiming that she has been constructively dismissed from the course.
Summary of Complainant’s Case:
1.1 The complainant states that she was discriminated against by the respondent on grounds of her disability. She states that no assessment was carried out by the respondent into her disability and no efforts were made to provide her with reasonable accommodation despite numerous requests. She submits that she was not able to learn on the course because of her positioning in the classroom and her unfamiliarity with the computer system. She is claiming that she was subjected to harassment by the course tutor. She submits that the tutor was constantly shouting and bullying her and sniggering at her. On 17 September 2012, she requested a copy of the respondent’s anti-bullying policy and its Health and Safety statement. She states that the respondent refused to provide her with a copy of the anti-bullying policy. She also requested a copy of the grievance procedure and states that she was given different versions of it. The complainant submits that she made a protected disclosure in September 2012 regarding the suicidal ideation of a fellow trainee and was subjected to victimisation thereafter. She also contends that she was victimised in the failure by the respondent to provide her with the anti-bulling policy.
1.2 The complainant submits that in December 2012, she had an accident that resulted in injury. She claims that she was temporarily discharged from the course by the respondent on 25 January 2013 for a supposed accrual of 20 sick days over a calendar 4 month period. She states that she submitted a letter to the respondent dated 13 January 2013 that “she was not sick and was in fact very well”. She states that she set out for the Training Course on 13 January but was unable to access the training due to the unsafeness of the training situation, the lack of any reasonable accommodation, the failure to have adequate policies in place and the refusal to provide her with the anti- bullying policy.
1.3 The complainant also claims that she was victimised following taking an equal status claim while temporarily exited from the course. She submits that the respondent failed to make any efforts to reasonably accommodate her or make any provision for her whatsoever even after she brought said claim to the WRC. The complainant contends that in this regard the respondent continued to directly discriminate against her, to harass her and victimise her. The complainant states that the discrimination is a continuing act.
1.4 The complainant states that she attempted to bring forward her full claim as a trainee before the previous adjudication officer but was precluded from doing so as the complainant contends that said claim comes under the Employment Equality Acts. In this regard, the complainant states that she received a letter dated 15 December 2011 from Mr. W of the respondent organisation offering her a place for “vocational training” and requesting her to bring her registration to her “local FAS office” constituted the complainant’s contract. In addition, the complainant states that she was paid by FAS. The complainant contends that while the respondent may have held itself out as an educational establishment, the participants were treated as trainees on a path to employment. The complainant submits that the training contracted for was vocational training provided under a FAS service agreement, and under the auspices of a Named Training Centre, FAS. The complainant also contends that all official documents in the respondent organisation cited a FAS traineeship. The complainant submits that she is making the within claim pursuant to her status under section 12 of the Employment Equality Acts as a trainee.
1.5 The complainant contends she may be considered an employee pursuant to 2(e) of the Memorandum of Association of the respondent organisation which states: “To make provision for the education and training of employees and prospective employees of the Company and others as may seem to the Company to be advantageous to or calculated, whether directly or indirectly, to advance the interests of the Company or any member thereof.”
1.6 The complainant submits that she was constructively dismissed from her traineeship on 25 January 2018. The complainant states that she issued a letter dated 24 October 2017 to the respondent outlining that she wanted to return to the training, however she states that the correspondence was ignored by the respondent.
1.7The complainant cites the following decisions, Nano Nagle v Marie Daly [2018} IECA 11, National Museum of Ireland v Minister for Social Protection  IEHC 135 and Dormer v Allied Irish Banks Plc  IECA 199 in relation to matters of res judicata raised by the respondent.
Summary of Respondent’s Case:
2.1 On a preliminary point, the respondent states that the claims made by the complainant previously came before the WRC under the Equal Status Acts in relation to the provision of services in terms of Section 5 of that Act and a decision was issued on the matter DEC-S2017-050. The respondent argues that the claims which are documented in that decision are the same as the detail outlined in the complaint form submitted to the WRC under the Employment Equality Acts. The respondent contends that the complainant is pursuing identical facts and alleged incidents as in the previous claim under the Equal Status Acts.
2.2 The respondent argues that within claim is res judicata and cannot be re-litigated. The respondent cites the case of O’ Driscoll v Dunne  IEHC 100 in this regard. In addition, the respondent argues that in the absence of some exceptional circumstance, a party to proceedings will not be permitted, in subsequent proceedings before any other court or tribunal, to advance a claim which could have been made and determined in the first proceedings. The respondent contends that while this principle was previously characterised as an aspect of the strict doctrine of res judicata, the more recent practice appears to be to treat it as part of the distinct doctrine that a court should not again entertain a disputed issue which was, or could have been decided previously. The respondent cites the caselaw of Henderson v Henderson (1843) 3 Hare 100 in this regard.
2.3 The respondent states that the complainant has lodged complaints relating to discrimination and victimisation under two separate pieces of legislation based on the same set of facts, under the Equal Status Acts 2000-2004 and the Employments Equality Acts, 1998 -2015. The respondent strongly reiterates that the matter is res judicata and cannot be re-litigated and that the WRC has no jurisdiction in the matter on that basis.
2.4 The respondent highlights that the Adjudicator, in hearing this identical claim on 18 May 2017, determined the following; “In this hearing which lasted over two hours, a comprehensive investigation of the complaint took place and all aspects of the complaint were fully ventilated. In accordance with Section 25 (4) of the Equal Status Acts, I conclude this investigation and issue the following decision. Only the complained of correspondence on March 22 is within time. I find there is no act of less favourable treatment of the complainant on the grounds of her disability. The complainant has failed to establish a prima facie case in respect of earlier incidents that might bring them within jurisdiction as part of the continuum of acts of less favourable treatment. Accordingly, I dismiss the complaints.”
2.5 The respondent submits that the complainant had the opportunity to appeal the Adjudicator’s decision to the Circuit Court and could have made a further appeal to the High court on a point of law. The respondent argues that this would have been the most appropriate form of redress for the complainant, in relation to her original complaint. However, the respondent submits that without prejudice and in the alternative, the complainant has not established a prima facie case against the respondent company and that the within complaint is frivolous and vexatious and should be dismissed.
2.6 The respondent states that the complainant referred a claim in September 2013 under the Equal Status Act and the case was duly delegated to an Adjudication Officer for investigation. The respondent submits that the matter has already been decided in the first Adjudication hearing under the Equal Status Act, that the respondent fell within the definition of a “service provider” within the meaning of section 4 of the Act in respect of the complainant and/or an educational establishment within the meaning of section 7 of that Act and it was submitted that the complainant had an entitlement to have her claim heard under those provisions. The respondent contends that consequently the WRC does not have jurisdiction to hear the within claim as the complainant does not fall within the definition of an employee under the Employment Equality Acts, 1998 – 2015. The respondent reiterates that the complainant was not an employee of the respondent at the relevant time, nor ever has been and does not have the locus standi to maintain the instant complaint.
2.7 The respondent also argues that as the complaint form was lodged by the complainant on 25 January 2018, the WRC has no jurisdiction as it is clearly out of time. The respondent submits that it is clear from the complaint form that all dates referred to in relation to an alleged act of discrimination relate to 2012/2013.
2.8 Without prejudice to the above, the respondent submits that it received no correspondence from the complainant in relation to a purported letter she sent to it in October 2017 and noted that she did not produce a copy of same at the hearing.
Findings and Conclusions:
3.1 I have considered all the evidence both written and oral presented to me. Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to her. If she succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the respondent. In deciding on these complaints, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. In a previous Determination, the Labour Court, whilst examining the circumstances in which the probative burden of proof operates, held as follows –
"Section 85A of the Acts provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”
3.2 Disability is defined in Section 2 of the Acts:
(a) the total or partial absence of a person’s bodily or mental
functions, including the absence of a part of a person’s
(b) the presence in the body of organisms causing, or likely to
cause, chronic disease or illness,
(c) the malfunction, malformation or disfigurement of a part of
a person’s body,
(d) a condition or malfunction which results in a person learning
differently from a person without the condition or
(e) a condition, illness or disease which affects a person’s
thought processes, perception of reality, emotions or
judgement or which results in disturbed behaviour,
and shall be taken to include a disability which exists at present, or
which previously existed but no longer exists, or which may exist in
the future or which is imputed to a person;
I am satisfied that the complainant’s disability comes with the definition outlined above.
3.3 The complainant submits that she is pursuing a claim as a trainee in relation to vocational training which comes within the ambit of the Employment Equality Acts. Section 2 of those Acts state, inter alia, that ''vocational training'' shall be construed in accordance with section 12(2); and cognate words and expressions shall be construed accordingly. Section 12(2) of those Acts states that "in this section ''vocational training'' means any system of instruction which enables a person being instructed to acquire, maintain, bring up to date or perfect the knowledge or technical capacity required for the carrying on of an occupational activity and which may be considered as exclusively concerned with training for such an activity".
Section 2(1) of the Employment Equality Acts covers dismissal and constructive dismissal. This section provides that dismissal, includes the termination of a contract of employment by the employee (whether prior notice of termination was or was not given to the employer) in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled to terminate the contract without giving such notice, or it was or would have been reasonable for the employee to do so, and “dismissed” shall be construed accordingly.
While the complainant alleges she was constructively dismissed from the traineeship. I find that based on the above definition that she was not an employee of the respondent within the meaning of the Act and therefore the issue of constructive dismissal does not arise and accordingly I dismiss said claim.
Having carefully examined the totality of the evidence in relation to the allegations of discrimination on grounds of disability, harassment and victimisation, I find that there is no act of discrimination that comes within the time-frame set down in the Employment Equality Acts. The acts of alleged discrimination relate to incidents in 2012/2013 and were fully ventilated before an Adjudicator Officer in DEC -S2017-050. While the complainant has argued that the discrimination is a continuing act, she has provided no evidence to substantiate this claim. There is much precedent caselaw wherein the Labour Court has stated that “mere assertions cannot be elevated to the status of evidence”.
3.4 Having examined all the evidence in the instant complaint, I find that the matters raised herein relate to the exact same set of facts as previously adjudicated in Decision No. 2017-050 under the Equal Status Acts. On that basis, I am of the view that the complainant cannot now seek to re-open the same set of facts before the WRC again in these proceedings.
In Re Vantive Holdings 2 I.R. Chief Justice Murray cites with approval the following summary of the rule in Henderson v Henderson: -
“The rule in Henderson v. Henderson is to the effect that a party to litigation must make its whole case when the matter is before the Court for adjudication and will not afterwards be permitted to re-open the matter to advance new grounds or new arguments which could have been advanced at the time. Save for special cases, the plea of res judicata applies not only to issues actually decided but every point which might have been brought forward in the case.
In its more recent application this rule is somewhat mitigated in order to avoid its rigidity by taking into consideration circumstances that might otherwise render its imposition excessive, unfair or disproportionate. Viewing it through the prism of estoppel and res judicata, the rule in Henderson v. Henderson strictly speaking applies to proceedings between parties where those proceedings determine the rights or obligations between those parties. It is intended, inter alia, to promote finality in proceedings and to protect a party from being harassed by successive actions by another party when the issues between them either were or could have been determined with finality in the first proceedings.”
Cause of action estoppel is defined in “Res Judicata and Double Jeapardy” by Paul A. McDermott (Butterworth 1999, at p 57);-
“The term “cause of action” estoppel signifies the estoppel which arises between parties by reason of a judgement given in favour of one and against the other with respect to the cause of action set up in the first proceedings. Its operation prevents a party to an action from asserting or denying as against the other party the existence of a cause of action, the existence or non-existence of which has already determined by a court of competent jurisdiction in previous litigation between the parties. To succeed in such a plea it must be shown that the cause of action in the earlier action is the same as that raised in the second action; D v C  ILRM 173 at 192 (HC).”
A concise definition of cause of action estoppel (and issue estoppel) as offered by Blayney J. in Gilroy v McLaughlin  ILRM 133, at 136, as follows: -
“In cause of issue estoppel the question is whether a plaintiff is estopped from bringing a particular action by reason of having brought a similar action previously against the same party, while issue estoppel is concerned with whether a particular issue has previously been determined between the same parties by a Court of competent jurisdiction.”
Having adduced the totality of the evidence in the within claim, I am of the view that the facts in the within proceedings were dealt with in DEC -S2017 -050 and consequently the complainant is estopped by that Decision from seeking to relitigate that cause of action again. I am satisfied that there are no special circumstances applying in this case that would support a decision to rehear the facts of the case. In the circumstances, I have no jurisdiction to deal with said complaints.
Section 41 of the Workplace Relations Act 2015 and Section 79 of the Employment Equality Acts 1998-2015 requires that I make a decision in relation to the complaint.
I find that I have no jurisdiction in relation to the instant complaint as the matter is res judicata. In addition, the complainant has failed to establish a prima facie case of discriminatory treatment that would bring the alleged incidents she complains of within jurisdiction as part of a continuum of acts of less favourable treatment. I find that the claim is manifestly outside the time limits as set down in the employment equality legislation and accordingly I dismiss said complaints.
Dated: 22nd October 2018
Workplace Relations Commission Adjudication Officer: Valerie Murtagh
disability, reasonable accommodation, harassment, victimisation, jurisdiction, time limits, constructive dismissal
 Arturs Valpeters v Melbury Developments  21 E.L.R. 64.