ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00054260

Parties:

Complaint:

Date of Adjudication Hearing:  17/02/2025

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015  and/or 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 matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and S.I. 359/2020, which designated the WRC as a body empowered to hold remote hearings.

Background:

The Complainant contends that he was dismissed for discriminatorily reasons.  The Respondent submitted a preliminary issue that the complaint had previously been heard and was res judicata.

Summary of Respondent’s Case:

The Respondent raises a preliminary issue and wishes to make an application regarding the matter which goes to the jurisdiction of the WRC to hear the claim.

Prior to doing so, it is necessary to set out the background to this case related to the preliminary issue, as the matter is unusual, with the Complainant herein already having unsuccessfully alleged that he was discriminated against for allegedly opposing discrimination on the grounds of race. A WRC decision is already in being in relation to the very circumstances which the Complainant is now seeking to litigate for the second time.

The Complainant in this matter was employed by the Respondent for a number of months in 2023 into 2024, commencing on the 4th September 2023 and terminating on the 22nd March 2024. He was not retained in employment as he did not pass his probationary period. He was therefore dismissed from his employment on the 22nd March 2024.

He subsequently lodged WRC proceedings alleging inter alia that he had been discriminated against on the basis of opposing discriminatory reasons. While the complaint form did not tick any boxes specifying any on the 9 grounds, the Complainant alleged at the hearing of the matter that the discrimination related to race.

A decision issued on this matter on the 11th November 2024 reference number ADJ-00050869.

While the Respondent made preliminary objections regarding the manner in which the complaint was issued at the commencement of the hearing, the Complainant did not withdraw his complaint, albeit that he had an opportunity to do so at the hearing of the matter. He was, at that point, within time to withdraw his complaint and lodge a further complaint. The Adjudication Officer therefore proceeded to decide the equality cases before her, based on the case put forward by the Complainant. The Adjudication Officer records as the case put forward by the Complainant as being based on

‘the Complainant gave sworn evidence and made oral and written submissions as follows (in his own words)…”

Prior of the issuing of the decision in the above matter the Complainant lodged a further complaint under the same act, on the same grounds, and related to the same alleged circumstances.

The narrative in the complaint form issued in relation to case number ADJ-00050869 matches almost verbatim the narrative set out in the Complainants complaint form related to these proceedings.

The Adjudication Officer, having considered the Complainants evidence and that of the Respondent held as follows:

The Complainant submitted a complaint “that he was dismissed for a discriminatory reason or for opposing discrimination”. This was the wording used in the complaint form. The Complainant subsequently produced a submission, claiming discrimination and victimisation for “being a foreigner”, as outlined in the Complainant’s case summarised above. The Respondent submitted that on the face of the Complaint forms lodged on 2 April 2024 and on 20 July 2024 the Complainant had not specified on what ground(s), as set out in s6 of the said Act (Discrimination for the purposes of this Act), he is making the purported complaint(s). It was submitted that as the Complainant has not pleaded any ground(s) of discrimination as per s6 of the said Act he has not pleaded any cause of action…

In order to have a complaint considered a Complainant must identify one or more grounds on which it is contended discrimination has occurred. In this instant case, no ground was cited by the Complainant on his complaint form.The complaint form outlined many complaints and grievances he had against the Respondent. While no ground was selected, he did make a submission in which he stated

“My dismissal is based on unreasonable grounds. During my time at CB, I was consistently a victim of discrimination for being a foreigner established on ground of race discrimination…

The Complainant in this instant case has firstly not identified the ground on which he based his claim and then submitted general assertions that he had been dismissed “based on unreasonable grounds”. He stated that he “was consistently a victim of discrimination for being a foreigner established on ground of race discrimination”. The Act prohibits discrimination as between any two persons where they are of a different race or national origin. The Complainant has failed to establish any facts or identify a comparator where he was treated less favourably than another in respect of race or national origin. I find the complaint to be not well founded.

As the matters set out in the complaint form in this matter are identical to those referred to in the decision in ADJ-00050869 the matter cannot proceed further as it is Res Judicata.

Preliminary Issues\Applications

Res Judicata\Abuse of process\Frivolous and Vexatious claim.

The Complainant has already unsuccessfully claimed that the matters contained in his complaint form amounted to discrimination before the WRC in ADJ-00050869. The WRC has already held that matters alleged by the Complainant did not amount to discrimination, and did not amount to dismissal for opposing discrimination.

The Complainants current complaint alleges discrimination on the same ground, and under the same circumstances as those which have already been adjudicated upon by the WRC. This forum has already decided that no such discrimination occurred. The WRC cannot revisit that decision, and as such the Complaint is fundamentally misconceived, an abuse of process, frivolous, vexatious, res judicata and bound to fail. If the Complainant has an issue with the Adjudication Officer having proceeded to adjudicate on the case, it was open to him to appeal that decision, or, in the appropriate circumstances, to seek a judicial review of the decision.

Henderson v. Henderson (1843) 3 Hare 100, 114 is applicable in this instance, in the said case Wigram stated as follows:

‘[W]here a given matter becomes the subject matter in and of adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of Res Judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion, and pronounce judgement, but to every point which properly belonged to the subject of litigation, and to which the parties exercising reasonable diligence, might have brought forward at the time’

Kearns J in S.M v Ireland [2007] 3 IR 283, 295 stated with regard to the rule on Henderson v. Henderson that:

‘the purpose of the rule is to uphold an important principle of public policy which demands, in the interests of justice, that defendants are not exposed to successive suits where one would do’.

The Respondent has successfully defended the Complainants claim. It cannot be required to do so again. It is submitted that the matter is Res Judicata and that the rule in Henderson v Henderson applies.

In Ewing v Ireland [IESC] 44 the Supreme Court confirmed that:

‘there is no duty to allow the continuance of unstateable cases to full hearing’.

In that case, the Appellants appeal was struck out on the basis that it was based on matters previously decided by courts of competent jurisdiction. It is submitted that where it has already been decided by this forum that no discrimination took place, the complainant’s case is entirely unstateable.

Summary of Complainant’s Case:

The Complainant referred to the hearing held on 2 September 2024 in which the Representative of the Respondent Company stated that he had not ticked the box to indicate on what grounds he believed he was subjected to discrimination. He stated that he submitted the same complaint as he was told to submit a complaint containing the grounds under which he wished to submit his complaint of discrimination.

Findings and Conclusions:

The Respondent seeks a preliminary decision that the Complainant’s complaint is Res Judicata, as the complaint was heard, a decision was issued, and it cannot be heard again. The case law cited by the Respondent, i.e. S.M v Ireland [2007] 3 IR 283, 295 is relevant.  In that case Kearns J stated with regard to the rule on Henderson v. Henderson that:

‘the purpose of the rule is to uphold an important principle of public policy which demands, in the interests of justice, that defendants are not exposed to successive suits where one would do’.

I note the Complainant has submitted the exact same complaint as that heard on 2 September 2024 and a decision has issued.   The Complainant had the right to appeal the decision.

In this instant case, the Complainant submitted that he was advised to make a further complaint as the Respondent made the point at the hearing held on 2 September 2024 that he had failed to ‘tick the box’ of what ground(s) he was pursuing his complaint. 

As the Complainant submitted the exact same complaint as that heard to conclusion on 2 September 2024, I find the matter is res judicata, cannot be heard again and I find the complaint to be not well founded.    

Decision:

Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

Based on the reasons above, I have decided that the complaint is not well founded.

Dated:   03.04.2025

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

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