Complainant

Respondent

Parties

Ruth Murphy

Temporary Emergency Accommodation Mullingar

Representatives

In person

MP Guinness B.L. instructed by Gleeson McGrath Baldwin

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00062416-001

22/03/2024

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014

CA-00062416-002

22/03/2024

The complaints were submitted to the Workplace Relations Commission (WRC) on 22nd March 2024 and allege penalisation under the Safety Health and Welfare at Work Act, 2005 and the Protected Disclosures Act, 2014. The complainant, in her own words is seeking to “re-open” an investigation into issues that she raised relating to her employment which ended on 20th August 2015.

Note: The complainant submitted a significant level of additional post-hearing documentation which was not requested. As a result, the additional correspondence has not been considered by me in reaching my decision on the within complaint. 

The respondent raised a number of preliminary points in relation to the complaints. Firstly, the respondent’s position is that the complainant entered into a settlement agreement in November 2016 which addressed all aspects of her employment. Secondly, the respondent stated that the complainant subsequently referred matters to the WRC (ADJ00034354) in May 2021 and was unsuccessful in her complaints due to the complaints being out of time as the employment relationship ended in August 2015. The decision was upheld on appeal to the Labour Court. In addition, the respondent states that the complainant cannot refer a claim of penalisation in respect of her dismissal in accordance with the Protected Disclosures Act, 2014 in circumstances where she has referred a complaint of unfair dismissal under the Unfair Dismissals Act, 1977. Finally, the respondent contends that the adjudication officer does not have jurisdiction to extend the statutory time limit beyond 12 months and as the employment relationship ended on 20th August 2015, the complaints are manifestly out of time.

The complainant is alleging penalisation in contravention of the Safety, Health and Welfare at Work Act, 2005 and the Protected Disclosures Act, 2014. The complaints arise out of issues previously raised by the complainant while employed by the respondent. The complainant’s employment ended in August 2015. The complainant is seeking a re investigation into her complaints and that the settlement agreement she entered into be nullified. The complainant is also seeking that she be supplied with the original settlement agreement which she says she never received and is seeking compensation for the loss and distress she says she experienced over the last number of years.

It is common case that the employment of the Appellant was terminated on 20thAugust 2015 and that the within complaint was made to the Workplace Relations Commission on 22nd March 2024.

The Applicable Law

Section 41 of the Workplace Relations Act, 2015 (the Act of 2015) provides in relevant part as follows:

41(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

·        (8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

Frivolous and Vexatious

Section 42(1) of the Workplace Relations Act, 2015 states as follows:

42. (1) 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 meaning and scope of the words ‘frivolous and vexatious’ were succinctly articulated by a decision of the Supreme Court by Barron J in Farley v Ireland & Ors [(1997) IESC 60, at page 1521 in which it stated:

‘So far as the legality of the matter is concerned frivolous and vexatious are legal terms, they are not pejorative in any sense or possibly in the sense that Mr. Farley may think they are. It is merely a question of saying that so far as the plaintiff is concerned if he has no reasonable chance of succeeding then the law says that it is frivolous to bring the case. Similarly, it is a hardship on the defendant to have to take steps to defend something which cannot succeed and the law calls that vexatious.’‘

In Fay v Tegral Pipes Limited & Ors [[2005] 2 IR 261], the Supreme Court reiterated the principles already well established. McCracken J delivered the Court’s judgement stressing that the ‘real purpose’ of the courts’ inherent jurisdiction to dismiss frivolous or vexatious claims was firstly to ensure that the courts would be used only for the resolution of genuine disputes and not for ‘lost causes’ and, secondly, that parties would not be required to defend proceedings which could not succeed.

Conclusion

The within complaint seeks to re-open a matter relating to the complainant’s employment. The employment relationship ended on 20th August 2015. The complainant entered into a settlement agreement in November 2016 which addressed all matters and claims relating to her employment. Subsequently, the complainant submitted a complaint to the WRC on 11th May 2021 (ADJ00034354 refers). The complainant was unsuccessful in that complaint and was also unsuccessful on appeal to the Labour Court (PDD231 refers).

The within complaint not only seeks to reopen the original complaint but is also referred to the WRC approximately eight and a half years after the employment relationship ended and where the Labour Court has confirmed in Determination No: PDD231 that due to the statutory time limits under the Workplace Relations Act 2015, the 20th August 2015 was the last date that a breach of the Act could have occurred. This means that a complaint must be submitted within 6 months of that date to be regarded as being “in time.” While an extension of time may be granted in accordance with Section 41(8) of the Act of 2015, there is no statutory provision to grant an extension of time beyond 12 months.

In conclusion, I am satisfied that due to the passage of time since the employment relationship ended, the statutory time limits associated with the complaint, and the fact that the subject matter has already been heard at first instance and by the Labour Court on appeal, I find that the complaint cannot succeed and therefore meets the definition of frivolous and vexatious. Accordingly, the complaint is dismissed on that basis.

For the reasons stated above, the complaint is not well founded as I find it to be frivolous and vexatious.