ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00054027

Parties:

	Complainant	Respondent
Parties	Patrick William Guinan	Bord Na Mona

Representatives

Andrew Turner Hamilton Turner Solictors

Declan MacQuillan Arthur Cox

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00066019-001	09/09/2024
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00066019-002	09/09/2024
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00066019-003	09/09/2024
Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946	CA-00066019-004	09/09/2024

Date of Adjudication Hearing: 04/12/2024

Workplace Relations Commission Adjudication Officer: Breiffni O'Neill

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

This hearing was held in conjunction with ADJ 49745, ADJ 52492, ADJ 55098 and the decisions should be read in conjunction with one another.

As can be seen from the four ADJs above, there were over 40 complaints made by the Complainant, the first batch of which was made in December 2023 (ADJ 49745). When I asked why written submissions had not been furnished in relation to any of the complaints, especially given that some of them had been made almost 12 months prior to the hearing day, the Complainant stated that he had not engaged a solicitor at the time and added that he had engaged Mr Turner about six months in advance of the hearing day of 4 December 2024. This was contradicted by Mr Turner who said it was 2 or 3 months. It was clear from the WRC file however that Mr Turner was notified formally of the initial hearing date of this matter no later than 25 July 2024 and that he was subsequently granted a postponement on 8 August 2023. Sufficient time was therefore given for written submissions to be provided and there was no explanation provided by either Mr Turner or the Complainant to explain why it was not.

Having dealt with the failure to provide written submissions, I then proceeded to address the complaints in detail with Mr Turner at the hearing. I stated firstly that it was clear from the complaint forms that many of the alleged breaches of the legislation could not have applied to the Complainant given that he was employed by the Respondent as a Fitter on a permanent contract of employment. Specifically, these complaints related to multiple allegations of breaches of EROs which only apply to security guards and contract cleaners, breaches of legislation which only apply to mobile workers working in civil aviation, and breaches of the fixed term work legislation, applicable to employees working on a fixed term contract. The Complainant also stated that the Respondent breached the Equal Status Act in relation to him even though he was an employee.

Mr Turner accepted that that these complaints should not have been submitted and that this issue could be addressed in the context of a case management session. I explained that this was not the purpose of such a session and that such complaints should have been withdrawn in advance of the hearing, if he now accepted that such complaints could not apply to the Complainant’s employment. Despite me having asked him, Mr Turner could not explain why these complaints were not withdrawn in advance of the hearing.

I also stated that it appeared there were multiple duplicate payment of wages and OWT complaints on the submitted forms which were either lacking in any coherent detail or appeared to have been addressed in the context of the settlement reached at the WRC on 28 June 2023, as the Respondent asserted. Mr Turner did not challenge me on any of my assertions and stated once again these could be addressed in the context of a case management session. I again explained that this was not the purpose of such a session.

There were also multiple complaints made under the Employment Equality Act on the basis that the Complainant was discriminated against because of his civil and family status and because he had a disability. Again, he failed to particularise what his family, civil status or his disability was. The Complainant also alleged that he was discriminated by way of occupational pension even though he was not entitled to drawdown his pension whilst he remains in employment per the provisions of the Respondent’s occupational pension scheme.

The Complainant also referred numerous complaints under the Parental Leave Act but failed to provide any detail in relation to these.

I also highlighted that there were other complaints in respect of which there was no narrative whatsoever on the submitted forms and that it appeared the Complainant had just ticked a series of boxes, such as the complaints of penalisation made under the Protected Disclosures Act, the Safety Health and Welfare at Work Act, the Terms of Employment Information Act, The Industrial Relations Act and the Prevention of Corruption Amendment Act.

Mr Turner again did not challenge me on any of my assertions and stated that all of these complaints could be addressed in the context of a case management session. I again explained that this was not the purpose of such a session and that a brief overview of such complaints should have been included either in the complaint forms or addressed by way of submission to enable a case management session to proceed.

Considering all of the foregoing points, and following an application by the Respondent’s representative to do so, I dismissed the complaints because I found all of them to be frivolous and/or vexatious as it seemed to me that the Complainant had just engaged in a box ticking exercise when completing the forms. Moreover, I noted neither he nor his representative made any subsequent efforts to specify or clarify what these complaints were about prior to the hearing.

While I recognise that, in deciding to dismiss the complaints, the Complainant was deprived of a hearing, both he, and more importantly his representative, should recognise that it is not fair to allow someone to simply tick multiple boxes on a complaint form (s)—over 40 in this case— and submit them to the WRC without offering a coherent explanation or any narrative whatsoever to clarify the precise nature of any of these complaints. In the first instance, this forces an Employer to spend considerable time and resources trying to decipher the issues. It also wastes the WRC’s time by requiring an Adjudication Officer to do likewise, resulting in the request for additional hearing days when this preparatory work should have been completed by the Complainant and/or their representative beforehand. Most importantly of all, it delays a hearing day for someone else who has taken the time and the effort to submit a detailed and reasoned complaint, which may relate to a significant life impacting event.

Background:

The Complainant commenced his employment as a Fitter with the Respondent on 31 August 1981. As set out in the preamble above, he submitted numerous complaints to the WRC under various pieces of employment legislation.

Summary of Complainant’s Case:

See the preamble above.

Summary of Respondent’s Case:

See the preamble above.

Findings and Conclusions:

The Law:

Section 42(1) of the 2015 Act is entitled “Dismissal of claim by adjudication officer” and provides 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.”

It is widely accepted by the Courts that the terms “frivolous” and “vexatious” are legal terms which can be often used interchangeably as held by the Barron J in James Farley v. Ireland, An Taoiseach, Cabinet Ministers and the Attorney General [1997] IESC 60:

“So far as the legality of matters is concerned frivolous and vexatious are legal terms. They are not pejorative in the 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.”

Birmingham J. provided a legal definition of “frivolous” in Peter Nowak v. Data Protection Commissioner [2012] IEHC 499, where he held that: “frivolous, in this context does not mean only foolish or silly, but rather a complaint that was futile, or misconceived or hopeless in the sense that it was incapable of achieving the desired outcome”.

I further note In J.O’N v. S McD & Others [2013] IEHC 135, Birmingham J, in considering applications made by the defendants to strike out the plaintiff’s claim for failing to disclose a reasonable cause of action and as being frivolous and/or vexatious, described the words “frivolous” and “vexatious” as follows:

“…the words “frivolous” and “vexatious” are terms of art, they are legal terms and they are not used in a pejorative sense. They merely mean that the plaintiff has no reasonable chance of succeeding and that, because there is no reasonable chance of success, it is frivolous to bring the case. By the same token it imposes a hardship on the defendant if he has to expend time, effort and money in defending an action which cannot succeed and that is regarded as vexatious…”

In dismissing the plaintiff’s case, Birmingham J stated as follows:

“…In my view the plaintiff has no reasonable chance of succeeding against the first named defendant and it would be oppressive to require the defendant to have to take on the burden of defending proceedings which are fundamentally misconceived…”

I also note the decision in Goode Concrete v. CRH plc [2012] IEHC 116 wherein, at para. 36, it was stated:

“A plaintiff's right of access to the Courts is not absolute and the Court has jurisdiction to prevent the right being abused by, for example, dismissing a case for inordinate delay or as frivolous, vexatious or bound fail in order to prevent injustice to a defendant (see Barry v Buckley [1981] IR 306).”

In Loughrey v. Dolan [2012] IEHC 578 Laffoy J. relied on a decision of the Ontario High Court of Justice in Re Lang Michener and Fabian (1987) 37 D.L.R. (4th) 685, cited by the High Court in Riordan v. Ireland (No. 5) [2001] 4 I.R. 463 and Behan v. McGinley [2011] 1 I.R. 46, and which listed a number of factors which tend to indicate that proceedings may potentially be vexatious in nature and thus amenable to being struck out. These factors, which are not meant to be exhaustive, are inter alia:

(a) whether the issues in dispute are matters which have already been determined by a court of competent jurisdiction, i.e. res judicata;

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

(c) where the action is brought for an improper purpose, including harassment and oppression of other parties, as opposed to asserting legitimate legal rights;

(d) where grounds and issues sought to be litigated tend to be rolled forward into subsequent actions and repeated and supplemented;

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

(f) where the plaintiff persistently takes unsuccessful appeals against judicial decisions.

(g) where there is the persistent taking of unsuccessful appeals from judicial decisions.

The terms “frivolous or vexatious” were carefully considered by the High Court in Patrick Kelly v. The Information Commissioner [2014] IEHC 479 which is instructive as to the meaning of these terms:

“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.”

As set out in the preamble above, I find that the WRC Complaint Form did not disclose any presentable claim against the Respondent. In addition, no submissions were furnished by the Complainant or his representative prior to the hearing in relation to any of the complaints. Therefore, in the legal sense of the phrase in section 42(1) of the 2015 Act, all of the complaints against the Respondent should be dismissed on the basis that they are “frivolous or vexatious”.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

CA-00066019-001 - CA-00066019-004:

For the reasons set out above, I dismiss these complaints in accordance with section 42 of the Act.

Dated: 27th of March 2025

Workplace Relations Commission Adjudication Officer: Breiffni O'Neill

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