Complainant

Respondent

Parties

Ultan  Kearns

Revium (Formerly 10G Business Development & Consulting Ltd) Revium

Representatives

David Byrnes, B.L. instructed by Noble Law Solicitors

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00065428-003

15/08/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00065737-001

02/09/2024

This was a complaint of constructive Unfair Dismissal. (A second complaint, CA-00065777-001 was withdrawn). The case was scheduled for hearing on two occasions, the first, online on December 10th, 2024, and the second on April 2nd, 2025, when neither party attended.

The complainant gave evidence on affirmation at the first hearing.

The complainant submitted that he had to leave his job due to a lack of transparency around his salary and late payment. There were also issues due to the failure of the respondent to verify the complainant‘s employment status.

He said that he had brought these issues up with his employer on several occasions but there was no resolution.

In his evidence he said that he had been treated as a contractor (i.e., as being on a contract for services) while on probation. He drew attention to the contradiction in this in that contractors do not have to serve a probationary period. Further he had fixed hours of work, subject to some variation, had a fixed salary from which statutory deductions were made etc.

He was given annual leave and required to work exclusively for the respondent, and he had a liability to disciplinary action.

In the course of cross examination, he was asked repeatedly and at length about the letter of offer of employment which had not been signed on behalf of the entity which was his employer.

He said that he did not know when the respondent became incorporated but eventually accepted the date put to him by Counsel. It was put to him that it was not possible that he had a contract of employment with the respondent as it had not been incorporated at the time the contract was signed until June 3rd, 2023.

(The hearing adjourned in due course for reasons that are explained in the Decision below.)

The respondent attended the first online hearing on December 10th, 2024 but did not attend the re-scheduled hearing on April 2nd, 2025. The hearing did not reach a point where evidence was heard from the respondent.

The complaint  was first heard on December 10th, 2024.

At that hearing, the complainant gave evidence following which counsel for the respondent made an application seeking the recusal of the Adjudicator. 

However, despite reading very  lengthy extracts from a judgement purporting to be authority on the subject of bias as it affected the hearing, he failed, indeed refused to make any connection between the law on which he sought to rely and any specific conduct on the part of the Adjudicator, even when specifically invited to do so.

For that reason and given his stated intention to read from a further seventeen such cases, he was invited to make a written submission on the law on bias as it applied to the conduct of the hearing and his reasons for seeking the recusal, and to do so by January 24th, 2025.

He again failed to do so, and no submission was received. 

Taken with his earlier cross examination of the complainant the application for recusal appeared to be merely a filibuster designed to disrupt the efficient hearing of the complaint, as further evidenced by the excessive time spent in pursuit of the question referred to in the complainant‘s evidence above about the signing of the contract of employment.

Certainly, this is how it was seen by the complainant.

Accordingly, the hearing was re-scheduled for April 2nd, 2025, and both parties were notified of the hearing on February 19th, 2025. It was re-scheduled for an ‘in-person’ hearing because of the difficulties at the first hearing.

Matters then took an unusual turn.

Around March 18th, 2025, the complainant indicated that he would not attend the resumed hearing and submitted his reasons for not doing so.

These included strong criticisms of the conduct of Counsel for the respondent, specifically at the first hearing, which had also been the subject of a written complaint by him (the complainant) to the WRC after the hearing. He also criticised what he saw as the tactical introduction of the recusal request.

However, when asked, the complainant also insisted that he was not withdrawing the complaint and indicated that he wished a decision on it to issue on the basis of the submissions and evidence already heard at the first hearing.

The WRC engaged with him over some time drawing attention to the difficulty this presented.

Essentially that difficulty was that the hearing of evidence had not been concluded, and a Decision could not be issued, specifically as the evidence of the respondent had not been heard, and he, the complainant would not have the opportunity to controvert any evidence that might be given.

This is also relevant in that the burden of proof falls on the complainant in respect of a constructive dismissal complaint.

Some of the reasons the complainant advanced for not wishing to attend might have provided grounds for seeking a postponement (his health), but he also declined the opportunity to make such an application.

As he did not confirm withdrawal of the complaint the hearing remained on the schedule for April 2nd, 2025,  but in the event neither he nor the respondent attended the hearing.

There was no contemporary explanation for the respondent’s failure to attend until April 15th. An email was received from the solicitor for the respondent, who had sadly suffered a family bereavement on March 27th.

From that (and earlier) correspondence to the WRC, it appears as if the respondent had no intention of attending the hearing until the matter of the application for recusal was resolved to its satisfaction. This is despite its failure to conform with the instructions given as to how it should proceed with that application.

An obligation falls on a party to attend a hearing once it has been given notice of it and raise any procedural or jurisdictional issues at the hearing; it is not acceptable to simply not show up, or impose conditions on attendance.

While I take some account must be taken of the circumstances of  the bereavement, it seems that the respondent would not have attended even in the absence of that circumstance.

This is all made somewhat academic by the fact that the complainant gave notice that he would not attend the hearing, and, in the event, he did not do so.

The complainant was unrepresented at the first hearing and undoubtedly was exasperated by the conduct of the respondent’s Counsel at the initial hearing, and subsequently. 

In particular it is hard to disagree with the complainant’s submission that the recusal application was no more than a tactic to obstruct and delay the hearing of the complaint, because it was ultimately not pursued.

Indeed, not only did Counsel for the respondent not avail of the opportunity to make a submission on the recusal as offered to him but it would have been a minimum courtesy to the process and the parties had either he, or some other person on behalf of the respondent indicated that they would not be doing so, thereby avoiding further unnecessary delay in the process.

The possibility that a lay litigant might have had the right to a hearing of his complaint at an employment tribunal adversely affected by such tactics is both worrying and regrettable.

However, the complainant had other options to address that and his decision to withdraw from the process is not one of them. It can only have one outcome.

In circumstances where the complainant withdraws from the process before the hearing has properly concluded and thereby prevents a full hearing of his complaints, I find that this is a de facto withdrawal of the complaints and that they are not well founded.

For the reasons set out above neither complaints CA-00065428-003 or CA-000-65737-001 are upheld.

No attendance by either party