Complainant

Respondent

Parties

Leila  Urazbaeva

Pas - Public Appointments Service

Complainant

Respondent

Anonymised Parties

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Representatives

 Abay Zhaigaliyev

Emmet Hayes Chief State Solicitor's Office

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00066454-001

03/10/2024

The hearing was attended by the Complainant, her representative Abay Zhaigaliyev  and for the Respondent, Lucy Dwyer BL, Emmet Hayes Chief State Solicitor's Office, Rebecca Keane and Dermot Daugherty.

A great deal of documentation has been provided to me, including a substantial submission from the Respondent; all of which have been considered in coming to a decision.

An issue was raised at the outset regarding Data Protection referring to the submission from the Complainant that names and personal information of individuals not connected with the case are referred to in the documentation. The Respondent wished to emphasis that there should be no further mention of such details for GDPR reasons. The Complaint was put on notice of this, was agreeable and no further issue arose.

Having heard the preliminary submissions and the prima facie case, ensuring I had heard everything from the parties I reserved my position on adjourning to consider the case based on these and, if necessary, re-adjourn or otherwise issue my decision. The parties were clear on the process and the Complainant asked that if there should be a further hearing; that if might be held online. I explained that if there was a further hearing they should apply to the Commission to have it heard online, but that was beyond my powers to decide.

Having heard from the parties and allowing them to make their submissions and ensuring that all the required details were before me; the hearing was properly closed.

Preliminary Submissions

Incorrect Legislation

It is submitted that the Complainant has erred in bringing the case under the Equal Status Act and should have brought it under the Employment Equality Acts, if at all, as it relates solely to her employment with the Respondent. The Equal Status Acts have no relevance in this matter and the Complaint is fundamentally flawed and misconceived.  It is submitted that the WRC has no jurisdiction where the complaint has been made under the wrong legislation and that legislation does not address the complaint.

Mirroring of Previously Withdrawn Complaint & Abuse of Process

It is submitted that the complaint is frivolous and vexatious, and the Complainant previously made a complaint against the Respondent (ADJ-00050570) in June of 2025 and was legally represented during this complaint. This complaint mirrors the previous complaint that was withdrawn with the benefit of legal advice and in the present matter she states that she was ultimately persuaded to withdraw her complaint by a Barrister. The Complainant is not entitled to pursue the same complaint again.

It is submitted that the complaint is a duplication of the Complainant’s previous complaint, and this is contrary to the rule in Henderson v. Henderson (1843) 3 Hare 100, and they are not entitled to make the same complaint again or to re-litigate the previous complaint. This new version of the original complaint should be dismissed.

Interrogation of Head of Service

It is further submitted that the Complainant sets out in their complaint form that they wish the WRC to afford her an opportunity to question the head of the service as to why she was dismissed and if there is a place for a person like her in the public service.

It is submitted that it is not the function of the WRC to afford an interrogation of the head of service and that this satisfies the definition of frivolous and vexatious.  It is the Respondent case that this complaint meets that definition and the Complainant cannot be allowed use the Commission for this purpose. For this reason, the Complaint should be dismissed.

Statute Barred

The Respondent sets out that the Complainant is statute-barred. The form sets out the date of employment and refers to incidents of May 29th, 2023, until late November 2023 and the complaint was made to the WRC on the 3rd of October 2024 and as such is out of time.

S21(6) of the Equal Status Act sets out that it must brought within 6 months from the date of the conduct complained of. The most recent date given by the Complainant is 27th of October 2023 and the complaint form was submitted October 2024. The Commission has no jurisdiction to hear the matter given it is entirely too late and there is no reason to extend the time limit.

Presentation of Complaint

The final submission is that the complaint is not properly presented to the Commission, the form was received on the 3rd of October and the ES1 form was not submitted until the 25th of November, postdating the issuing of the complaint contrary to s21 of the ES ACT. For this reason, the Commission has no jurisdiction in the matter.

Final Preliminary Note Regarding “Appeal”

Of final note, and arising the day previously, the Complainant refers to the hearing as an appeal and the Respondent wishes to highlight that this is not an appeal of any matter related to her employment such as failing probation, that said the Respondent was not clear on what was meant by the reference to this.

In response the Preliminary Submissions the Complainant was invited to make responses as follows:

The Complainant rejected that the matter was frivolous and vexatious, and it was not an abuse of process. It is the Complainant case that the previous complaint was not heard and not adjudicated upon, and it does not contradict the rule in Henderson. The previous complaint was withdrawn and this is accepted, but the Complainant argues this does not bar them from bringing the complaint again given it was not decided upon.

The Complainant has tried repeatedly tried to find a role in the public service and has been unsuccessful. The intention to ask questions is not malicious but an opportunity to seek answers as to how she was treated during her employment.

On the matter of the statute bar, the Complainant set out that the complaint submitted the first time was through the union, and the union was more than willing to take on the issue, but as the date approached the union came off record. This was the first attempt. The second attempt was through a solicitor which was a similar series of events where the Solicitor informed that they changed their mind the day before the hearing and this meant the matter was outside the Complainant control.

Regarding the ES1 form the Complainant was told by the WRC that she could do it in the manner she did. She is not a Lawyer and only followed the directions of the WRC staff.

Prima Facie Case of the Complainant

Having heard the preliminary submissions response, the Complainant was invited to address the prima facie case.

The Complainant referred to the submission, or narrative, supplied the day before which refers to the union submission on an internal appeal against a decision to recommend that she be not confirmed in post.  Having commenced her employment in April 2023 her local manager failed to allow her time under the process to acquit herself and their internal processes were not followed, and her 51 days sick leave were as the result of treatment by a previous line manager and left her subject to panic attacks and this was used against her. It is their case that the disciplinary process for which she received no sanction was used against her in deciding to fail her probation. It is the Complainant contention that processes were not followed.

This has been something of a confusing and difficult case given the previous complaints and where in the present matter the Complainant was not represented legally. However, She did have the benefit of her son to make her case which he did so ably in the circumstances that he found himself. It is to his credit he put forward the best possible case in a respectful manner to the hearing.

Having adjourned the hearing to consider the preliminary matters and the prima facie case put forward by the Complainant, I explained that I would consider the case either on the merits of those or, if satisfied there was as case to answer, readjourn.  I have considered the arguments put forward by both parties and have decided to issue my decision without readjourning given the weight of those submissions.

I shall deal with the preliminary matters first before addressing the prima facie case.

Incorrect Legislation

In the first preliminary matter the Respondent has set out that the case has been brought under the wrong legislation in this case the Equal Status Acts rather than the Employment Equality Acts; given it concerns her employment relationship. Having considered the matter I am bound agree with the Respondent that the complaint is flawed and misconceived. For this reason, I have no jurisdiction on the matter.

Mirroring of Previously Withdrawn Complaint

In the second preliminary matter, the Respondent sets out that the complaint submitted that the complaint is frivolous and vexatious. That the Complainant previously made a complaint against the Respondent with the benefit of professional representation and this was later withdrawn on legal advice.

There is little to distinguish this complaint from the previous and I am bound to agree with the Respondent in the circumstances set out. Henderson v Henderson (1843) is cited in this regard, which is case law on the misuse of process, amongst other matters. The rule is settled law and sets out a party must bring forward their whole case in the initial proceedings. If they fail to do so—whether through negligence, inadvertence, or even accident—they cannot later raise claims or arguments in subsequent proceedings that could and should have been raised earlier.

To allow this would be essentially giving every Complainant and inordinate number of opportunities to pursue matter. This would be highly prejudicial to the Respondent, increasing the costs that the Respondent would have to bear in continually defending the same issue, none of which are recoverable in the WRC.  

Frivolous and Vexatious

In terms of the case being frivolous and vexatious, these are legal terms of art, and the Respondent helpfully sets out the meaning in simpler terms from Nowak v Data Protection Commissioner [2012] IEHC 449, and I have underlined the important element for the understanding of the Complainant:

“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 raise this to explain for the benefit of the Complainant that this is correct legal interpretation and does not take away from the Complainant experience. It does not mean that she is not acting in good faith or that her experience is immaterial. However, it does mean that the case has no legal merit, especially at this advanced stage; that it might possibly have had at the time of withdrawal, which is not to say it would have succeeded at that time either.

Abuse of Process

The Respondent refers to the rule in Henderson and the Complainant position was that there was no adjudication as the Complainant withdrew the complaint on legal advice. However, as set out above, the law does not present an unlimited number of opportunities to pursue the same matter. Similarly, the withdrawal of the union and a further withdrawal of a solicitor at the last moment is a matter between the Complainant and those other people; it can’t be used to further this complaint.

Interrogation

A degree of consideration should be given to language here, it is entirely true that it is not the function of the Commission to allow anyone to be interrogated, an overly harsh phrase,  and I am taking the view that this is not the intention of the Complainant, rather that something has been lost in translation and she wished to understand the reasons for her not being considered for permanency where she is of the view that she was an exemplary employee. Again, the complaint here is one of discrimination and not an appeal of the decision.

Statute Bar

The matter is outside the time limit for bringing the complaint by a considerable margin. It is only in the most exceptional cases does an Adjudicator have the discretion to extend the time and this case is almost five months past the deadline and there has been no reasonable cause presented to me other than delay caused by third parties. The Complainant set out that they lodged the complaint the first time through a union the head of which was more than willing to take on the issue but as the date approached the union came off-record; this was the first attempt. The second attempt was through a solicitor which was a similar story where the Solicitor informed that they changed their mind the day before the hearing and this meant the matter was outside the Complainant control.

As explained above this is not for the Respondent to answer and is a matter between the Complainant and those other people and it can’t be used to further this complaint. Given the time delay and the lack of reasonable cause I find that I have no jurisdiction in this matter. Whilst it goes some way to explaining the delay it does not go anyway to excusing the delay. The Labour Court in Skanska v Carroll (DWT0425) set out the test for reasonable cause and in Galway & Roscommon ETB Kenny (UDD1624) the Court found that a submission one day late due to a misunderstanding of the time limits by the legal representative was enough to statute bar that complaint. There are numerous examples in the case law of cases being barred by being only one day late and where the case is several months late the bar is even higher.

Having considered the above, the complaint is statute barred, and I have no jurisdiction to hear the complaint.

Presentation of Complaint

It is true that the complaint has not been properly presented, and this need not necessarily be fatal if it were the only flaw in the argument. The Complainant set out that they followed instructions of the WRC staff and was told that this was acceptable. However, no evidence was put forward on this and I can only treat it as an assertion. Regardless, the Complainant is legally responsible for her own case and must ensure that they properly presented regardless of advice they may have followed. Given that I have found that I have no jurisdiction on several other grounds, I will not consider this matter further.

Final Preliminary Note Regarding “Appeal” and Prima Facie

I think it important to address this matter as part of my decision and combine the two issues. The Respondent was caught by surprise on the matter and correctly wished to address it for the sake of full understanding that the case before the Commission is one of discrimination under the Equal Status Act and not an appeal against the decision of the Respondent. When asked to make their prima facie case under the act the Complainant has failed to adduce anything to demonstrate this and appears to wish to use the hearing as an opportunity to “appeal” that decision. There is nothing in this that was relevant in the complaint made to the WRC and there is no comparator provided. For this reason, I have decided the Prima Facie case is not made out and the burden has not shifted. The Complainant has not named a comparator and has not met the prima facie case to shift the burden of proof to the Respondent. For this reason, I cannot find the complaint well-founded.

Conclusion

Having considered all of the above  matters I find that I do not find the complaint well founded.

For the reasons outlined above I have decided that this complaint is not well founded.