Complainant

Respondent

Parties

Sivasundarasan  Periasamy

Microchip Technology Ireland Ltd

Representatives

In person.

Tiernan Lowey BL instructed by Katherine Bridge solicitor, Ogletree Deakins International LLP

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00060428-001

07/12/2023

The complainant was employed by the respondent from 16th May 2004 to 31st January 2018. The complainant was employed as a Principal Engineer.

This complaint was received by the Workplace Relations Commission on 07/12/2023.

The complainant received a Grievance Complaint Investigation Report on 29th June 2023. The complainant then filed his second complaint to the Workplace Relations Commission on 7th December 2023, some 5+ months after receiving the Grievance Complaint Investigation Report.

The complaint specific details ( as filed by the complainant) are as follows:

Complaint on discrimination in terms of hiring new engineers, financial compensation, and barriers to career progression for non-ethnic Irish staff like me by the Manager, Mr Tony O'Byrne, at the Dublin office. I had also made allegations of harassment and bullying. The intensity of bullying increased due to Mr. O'Byrne's deep crush on a female employee reporting to me. The previous HR Manager had instituted disciplinary proceedings against Mr O'Byrne for professional misconduct related to this female employee. However, his superior, Mr Jake McKernan, based in the USA, protected him. Natalie Hill, HR Officer in the UK, had previously refused to provide this Grievance Investigation report to me. However, I received a copy of the investigation report on my Grievance Complaint from Ms Lorraine McGhie- HR Director, on 29 June 2023. The investigation report confirms racial discrimination, bullying, harassment, and victimisation. The report reflects the bias and mobbing incited by the Insidious Workplace Behavioural (IWB) campaign concocted by Mr Tony O'Byrne for many years against me (a naturalised Irish Citizen), to ensure Mr Fergus O'Kane, (an ethnic Irish), as his successor after he retires, contrary to the meritocracy provisions. The HR department based in the UK/USA, influenced by Mr Jake McKernan(USA), refused to provide this investigation report to me previously. The report I received on 29 June 2023, in conjunction with credible evidence available to HR, shows discernible evidence of institutional right-wing race ideology, (with the exception to attractive women), in the Dublin Office. The report I received on 29 June 2023, shows HR-Ms. Natalie Hill’s deep prejudice against me as result of the IWB, mobbing and support for the discrimination, and retribution for filing the grievance complaint.

As per his submission the complainant states the following:

Statutory Time Limits.

a.      The complainant acknowledges the Respondent’s argument on the statutory time limit. But their argument is related to section 7 of the Unfair Dismissals Act 1977 which has been concluded and has no relation to the current case.

b.      The complainant on his part is sincere and honest, and the respondent tried to confound the WRC.

                                               I.          The complaint is adjudication pursuant to section 77 of the Employment Equality Act , 1998.

                                              II.          The complainant filed a grievous complaint on bullying, discrimination and harassment to the management committee while he was an employee of the respondent.

                                            III.          Subsequently, the complainant was dismissed on 31st January 2018 by the same management committee of the respondent without proper application of Irish labour law principles.

                                            IV.          The respondent time and again refused to provide a copy of the investigation report for almost 5 years and at length furnished the same on 29th June 2023.

c.      That, the alleged contentions by the Respondent in his submission are frivolous and are made in bad faith , with an intention of misguiding the WRC. Furthermore, it  is an evident fact that the Respondent was in possession of the investigation report of the complaint made by the complainant regarding bullying , discrimination and harassment. Moreover, the respondent refused to deliver a copy of the same despite making several applications for almost 5 years.

Respondent’s Case Law and Rebuttal

Respondent’s Arguments.

The Respondent’s have tried to confound WRC by mixing up Section 7 of the Unfair Dismissals Act and section 77 of the Employment Equality Acts.

Legal Rebuttal of case laws.

a)      The case law O’Meara v DHG Eden Limited t/a Clayton Hotel ( ADJ – 00030707) is not applicable as it was a straightforward case of non-compliance to the 6-month limit as per WRC rules.

b)     Supreme Court case Farley v Ireland  Others, Fay v Tegral Pipes Ltd & Other , Nowak v Data Protection Commissioner [2013] and other case laws quoted by the Respondent – are not relevant as the Respondent  has not shown parallel instances of similarity to this case. The Respondent has used the words “vexatious”, frivolous liberally. But has not provided supporting case points.

c)      The Respondent has not provided any substantive argument supporting their case that the new evidence available to the complainant on 29th June 2023, should not be applicable under the Employment Equality Acts.

d)     The Respondent’s case laws do not apply and are insufficient to dismiss the complaint.

By letter dated 16th April 2024 the respondent’s representative has stated the following:

We respectfully submit that the Complainant’s complaint is made either in bad faith or is misconceived. Further, or in the alternative , we believe the complaint is frivolous and/or vexatious. We are therefore writing to you seeking a dismissal of the proceedings pursuant to the powers provided to you under section 77A of the EEAS.

Briefly, by way of factual background:

·        The complainant was employed by the respondent from 16th May 2004 to 31st January 2018.

·        On 31st January 2018, he was dismissed on performance and conduct grounds.

·        By WRC complaint form dated 9TH May 2018 , the complainant took a claim pursuant to the Unfair Dismissals Acts 1977 -2015 (“the first WRC complaint”).

·        The first WRC complaint was heard by an Adjudication Officer over the course of three days: 12th September 2018, 9th and 10th April 2019.

·        A Decision issued on 16th January 2020 (ADJ – 00014628; CA – 00019057 – 001) in which the Adjudication Officer upheld the complainant’s unfair dismissal claim.

·        By notice of appeal dated 21st February 2020, the complainant appealed the said Decision, which appeal was fully resisted by the Respondent, both on liability and quantum.

·        The appeal was heard by the Labour Court over the course of two days: 27th May 2021 and 10th November 2021.

·        By a Determination dated 20th December 2021 (UD/20/42), the Labour Court overturned THE Adjudication Officer’s original Decision and found that the Complainant’s dismissal was fair.

·        By WRC complaint form dated 7th December 2023, the complainant has now taken a claim pursuant to the EEAs (“the second WRC complaint”).

·        By letter dated 12th March 2024, the WRC notified the Respondent that the said equality claim was listed for hearing on 26th April 2024.

·        By letter date 22nd March 2024, the WRC  advised THE Respondent that the hearing had been postponed. As of the date hereof, the Respondent has not been notified of any new hearing date.

The complainant failed in his initial unfair dismissal claim. He now seeks to prosecute  a discrimination claim against the Respondent on gender and race grounds in the context of promotion, victimisation and harassment. This latest complaint comes two years after the Labour Court’s Determination issued. It comes five years since his employment with the Respondent ceased. No application is made by the complainant for an extension of time pursuant to section 77(5)(b) of the EEAs, which application would, in any event , be futile.

The complainant is either choosing to ignore the applicable time limits, is seeking to circumvent them or fails to appreciate their significance. A considerable period of time has passed and the Complainant’s complaint form fails to disclose any arguable cause of action and/or the claim is entirely unfounded. Based on the forgoing , the complaint is made in bad faith or is wholly misconceived.

Section 77A of the EEAs was considered by the Labour Court in Department of Defence v Barrett EET081 where the decision of the Equality Officer, that the claim was “misconceived” was upheld. More recently in O’Meara v DHG Eden Limited t/a Clayton Hotel (ADJ – 00030707, August 2nd 2021), the Adjudication Officer dismissed a complaint where the employment had ceased more than 12 months before the complaint was lodged. In that case, the complainant had argued that the most recent date of discrimination occurred some 9 months after the employment had ended. [It is noted that Mr Periasamy claims the most recent date of discrimination occurred on 29th June 2023, 4.5 years since his employment ceased]. In dismissing the claim, the Adjudication Officer said:

“I accept that [the complainant] carries a large burden of unresolved issues from a previous employment. I note that she did not bring those matters forward to the WRC during or in the immediate aftermath of her employment or at least within the statutory time limits permitted.

However, the circumstances of the trigger events in this case […] cannot be identified objectively as forming a causal connection or a call back to a historical employment relationship , which ceased more than a year prior to this claim. The issue, about curtailed access to a pool, may be a matter of private law between the parties.

Section 77(A)(1) of the Act provides that the Director General of the WRC  may dismiss a claim at any stage if of the opinion that it is made in bad faith or is frivolous, vexatious or misconceived or relates to a trivial matter.

I have found that the complainant’s unusually intense personalised rebuke of her former employer, detailed in the email dated 14th February 2020, displayed a fundamental misunderstanding of the elasticity and application of statutory time limits in the employment equality legislation and I have not identified an arguable case for action.

The case has no reasonable chance of success and on those grounds , I dismiss this case”

Further, or in the alternative, the complaint is frivolous  and / or vexatious. In Farley v Ireland & Others [1997] IESC 60 the Supreme Court stated as follows:

“So far as the legality of the matter is concerned frivolous and vexatious are legal terms, they are not pejorative in any sense […] 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 is frivolous to bring the case. Similarly, it is a hardship on the defendant to have to take steps to defend which cannot succeed and the law calls this vexatious”.

These principles were subsequently reiterated by the Supreme Court in Fay v Tegral Pipes Limited & Other  [2005]2IR 261. It has been held that a claim is misconceived if it is incorrectly based in law (See Keane v Minister for Justice [1994] 3 IR 347). The concept of vexatiousness overlaps to some extent with “frivolous” in the sense that the latter has been interpreted primarily as “unsustainable” by the Superior Courts in this jurisdiction.

In Nowak v Data Protection Commissioner [2013] 1 ILRM 207 at 216, Birmingham J said that the word frivolous, in a context such as this, meant that a complaint that was “futile” or “hopeless” in the sense that it was incapable of achieving the desired outcome. Birmingham J elaborated on this subject on O’N V McD [2013]IEHC 135 saying the words “frivolous” and “vexatious” were “terms of art” and merely mean that the plaintiff had no reasonable chance of succeeding. Where there is no reasonable chance of success, it is thus frivolous to bring the case. It also imposes a hardship on the defendant if it has to expend time , effort and money  in defending an action which cannot succeed and thus was regarded by the courts as vexatious.

In Giblin v Bank of Ireland DEC-E2001 – 161, THE Equality Tribunal dismissed a claim brought 3.5 years after termination of employment on the grounds that it had no realistic chance of succeeding and was thus considered to be “frivolous and vexatious”. In Mac Namara and Ors v Trustees of ESB DB Pension Scheme DEC – P2014 – 002, the former Equality Tribunal exercised its power pursuant to section 77A on the grounds that the complainants had failed to refer their claims within the maximum 12 months from the date of termination of their employment. The Equality Officer said:

“I therefore find that the complainants have no prospect of succeeding in their claims and I dismiss them as frivolous and vexatious […]”

In that case, the Tribunal also expressed the view that any decision to accept jurisdiction of the claims and so depart from the application of the statutory time limits would be ultra vires itsauthority.

The WRC and the role of the Adjudication Officers is established under statute by the Oireachtas. They must have regard to legal and constitutional heights in exercising its limited jurisdiction but cannot assume extra legal authority in Brannigan v the Equality Tribunal and County Louth VEC  [2016] IESC 40 McKechnie J stated:

“It is both a trite and historical principle of law that a creature of statute must live by the statute. Its jurisdiction is found solely within the provisions of the enabling Act. It has no inherent capacity, unlike say, say, that of a constitutional court. It is therefore bound by what has been conferred on it. It has no further competence and it cannot create , add to or enlarge the jurisdiction so vested in it.”

Statutory time periods impose temporal limitations on the bringing of proceedings. They bring closure for old grievances. In his ‘Limitation of Actions’ (3rd ed, 2022), Canny addresses the necessity for statutory limitation periods, as follows:

“There is a self-evident need for temporal limitations on the institution of proceedings. With the passage of time recollections fade, witnesses pass away, records are lost, insurance policies lapse and people move on in their lives.”

The purpose and need for limitation provisions are usefully summed up by Lord Sumption in Birmingham City Council v Abdulla [2013] 1 All E.R. 649, a case which came before the UK Supreme Court, as follows:

“Limitation reflects a fundamental and all but universal legal policy that the litigation of stale claims is potentially a significant injustice. Delay impoverishes the evidence available to determine the claim, prolongs uncertainty, impedes the definitive settlement of the parties’ mutual affairs and consumes scarce judicial resources in dealing with claims that should have been brought long ago or not at all.” ([2013] 1 All E.R. 649 at para .41.)

The Respondent submits that in permitting the Complainant’s claim to proceed, violence would be done to the clear and unambiguous intention of the legislature in establishing statutory time limits. It would also amount to grave injustice to the Respondent who, like any party in litigation is entitled to certainty in the law.

The underlying facts of this claim for discriminatory dismissal, and the facts of the previously adjudicated claim under the UDA, are the same, except for one: there was an internal investigation into the complainant conducted prior to his dismissal, the report on which, the complainant maintains, was withheld. Said report was released after the conclusion of his WRC/LC proceedings, and it, in the opinion of the complainant,  cleared him of all charges, so to speak. The Applicant has brought this new claim in respect of the same dismissal under the EEA, relying on s.77(6):

"(6) Where a delay by a complainant in referring a case under this section is due to any misrepresentation by the respondent, subsection (5)(a) shall be construed as if the references to the date of occurrence of the discrimination or victimisation were references to the date on which the misrepresentation came to the complainant’s notice."

The question being whether the withholding of the report amounts to misrepresentation within the meaning of s.77(6).

Bolger, Bruton and Kimber say the following in respect of s.77(6), at 16-102:

"Section 77(6) of the Employment Equality Acts provides that where a delay on the part of the claimant to refer a complaint to the Workplace Relations Commission is due to misrepresentation on the part of the employer, the time for the purposes of s.77(5) starts to run from the date on which the employee became aware of the misrepresentation. This would require an employer to make some false representation to an employee concerning a material fact or particular affecting a cause of action under the Employment Equality Acts, or to fail to disclose documentation it was under a legal obligation to disclose, which misrepresentation was relied upon by the employee. The misrepresentation must be sufficient as to cause the delay on the part of the employee in referring his or her complaint. An example of the actions of an employer which were sufficient to amount to misrepresentation within the meaning of s.77(6), was the incorrect inclusion in an annual review of a reference to the claimant being promoted, as the employee was provided with a false or wrong impression of the situation at the time."

It seems to be their understanding that withheld documentation can constitute misrepresentation. I note that, in the decisions cited in the above paragraph (EDA104, EDA0923, EDA1027), the “misrepresentations” at issue seem to be acts (making false/inaccurate statements) rather than omissions (failing to disclose information). In the instant case as the AO deciding the matter I have to look at the following:

(I)               whether the report was indeed withheld.

(II)              whether there was a legal obligation to release the report; and

(III)            whether the findings of the report were indeed relevant to the Applicant’s dismissal.

First and foremost, however, I have to consider if there is causation between the release of the report or lack thereof and the delay in referring the case.

However, I think a different issue arises under s.101(4) EEA, which provides:

"An employee who has been dismissed shall not be entitled to seek redress under this Part in respect of the dismissal if—

…

(b) an adjudication officer has made a decision to which subsection (1) of section 8 of the Unfair Dismissals Act 1977 applies in respect of the dismissal."

Bolger, Bruton, & Kimber say the following at 16-139:

"Section 101(4) provides that an employee who has been dismissed cannot seek redress under Pt VII of the Employment Equality Acts if the employee has instituted proceedings at common law for wrongful dismissal and the hearing of the case has begun, or if an adjudication officer has made a decision to which s.8(1) of the Unfair Dismissals Acts applies."

There is no mention of how misrepresentation may factor into such a case, if at all. On the face of s.101(4), the Applicant’s complaint is barred, as another AO (and subsequently the Labour Court) has made a decision in respect of his dismissal under the Unfair Dismissals Act.

As presented, the complaint, in light of s.101(4) of the Employment Equality Act, 1998 must fail.

As presented, the complaint, in light of s.101(4) of the Employment Equality Act, 1998 must fail.

Employment Equality Act, 1998.