Complainant

Respondent

Parties

Richard  Bourke

Kilkenny County Council

Representatives

Shonagh Byrne, SIPTU

Keith Irvine, Local Government Management Agency (LGMA)

Act

Complaint Reference No.

Date of Receipt

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

CA-00055885-001

03/04/2023

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

CA-00060122-001

20/11/2023

The Complainant did not attend the hearing on 14 April 2026 to give evidence in relation to his complaints. 

A medical certificate, dated 7 April 2026, was forward to the WRC by email after close of business on 7 April 2026 with a note stating: “please see attached”.  The medical certificate was submitted without a completed postponement application.   

Within the medical certificate, the Complainant’s doctor opined that the Complainant was unfit to participate in the hearing due to a (named) medical condition which is exasperated when the WRC complaints are “pending or mentioned”. 

The Complainant’s representative did not attend the hearing to make an application for an adjournment on the Complainant’s behalf.

The Respondent was present at the hearing on 14 April 2026 and was ready to proceed. 

Mr Irvine outlined that the Respondent objects to any further adjournments and requested that the hearing proceed in the absence of the Complainant or that the complaint be dismissed.  He noted the Complainant had been granted five postponements and one adjournment to date, and that the complaint had not been progressed in three years.  He outlined that the WRC issued a hearing notice in January 2026, yet a medical certificate had only been furnished by the Complainant a few days before the hearing, despite the continuing nature of the Complainant’s medical condition.  This, he stated, was unacceptable and an abuse of process. 

Procedural history of the complaints:

I note these complaints, made under the Protected Disclosures Act 2014 (as amended), were presented to the WRC on 3 April 2023 (CA-00055885-001) and 20 November 2023 (CA-00060122-001).  Several hearing dates were subsequently listed by the WRC.  Postponements were sought by the Complainant and granted by the WRC on five occasions.  The Complainant was notified at the time of the granting of the fifth postponement that any further requests for a postponement could only be made to the Adjudication Officer with seisin of the complaint at a hearing into the complaint (i.e., an application for an adjournment). 

The complaints were subsequently listed for hearing on 6 November 2025.  The Complainant forwarded a medical certificate to the WRC on 23 October 2025 certifying him as unfit to take part in any case or hearing related to him until further notice.  The Complainant was advised that an application for an adjournment would have to be made by him or on his behalf before the Adjudication Officer at the hearing on 6 November 2025.

In attendance for the Respondent at the hearing on 6 November 2025 was Mr Keith Irvine, LGMA; Ms M Phelan, HR Manager; and Ms A Candy, HR.  In attendance for the Complainant was Ms Shonagh Byrne, SIPTU.  The Complainant did not attend the hearing.  Ms Byrne sought an adjournment on the basis that the Complainant was medically certified as unfit to attend the hearing. 

At the hearing on that date I noted:

(i)                  the complaints were presented to the WRC on 3 April 2023 (CA-00055885-001) and 20 November 2023 (CA-00060122-001);

(ii)                 the Complainant had already been granted five postponements to date;

(iii)               notice of the hearing had issued to the Complainant on 4 September 2025 yet no attempt had been made to avail of Postponement Process 1;

(iv)               a medical certificate had been forwarded to the WRC by the Complainant on 23 October 2025 without a completed postponement application;

(v)                 the medical certificate was lacking sufficient detail; and

(vi)               it is for the person who seeks an adjournment to provide sufficiently detailed reason/s for that adjournment.

In response, Ms Byrne explained that the Complainant had forwarded the medical certificate directly to the WRC and that this was the reason the WRC Postponement Guidelines had not been followed.  Ms Byrne accepted that the medical certificate gave no indication as to when the Complainant may be medically fit to pursue his complaints before the WRC.  I informed Ms Byrne that this information may be sought by the WRC. 

Ms Byrne’s attention was also drawn to the lack of a written submission in relation to the complaints.  I noted that the Respondent’s written submission was presented to the WRC and copied to the Complainant on 2 July 2024.  Ms Byrne acknowledged that a written submission in relation to the complaints had not yet been forwarded to the WRC as she has been unable to prepare same due to the Complainant’s medical condition. 

Mr Irvine made an application to have the complaints dismissed for want of prosecution.  He outlined that the Complainant was at work and fully fit to engage in his work.  Ms Byrne strongly objected to the application to have the complaints dismissed outlining that while an employee may be fit to engage in work, they may not be fit to engage in a stressful hearing to progress a complaint.

The hearing was adjourned pending further directions from me.  On 3 December 2025, I wrote to the parties setting out the procedural history of the complaint to date.  I advised the parties that I had no jurisdiction to dismiss a complaint for want of prosecution.  My correspondence outlined that the WRC must give due consideration to the rights and interests of all parties, and it must attempt to balance those rights and interests.  I explained that the WRC requires more information than has been furnished by the Complainant to enable it to carry out that task properly.  I acknowledged that a medical doctor may not be able to give an absolute guarantee as to the timeframe within which any medical problem may sufficiently resolve, but a realistic indication of when the Complainant may be fit to participate in the hearing into his complaints is an important part of the analysis.  Moreover, the fact that the Complainant may have a medical condition preventing participation in a hearing does not necessarily mean that he is unable to provide the WRC with a written submission in relation to his complaints.  My correspondence also directed the parties to dicta (outlined in the correspondence) of Humphreys J. in Smith v. Considine and KBC Bank Ireland Plc [2017] IEHC 22.  The parties were also advised that it is for the party who seeks an adjournment to provide sufficiently detailed reason/s for that adjournment.  The correspondence concluded with a direction to the Complainant to furnish a medical report on or before 19 December 2025.  The Complainant was advised that the medical report must contain the following:

1.       Identify the medical professional and outline their contact details.

2.       State the medical professional’s familiarity with the Complainant’s medical condition and whether they are treating the Complainant.

3.       Identify the Complainant’s medical condition/s based upon a proper examination.

4.       State if the medical practitioner is of the opinion that the Complainant remains medically unfit to participate in a hearing and outline the features of that condition which prevents participation in the hearing into his complaints.

5.       Outline when the Complainant may be able to attend the WRC given his condition and the prognosis thereof.

6.       Identify whether the Complainant is medically fit to make written submission/s and/or to participate in a remote hearing of the complaints.

7.       Outline any reasonable measures which the WRC can adopt which meet both the reasonable health requirements of the Complainant but also the timely resolution of the complaints (i.e., any reasonable accommodation that might reduce the Complainant’s symptoms and facilitate his attendance at a hearing to progress his complaints).

The Complainant was also requested to indicate whether he has any objection to all or part of that medical report being provided to the Respondent and, if so, the basis of his objection. The parties were advised that the hearing into the complaints stood adjourned to allow the Complainant an opportunity to comply with the direction outlined above.

The Complainant did not comply with this direction.  Accordingly, the complaints were relisted for hearing on 14 April 2026. 

In advance of that date, the Complainant again submitted a medical certificate to the WRC without a completed postponement application form.  This medical certificate was received days prior to the hearing despite the Complainant being on notice of the hearing since 28 January 2026.  Moreover, the medical certificate provided was again lacking in sufficient detail to enable me to assess whether the hearing of these complaints should be adjourned. 

The Respondent was present at the hearing on 14 April 2026 and was ready to proceed.  The Complainant and his representative did not attend the hearing.  I noted that no formal application for a postponement or adjournment had been received, other than a medical certificate outlining that the Complainant was unfit to participate in a hearing into his complaints.  I also informed the Respondent that Ms Byrne would not be attending the hearing on this occasion to make an application for an adjournment on the Complainant’s behalf.  I informed the Respondent that it was open to the WRC to either adjourn the hearing to an alternative date or regard the Complainant’s non-attendance at the hearing as a failure to advance his complaints. 

Mr Irvine submitted that the Respondent witnesses were once again in attendance and ready to defend the complaints.  He strongly objected to any further adjournment.  He noted that the Complainant had been granted five postponements and one adjournment to date, and that the complaint had not been progressed in three years.  He outlined that the WRC issued a hearing notice in January 2026, yet a medical certificate had only been furnished by the Complainant a few days before the hearing, despite the continuing nature of the Complainant’s medical condition.  This, he stated, was unacceptable and an abuse of process. 

The hearing was closed to allow me time to consider the matter and decide whether a decision or further directions should issue.

Decision

As noted in the WRC Postponement Guidelines, the WRC considers all applications for postponements and or adjournments carefully with due regard to the rights of the parties to fair procedures and reasonable expedition in having a scheduled complaint heard.  Applications are considered in the context of a test of “exceptional circumstances and substantial reasons”.   

I note the complaints are before the WRC since April 2023, and the Complainant has already had the benefit of five postponements and one adjournment.  Although the Complainant did not submit a formal application for a postponement or adjournment, he forwarded a medical certificate to the WRC a few days before the hearing on 14 April 2026 stating that he was unfit to attend.

Having reviewed that medical certificate, I find the medical certificate lacks sufficient detail.  Again, no indication is given in the medical certificate as to when the Complainant may be able to attend the WRC to advance his complaints, despite the WRC specifically requesting this information following a previous application for an adjournment.  This information is important where multiple postponements and adjournments are sought and particularly given the stated reason for the Complainant’s inability to attend hearings.  The Complainant was also invited in December 2025 to propose accommodations which might facilitate his attendance.  He did not respond to this invitation.

There must be some reasonable prospect that the Complainant will be able to attend an adjourned hearing within a reasonable timeframe.  No medical opinion was furnished, despite the Complainant having been given a reasonable opportunity to provide same, to support a finding that there is a reasonable prospect of his attending an adjourned hearing within a reasonable timeframe.  I am minded that the requirement for fairness must apply to both parties.  I am satisfied that justice would not be served by granting a further adjournment.  I am satisfied, given the procedural history of these complaints to date, a further delay would be contrary to the Respondent’s right to a fair and expeditious hearing and the determination of the complaints in a reasonable timeframe. 

It is for the person who seeks the adjournment to proffer sufficient, and sufficiently evidenced reason for that adjournment.  In the absence of sufficiently detailed medical certificates/reports in this case, I am not satisfied that exceptional circumstances and substantial reasons exist to grant a further adjournment of the hearing into these complaints. 

Accordingly, as the Complainant did not attend the hearing on 14 April 2026 to give evidence in relation to his complaints, I find the complaints are not well founded.   

CA-00055885-001

I decide this complaint under the Protected Disclosures Act, 2014 (as amended) is not well founded.

CA-00060122-001

I decide this complaint under the Protected Disclosures Act, 2014 (as amended) is not well founded.

Postponement. Adjournment.