EDA2649

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No.: ADJ-00053414 (CA-00065405-001)

BACKGROUND:

The Employee appealed the decision of the Adjudication Officer under Section 83 (1), Employment Equality Acts, 1998 to 2021 on 15 May 2025. A Labour Court hearing took place on 1 July 2026.

The following is the Determination of the Court:

DETERMINATION:

1. Appeal Details

This is an appeal by Mr Pierce Parker against a Decision of an Adjudication Officer (ADJ-00053414/CA-00065405-001) made under the Employment Equality Acts 1998 to 2021 (the Acts) in a complaint against University College Dublin. The complaint was submitted to the Workplace Relations Commission (WRC) on 14 August 2024. The Adjudication Officer, in a decision dated 14 May 2025, dismissed the complaint on the basis that it was vexatious.

For ease, the parties are referred to in the same way as at first instance, so Mr Pierce is referred to as “the Complainant” and University College Dublin (UCD) as “the Respondent”.

A hearing of the Court was held on 1 July 2026 in Dublin. The Complainant was unaccompanied at the hearing. The Respondent was represented by Mr Barra Faughnan BL, instructed by Mason Hayes & Curran LLP. The Court heard submissions from both parties, and the Complainant gave evidence under oath having been sworn in at the commencement of the hearing. The Respondent called no witnesses.

Written submissions were provided to the Court in advance of the hearing date. The Complainant made initial submissions, together with a “Book of Evidence” on 9 June 2025, and “Point of Law” submissions on 2 July 2025. The Respondent made submissions on 31 July 2025, to which the Complainant provided a rebuttal on 12 August 2025. The Complainant made additional submissions “regarding comparator occupation of UCD premises” on 8 April 2026.

On the appeal form, submitted to the Labour Court on 15 May 2025, the Complainant identified the Respondent as Ms Ella Mikkonen and did likewise on all his submissions to the Court in respect of the within appeal. The Court notes that, in the original complaint form submitted to the WRC, UCD (and not EM) is named as the Respondent. Ms Mikkonen is an employee of UCD and is not named as a respondent in the decision of the Adjudication Officer under appeal. The decision under appeal names UCD as the sole Respondent and the Court’s jurisdiction is limited to the appeal of that decision.

2. Summary Position and Evidence of the Complainant

The Complainant attended UCD as a student from 2014 to 2021 and was awarded a Doctor in Philosophy in Applied Social Science in December 2021. He described himself as Chinese, male, single, an immigrant and a person of colour. On 9 August 2024 the Complainant says he was invited to interview, on 16 August 2024, for a post as a post-doctoral research fellow level 1 in the UCD school of biology. This interview was cancelled on 15 August 2024 by Ms Mikkonen “on the account of my protected status”. The Complainant said Ms Mikkonen cited a life-time ban letter of 31 May 2022 as the pretext for the arbitrary cancellation of the interview. The Complainant said that the “arbitrary ban existed precisely because I am not a white person” and that if he had been a white person the ban would not exist. The Complainant argues that the life-time ban, and its subsequent use to deny him access to an employment opportunity, was tainted by unlawful discrimination.

The Complainant said that the arbitrary cancellation of his interview on 15 August 2024 was an “egregious instance” of the Respondent’s “racially-discriminatory regime” designed to prevent “a Chinese male person from securing rightful employment” where he maintained that his ban from the UCD campus was “disproportionate, procedurally unfair, and rooted in racialised assumptions”. The Complainant argued that such a ban would not have been imposed on someone who was not male and Chinese.

The Complainant identified that prior to the cancellation of the interview he had submitted a request for reasonable accommodation for his disability under section 16(3)(a) and (b) of the Acts, which disability he cited as “not being a white person”. The Complainant said the refusal (communicated on 14 August 2024) was “in effect, a barrier to fair and equitable access which disproportionately impacts those who are unable to physically access the UCD campus – whether due to physical, social, racial or systemic exclusions”. The Complainant contended that the “indefinite, blanket ban imposed on 31 May 2022 was racially motivated and disproportionate” and the effect of this “racial ban” mirrors the impact of physical disability, and that denying reasonable accommodation in that context functioned as indirect discrimination.

The Complainant considered the core issue in the appeal was whether the decision to exclude him from consideration for the advertised research position, via enforcement of a lifetime campus ban, amounts to unlawful discrimination on grounds of race, gender and civil status in breach of the Acts. The Complainant denies that he has brought repeated or frivolous claims, claiming that this is a single, well-grounded appeal against a discriminatory exclusion from a job opportunity due to a disproportionate and indefinite ban which has never been subject to a transparent or fair disciplinary process. He maintains that the ongoing exclusion amounts to a continuing discriminatory act and not a once-off event. The Complainant considered that the legality of the ban had never been examined by any court and considers the ban to be the core of the case requiring determination as to whether a lifetime exclusion was lawful and proportionate.

The Complainant submitted comparators who were not subject to lifetime bans despite purportedly living on campus which he said were relevant for the purposes of assessing the proportionality and consistency of the Respondent’s actions towards the Complainant. The information regarding comparators was referenced from newspaper articles provided and included a white male who allegedly informally resided on the campus grounds for 30 years prior to his death. Another was a disabled, female, person of colour from Malawi and the third was a female student union president involved in political protest.

The Complainant submits that the threshold to establish if a complaint is frivolous or vexatious is a high one and is intended to apply only to complaints that are manifestly without merit or that are brought in bad faith. He says that a complaint which raises arguable questions of fact or law which require examination cannot be properly regarded as frivolous and that a complaint cannot be regarded as vexatious merely because it is disputed by the Respondent.

3. Summary Position of the Respondent

The Respondent submitted that the decision of the Adjudication Officer dismissed the claim as being “frivolous and vexatious” and its application was for the Labour Court to exercise the same jurisdiction on appeal to dismiss the claim as “frivolous and vexatious and/or as an abuse of process”. The Respondent described the Complainant as engaging in an extraordinary saga of harassment of the Respondent and its staff by means of making repeated vexatious and unfounded claims of discrimination about the same matters and/or recreating the same circumstances for the purposes of launching further similar claims. The Respondent identified that the Complainant has made 11 separate legal claims against the Respondent and/or its staff, 10 to the WRC and one to the Labour Court, all of which (bar one which did not proceed) had been dismissed, with seven decisions of the WRC by four different adjudication officers dismissing the claims and finding those claims to be frivolous and vexatious and the Labour Court also dismissing a section 20 referral under the Industrial Relations Act 1969. None of the previous decisions had been appealed by the Complainant.

The Respondent set out a detailed historical background to the multiple complaints advanced by the Complainant including where the campus ban was subject to adjudication by the WRC and determined not to have a discriminatory basis (ADJ-00040013 in a complaint against Fiachra Kealey trading as University College Dublin Estate Services under the Equal Status Acts 2000 to 2018; and ADJ-00047856 in a complaint against Gavan Stanley trading as UCD Human Resources under the Employment Equality Acts 1998 to 2021, both decisions of Adjudication Officer Mr David James Murphy issued on 28 November 2024).

The Respondent disputed that the Complainant is a person with a disability, characterising as “nonsense” his assertion, in his email requesting “reasonable accommodation” by the provision of a Zoom interview, which stated “I have a disability which prevents me from attending an in-person interview”. The Respondent considers the Complainant’s assertion that reasonable accommodation applies to other protected characteristics as wholly incorrect in fact and in law but that it is not applicable in any event where the Complainant is not disabled and the reason for the refusal of interviews would subsist regardless of any disability.

While the Respondent accepts that the jurisdiction to dismiss a claim on the basis that it is vexatious is one which should be exercised sparingly it submits that the circumstance of this claim meets the criteria. The Respondent identifies that the within appeal is in respect of claim nine of 11 claims made by the Complainant against the Respondent and/or staff members of the Respondent. It notes that all the other complaints have been dismissed, none of the other complaints have been appealed, and in dismissing all the other cases four separate adjudication officers found the complaints were vexatious in the literal sense in that they were not brought bona fide and the invocation of alleged discrimination was designed to cause difficulty for and/or loss to the Respondent. The Respondent also considered that the within claim/appeal is a replication of the same circumstances and issues raised in an earlier complaint (ADJ-00047856).

4. Relevant Legislation

Section 77A of the Acts provides that: -

“(1) The Director General of the Workplace Relations Commission may dismiss a claim at any stage if of opinion that it has been made in bad faith or is frivolous, vexatious or misconceived or relates to a trivial matter.

(2) (a) Not later than 42 days after the Director General of the Workplace Relations Commission dismisses a claim under this section, the complainant may appeal against the decision to the Labour Court on notice to the Director General of the Workplace Relations Commission specifying the grounds of the appeal.

(b) On the appeal the Labour Court may affirm or quash the decision.”

Section 8 of the Acts provides that:

“(1)  In relation to –

(i) access to employment,

(ii) conditions of employment,

(iii) training or experience for or in relation to employment,

(iv) promotion or re-grading, or

(v) classification of posts,

an employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker.”

Section 6(1) of the Acts provides that: -

'Discrimination shall be taken to occur where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in sub-section 2 (in this Act referred to as the 'discriminatory grounds').'

Section 6(2)(a) provides that: -

'As between any two persons the discriminatory grounds are that one is a woman and the other is a man (in this Act referred to as 'the gender ground').'

Section 6(2)(b) provides that: -

'As between any two persons the discriminatory grounds are that are of different civil status (in this Act referred to as 'the civil status ground').'

Section 6(2)(f) provides that: -

'As between any two persons the discriminatory grounds are that are of different ages (in this Act referred to as 'the age ground').'

Section 6(2)(g) provides that: -

'As between any two persons the discriminatory grounds are that one is a person with a disability and the other is not or is a person with a different disability (in this Act referred to as 'the disability ground').'

Section 6(2)(h) provides that: -

'As between any two persons the discriminatory grounds are that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as 'the ground of race ').'

Section 2 of the Acts addresses issues of interpretation and defines “civil status” as meaning “being single, married, separated, divorced, widowed, in a civil partnership within the meaning of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 or being a former civil partner in a civil partnership that has ended by death or been dissolved”.

Section 2 also sets out that “disability means:

(a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person's body,

(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,

(c) the malfunction, malformation or disfigurement of a part of a person’s body,

(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or

(e) a condition, illness or disease which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour,

and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person”.

Section 16 of the Acts sets out the nature and extent of the employer’s (or prospective employer’s) obligations in respect of persons with a disability. Subsection 3 provides:

“(a) For the purposes of this Act a person who has a disability is fully competent to undertake, and fully capable of undertaking, any duties if the person would be so fully competent and capable on reasonable accommodation (in this subsection referred to as “appropriate measures”) being provided by the person’s employer.

(b) the employer shall take appropriate measures, where needed in a particular case, to enable a person who has a disability –

(i) to have access to employment,

(ii) to participate or advance in employment, or

(iii) to undergo training,

unless the measures would impose a disproportionate burden on the employer.

(c) in determining whether the measures would impose such a burden account shall be taken, in particular, of-

(i) the financial and other costs entailed,

(ii) the scale and financial resources of the employer’s business, and

(iii) the possibility of obtaining public funding or other assistance.”

Subsection 4 provides that “in subsection (3) – “appropriate measures” in relation to a person with a disability-

(a) means effective and practical measures, where needed in a particular case, to adapt the employer’s place of business to the disability concerned,

(b) without prejudice to the generality of paragraph (a) includes the adaptation of premises and equipment, patterns of working time, distribution of tasks or the provision of training or integration resources, but

(c) does not include any treatment, facility or thing which the person might ordinarily or reasonably provide for himself or herself”.

5. Deliberations

While the decision of the Adjudication Officer under appeal referenced the dismissal of the complaint as “in accordance with section 42 of the Workplace Relations Act 2015”, and both parties made submissions to the Court in respect of an appeal pursuant to section 42(2) of the Workplace Relations Act 2015 (the 2015 Act), the Court notes that the complaint was initiated under the Acts which has at section 77A a provision equivalent to section 42 of the 2015 Act under which the Labour Court’s appeal jurisdiction lies in respect of the within appeal.

At the outset of the hearing, the Court noted that its jurisdiction was confined to considering if the Adjudication Officer was correct to find that the within appeal claim was vexatious. Should the Court quash that finding, then the entire matter would be remitted back to the WRC for further investigation.

The Complainant submitted his complaint to the WRC on 14 August 2024. The cognisable period for consideration by the WRC, and the Labour Court on appeal, is therefore the period from 15 February 2024 to 14 August 2024. On the Complainant’s own account, the “egregious instance” of alleged discrimination, being the cancellation of the Complainant’s interview for the position of post-doctoral fellow, took place on 15 August 2024, outside the cognisable period for the complaint. 

The other aspect of the Complainant’s complaint, which was within the cognisable period, was in respect of the Respondent’s refusal, on 14 August 2024, to conduct the interview over Zoom which the Complainant said constituted a denial of reasonable accommodation to enable a person with a disability to undertake the role. The Complainant accepted that he was not a person with a disability within the meaning of the Acts but argued that his physical inability to attend the interview because of his ban from campus, which ban he contends was racial in origin, had the same impact on him as if he was a person with a disability and on that basis imposed the same obligation on the Respondent to provide reasonable accommodation for him as though he was a person with a disability. The Complainant’s submission is misconceived in this regard.

Section 16(3) of the Acts sets out the circumstances in which an employer (or potential employer) is obliged to provide reasonable accommodation measures and they only apply to persons with a disability as set out in the Act. There is no provision in the Acts imposed on employers to provide reasonable accommodation to employees without a disability and specifically reasonable accommodation in respect of employees covered by any of the other discriminatory grounds is not provided for in the Acts. In the absence of any express provision requiring employers to reasonably accommodate employees covered by other protected characteristics it is not for this Court to imply such an equivalence. Where the Complainant is not a person with a disability, he has no basis on which to advance a claim for discrimination arising from a failure or refusal by the Respondent to provide reasonable accommodation for him.

For the avoidance of doubt the Court does not accept the Complainant’s contention that “not being a white person” constitutes or equates to a disability within the meaning of the Acts. The Court concludes that the Complainant is not a person with a disability and further, that he has not been discriminated against by the Respondent on grounds of disability in refusing to provide him with a Zoom interview or otherwise or at all.

The Court further concludes that the Complainant has failed to identify any act of discrimination on any other grounds arising from a refusal by the Respondent to conduct interviews via Zoom. Specifically, the Complainant provided no evidence that any person of a different race, gender, age or civil status was interviewed via Zoom when he was not. The Complainant also asserted that he had been discriminated against on grounds of his socio-economic background but this is not a discriminatory ground under the Acts so was not considered by the Court.

The Complainant referenced multiple historic allegations of discrimination in his submissions the details of which do not fall to be considered by the Court in circumstances where no act of discrimination during the cognisable period has been identified by the Complainant and/or accepted by the Court.  It is well established that, in order for the Court to consider acts of alleged discrimination outside of the cognisable period in reliance on section 77(6A), a complainant must identify an act of alleged discrimination within the cognisable period. In circumstances where there are no identifiable instances of discrimination during the cognisable period any historical issues, including the existence of a ban on the Complainant entering the UCD campus, do not fall to be considered by the Court.

While the Acts and the 2015 Act do not provide a statutory definition of the terms “frivolous” or “vexatious” the High Court has provided helpful guidance in a number of judgments. Bermingham J in Nowak v Data Protection Commissioner [2013] 1 ILRM 207 said that the word “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”. Bermingham J elaborated on his conclusions in Nowak in O’N v McD [2013] IEHC 135, where he said that 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 O’N v McD Bermingham J relied on, and cited, a decision of the Supreme Court in Farley v Ireland (unreported, ex tempore, Supreme Court, 1st May 1997) where Barron J articulated the same explanation of the terms frivolous and vexatious.

The Court is of the view that the Complainant’s complaint is frivolous in that it has no prospect of success and is doomed to fail. The aspect of the Complainant’s claim in respect of reasonable accommodation cannot succeed where he is not a person with a disability and the cancellation of his interview took place outside the cognisable period for his complaint and so not only cannot succeed but cannot be considered by the WRC as it does not have jurisdiction to do so.

The Complainant provided information to the Court of the significant financial cost the Respondent has incurred in defending the multiplicity of complaints brought against it by him, which expenditure did not include the cost of the within appeal. The Respondent considers it is required to defend the complaints, even where proceedings are issued against employees of the Respondent or associated businesses and not against the Respondent itself. Where an employee of the Respondent is named by the Complainant (or any complainant), particularly when that employee is neither a service provider nor prospective or actual employer, it is understandable that the Respondent would engage in the defence of those complaints. Even in this case, where the correct Respondent (UCD) was identified, the Complainant persisted in his submissions in claiming that Ms Mikkonen was a proper respondent despite her not being named on the WRC complaint form or in the decision of the Adjudication Officer and despite her not being a prospective or potential employer of the Complainant. The Complainant explicitly sought “punitive and exemplary measures be imposed on respondent Ella Mikkonen”. The Respondent cannot be criticised for defending complaints which are of such a serious nature even where those complaints are subsequently found to be frivolous or vexatious. There is no doubt that there is significant financial cost and inconvenience involved in the defence of this complaint and appeal. Where the complaint is frivolous and cannot succeed, as determined by this Court, the hardship imposed on the Respondent, on the authority of Farley, renders the complaint vexatious.

6. Determination

In accordance with the provisions of section 77A(2)(b) of the Acts, the Court affirms the decision of the Adjudication Officer that the within complaint is vexatious.

The Court so determines.

	Signed on behalf of the Labour Court
	Niamh McGowan
AL	______________________
25/09/2026	Deputy Chairman

NOTE

Enquiries concerning this Determination should be addressed to Ms Amy Leonard, Court Secretary.