ADJ-00031267 - Workplace Relations Commission Kieran Glynn v Ray Whelan Limited

• Jurisdiction: Ireland
• Judgment Date: 29 March 2023
• Docket Number: ADJ-00031267
• Court: Workplace Relations Commission
• Respondent: Ray Whelan Limited

Procedure:

In accordance with Section 8 of the Unfair Dismissals Acts, 1977 – 2015 and Section 79 of the Employment Equality Acts, 1998 – 2021following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

This matter was initially scheduled to be heard by way of remote hearing on 30 September, 2021 pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI No. 359/2020, which designates the WRC as a body empowered to hold remote hearings. The hearing commenced on this date but was subsequently adjourned during the course of the Complainant’s direct evidence after I formed the view that the matter was not suitable to be dealt with by way of remote hearing. Neither party objected to the adjournment of the hearing on this basis. The matter was subsequently reconvened by means of an in-person hearing on the following dates, namely: 14/06/2022, 15/06/2022, 11/10/2022 and 12/10/2022.

The parties were informed at the outset of the hearing that the WRC is obliged to conduct all hearings involving the administration of justice in public unless the relevant Adjudication Officer decides, of his or her own motion, or following an application from a party to the proceedings, that due to the existence of ‘special circumstances’, the proceedings should be conducted in private.

The parties were also informed that following a hearing, a written decision stating party names would be published on the WRC’s website. The parties were also informed that a fully or partially anonymised version of the decision may be published where the Adjudication Officer decides, of his or her own motion, or following an application from a party to the proceedings, that due to the existence of special circumstances, the decision should be anonymised.

The parties were afforded an opportunity to make an application, if they so wished, that the hearing of the within complaints should be conducted in private or that the names of the parties should be withheld from the written decision. Both parties confirmed that they did not wish to make any application in this regard.

The parties were also informed that the Workplace Relations (Miscellaneous Provisions) Act, 2021 grants Adjudication Officers the power to administer an oath or affirmation. All witnesses who gave evidence were sworn in. The following persons gave evidence on oath at the oral hearing on behalf of the Complainant, namely: the Complainant, Ms. Ms. B (Complainant’s partner) and Mr. Terence Doyle (Complainant’s solicitor). The following persons gave evidence on oath on behalf of the Respondent, namely: Mr. Joe Shannon (Transport Manager), Ms. Michelle Bambrick (Office Manager), Mr. Ray Whelan (Owner of the Respondent Company) and Mr. Liam Barton (HR Consultant). The Adjudication Officer required the attendance of Dr. A (General Practitioner) at the hearing on 14 June, 2022 to give evidence in accordance with the provisions of Section 8(13) of the Unfair Dismissals Acts, 1977 to 2015 following a request on behalf of the Complainant. I have decided to withhold the names of the following witnesses, namely Dr. A and Ms. B, from the written decision.

The parties were afforded the opportunity to put questions to the other sides witnesses by way of cross-examination at the oral hearing.

Application by Respondent for AO to dismiss the complaints

The Respondent’s representative made an application at the outset of the reconvened hearing on 11 October, 2022 for the complaint under the Unfair Dismissals Act, 1977 to be dismissed in accordance with the provisions of Section 8A of that Act and for the complaint under the Employment Equality Act, 1998 to be dismissed in accordance with the provisions of Section 77A of that Act. The aforementioned provisions of these Acts provide that an Adjudication Officer may, at any time, dismiss a complaint or dispute referred to him or her if he or she is of the opinion that it is frivolous, vexatious or misconceived.

I afforded both parties the opportunity to make oral submissions on this matter at the hearing on this date. Having considered the oral submissions, I informed both parties that I intended to hear the evidence from both parties in its entirety and that I would address the said application by the Respondent in my written decision following the conclusion of the hearing in this matter. I have set out hereunder my decision in relation to the said application.

In considering this matter, I have taken cognisance of the Supreme Court case, Farley v Ireland & Ors [(1997) IESC 60, at page 1521], which referred to frivolous and vexatious and in the course of that judgement stated: "So far as the legality of the matter is concerned, frivolous and vexatious are legal terms, they are not pejorative in any sense or possibly in the sense that Mr. Farley may think they are. It is merely a question of saying that as far as the plaintiff is concerned if he has no reasonable chance of succeeding then the law says that it is frivolous to bring the case. Similarly, it is a hardship on the defendants to have to take steps to defend something which cannot succeed and the law calls that vexatious.".

Furthermore, in Fay v Tegral Pipes Limited & Ors [[2005] 2 IR 261] the Supreme Court reiterated the principles already well established. McCracken J delivered the Court's judgement stressing that the “real purpose” of the court's inherent jurisdiction to dismiss frivolous or vexations claims was firstly to ensure that the courts would be used only for the resolution of genuine disputes and not for “lost causes” and, secondly, that parties would not be required to defend proceedings which could not succeed.

It is clear from the aformentioned caselaw that there is a very high bar or threshold which must apply before an Adjudication Officer can invoke his or her power to dismiss a complaint on the basis that is considered to be frivolous or vexatious. In order to invoke these provisions, the Adjudication Officer must be satisfied that the complaint has no reasonable chance of succeeding under the relevant enactment in question. Having regard to the evidence adduced, I am satisfied that the within complaints which have been referred by the Complainant under the Unfair Dismissals Act and the Employment Equality Acts do not fall within the definition of “frivolous or vexatious” as provided for within the relevant provisions of the respective enactments.

Background:

The Complainant was employed by the Respondent as a Binman from 1998 until September, 2020. The Complainant claims that he was unfairly dismissed by the Respondent on 3 September, 2020. The Complainant further claims without prejudice to the foregoing, that the Adjudication Officer is not precluded from making an alternate finding of constructive dismissal. The Respondent disputes that the Complainant was dismissed, either constructively or otherwise, and contends that the Complainant resigned his position of his own volition. The Complainant claims that he was subjected to discrimination by the Respondent on the grounds of his disability contrary to Section 8 of the Employment Equality Acts. The Complainant also claims that the Respondent has failed to provide him with reasonable accommodation contrary to its obligations under Section 16 of the Acts. The Complainant also claims that the Respondent has subjected to him to harassment contrary to Section 14A of the Acts and to victimisation contrary to Section 74(2) of the Acts. The Respondent disputes all of the claims of discrimination under the Employment Equality Acts.

Summary of Complainant’s Case:

The Complainant submits that he commenced employment with the Respondent in 1998 and worked as a Binman until 3 September, 2020 when he was dismissed from his position. The Complainant is medically obese and has asthma which on occasion has resulted in shortness of breath. The Complainant submits that he was also diagnosed with Type II diabetes and a respiratory complaint but submits that he was fit to work and carry out his duties as a Binman at all material times despite the Respondent’s contention to the contrary. The Complainant submits that by the time of his dismissal he had completed 22 years’ service and was by far the longest serving binman working with the company. The Complainant submits that he went absent from work on certified sick leave on 8 February, 2019 for one week as a result of gout. The Complainant notified the Respondent of his intention to return to work on 18 February, 2019 but received notification from Mr. Joe Shannon (Transport Manager) to advise him not to return to work. The Complainant was advised to report to Mr. Ray Whelan (Managing Director) on 19 February, 2019. The Complainant attended this meeting and was told by Mr. Whelan that he did not consider that the Complainant was fit enough to do his job and that he was being effectively suspended from work without pay until he could sort himself out. The Complainant submits that Mr....