High Court dismisses unfair dismissal appeal and awards respondent costs under Legal Services Regulation Act 2015 s. 169.

THE HIGH COURT

[2025] IEHC 758

[Record No. 2024/431 MCA]

BETWEEN

MARIAN JAROSLAW NOWAK

APPLICANT/APPELLANT

AND

MOOREHALL DISABILITY SERVICES T/A MOOREHALL LIVING

RESPONDENT

EX TEMPORE JUDGMENT of Mr. Justice O’Higgins delivered on the 12th day of December 2025

1. This is my ex tempore judgment on two motions in these statutory appeal proceedings which I heard yesterday. The parties, and in particular the appellant, has requested that I provide as prompt a judgment as possible, and that is what I have endeavoured to do. I will refer in this ex tempore judgment to the applicant/appellant as simply the appellant, or Mr. Nowak, and I will refer to the respondent to the proceedings as simply the respondent, even though it is the applicant for the purpose of one of the motions to strike out the proceedings for, it is said, being irregular, vexatious and having no reasonable prospect of success.

2. Now, by notice of motion dated the 20th of August of 2024 the applicant seeks, and I’ll quote from the notice of motion, “order and lodgement Notice of Appeal against the decision WRC Adjudication Officer ADJ-00016805 and decisions that the Labour Court upheld on July 31, 2024” and then there’s a reference number, which is quite important, “UD//20/148”, and “UD” stands for unfair dismissal. The notice of motion indicates on its face that the relief claimed is “Judgment on this appeal and the costs of these proceedings”. The other motion before the court is the respondent’s motion to strike out the appeal proceedings, and I’ll address that motion presently.

3. In order to set matters in context, I will say something about the pertinent background facts. I’m going to borrow from the replying affidavit of the respondent for that purpose insofar as it can be said to be, in certain respects, a non-controversial outline of those facts, and I’ll take it up from para. 4 of the replying affidavit of Mr. O’Riordan, solicitor for the respondent, sworn herein on the 4th of November of 2024: “4. The Respondent provided disability services, including residential accommodation for persons with certain disabilities.

5. The Applicant was employed by the Respondent as a care assistant commencing on or around the 16th February 2018. He was dismissed from his employment on or around the 20th June 2018 having failed [according to the respondent] to pass his probation on the basis [according to the respondent] that he failed to effectively engage with residents and colleagues.

6. The Applicant lodged complaints to the Workplace Relations Commission (WRC) alleging penalisation by way of dismissal pursuant to the Protected Disclosures Act, 2014 (complaint number CA-00021731-001), a complaint alleging unfair dismissal pursuant to the Unfair Dismissals Act, 1977 (complaint number CA-00021731-002), and a further complaint of penalisation pursuant to the Safety, Health and Welfare at Work Act, 2005 (complaint number CA-00021731-003)”.

4. Now, the WRC proceedings were allocated a particular number in the WRC and that is ADJ-00016805. The substantive matter came on for hearing on the 20th of January of 2020 before a particular adjudication officer. The decision of the WRC was provided on the 10th of June of 2020. The outcome was that “none of the applicant’s complaints were upheld”. The applicant did not seek judicial review of the WRC decision, as noted by the respondent, rather the applicant appealed two of the three complaints lodged before the WRC on the 16th of July of 2020. They are the complaints pursuant to the Protected Disclosures Act 2014 and the Unfair Dismissals Act of 1977.

5. The Labour Court appeal was heard over six days, and they were the 22nd of October 2022, the 7th of February 2023, the 7th and 8th of November 2023 and the 21st and 22nd of May 2024. Following the hearing on the 7th of February 2023, the applicant lodged a further complaint to the WRC alleging that the content of the respondent’s submissions to the Labour Court in defence of the appellant’s appeal constituted penalisation pursuant to the Protected Disclosures Act of 2014.

6. On or around the 17th of October 2023, the applicant lodged a complaint to the Nursing and Midwifery Board of Ireland (NMBI) regarding the Director of Care with the respondent, whom I need not name, relating to matters which he alleged took place during his employment with the respondent in 2018. The complaint was referred to a Preliminary Proceedings Committee where it was found that a prima facie case had not been established. The complaint therefore proceeded no further and that was confirmed to the Director of Care in a letter in January of 2024.

7. In addition, it became apparent from documentation provided by the NMBI, according to the respondent’s solicitor, that the appellant had also made a complaint to HIQA (Health Information and Quality Authority) regarding the respondent and that complaint prompted HIQA to seek assurance reports from the respondent company, which is an alternative to an inperson inspection.

8. The later WRC proceedings with reference ADJ-00044672 came on for hearing on the 18th of July of 2024 and the adjudication officer on that occasion found that the second WRC complaint was res judicata and, as such, the complaint was unsuccessful. It was indicated that the reasons for that conclusion would be given in a later written decision. The appellant apparently indicated during the second WRC hearing that he would appeal that matter to the Labour Court.

9. The respondent contends, and this is one of the issues before me, that the appellant has issued repeated vexatious complaints or proceedings which have no realistic prospect of success, and it is said that this appeal is a further example of such conduct. The respondent contends that this appeal is frivolous, vexatious and bound to fail, amounts to an abuse of process, is not properly constituted and is irregular and is such that the high threshold for striking out a proceeding at this early stage has been met and that is one of the issues I will address.

10. Now, for reasons of clarity, it is important that I point out that the Labour Court issued two separate decisions in relation to each matter which was appealed from the WRC. One

decision related to the Protected Disclosures Act 2014 appeal and that bears the Labour Court reference PD/20/12. The appellant has not appealed that decision to the High Court.

11. The second decision of the Labour Court relates to the Unfair Dismissals Act 1977

decision dated the 31st of July 2024 which bears the Labour Court reference number UD/20/148 which is the reference number that appears in bold on the face of the appellant’s originating notice of motion. That appears to be the only appeal that the appellant has lodged and that is the decision, and it appears to be the only decision, the appellant has attempted to appeal from.

12. I will now consider the appellant’s affidavits. The appellant’s affidavit grounding his notice of motion, which purports to ground this appeal, was sworn on the 20th of August 2024. It is a very short document and consists of four ‘two or three-line’ paragraphs where he indicates his means of knowledge, references the notice of the 16th of August 2024 (and there’s a reference to 12 pages which are not exhibited), and indicates that the assertions, allegations and information contained in the notice which are within his knowledge are true and he honestly believed that the assertions, allegations and information contained in the notice, which are not in his knowledge, are also true and it concludes with an indication that he's been advised and “acknowledge[s] that it is an offence to make a statement in this Affidavit that is false or misleading in any material respect” and which he knows to be false or misleading. So that’s that affidavit. It is very brief, and as I’ve said, not terribly informative.

13. I have also read the appellant’s affidavits dated the 4th of March and 5th of March 2025, respectively. They are more comprehensive, it’s fair to say, and for ease of reference and to ensure that I can properly convey a fair and proper flavour of the appellant’s case, I will refer to these documents. In the affidavit sworn on the 4th of March of 2025 from para. 3, the following is stated: “3. The Respondent hired the Applicant for his job as a Care Assistant on February 16, 2018. [In] January 2018 the Respondent provided the Applicant with only a portion of the required general occupational health and safety training. The Respondent violated the regulations by failing to pay the Applicant for the time spent on the aforementioned training.

4. The Respondent violated the basic employment regulations by failing to provide the Applicant with the full training required by the regulations for Medication administration training.

5. The Respondent violated the regulations by forcing the Applicant to perform work related duty to monthly or weekly medication check for which the Applicant was not qualified due to the Respondent’s failure to provide the aforementioned Medication training.

6. In June 2018, the Respondent immediately dismissed the Applicant on false allegation of lack of cooperation between the Applicant and the residents. By dismissing the Applicant, the Respondent violated general employment regulations and its own regulations arising from Employee Handbook/Disciplinary Rules and Procedures & Grievance Procedure”.

14. Now, I’m not in any sense ignoring the contents of the balance of the affidavit, but in terms of matters that are germane to this judgment, I’m going to skip down to para. 24 of the affidavit which continues under the heading “Appeal-Labour Court proceedings” as follows: “24. The Labour Court did not use enough factual evidence or any factual evidence at all to make the decision regarding the Respondent violated the Labour Court Rules 2024 by failing to provide the Applicant with their written submission and the written statements from their witnesses.

i) The submission of the Respondent and their witnesses statement was delivered to the Applicant two years later after required time.

25. The Labour Court did not use any factual evidence at all and did not make any

decision regarding the Respondent penalised the Applicant by not paying the Applicant for a month’s training session. Applicant claimed this penalisation [in] his written submission to Labour Court…

i) Applicant requested [the] Respondent about payment for training… but the Respondent failed to fulfil his financial obligation towards the appellant.

26. The Labour Court did not use any factual evidence at all and did not make any

decision regarding the Respondent penalised the Applicant by … not sending the job reference…

27. The Labour Court failed to follow [paragraph] 44. (1)(a)(i) [of the] Workplace Relation[s] Act 2015 which state that the parties to the appeal get opportunity to be heard by it and to present to it any evidence relevant to the appeal.

(i) The Labour Court lost…self-control while challenging the applicable law and Medication Policy and did not allow the Applicant to finish evidence in chief regarding…using of antipsychotic medication and the role of Medication Policy in [performing] Applicant’s job.

28. The Labour Court failed to follow [paragraph] 44. (1)(a)(i) of the Workplace Relation[s] Act 2015 which state that the parties to the appeal get opportunity to be heard by it and to present to it any evidence relevant to the appeal…

29. The Labour Court did not use any factual evidence at all and denied the Applicant the possibility of an adjournment of the hearing without [giving]…reason… contrary to health and safety Public Policy…

30. After the Labour Court refused the Applicant [permission] to cross-examine main witnesses [DOC and HR] and the court proceedings were concluded/closed, Applicant filed a complaint to the Chairman of the Labour Court and the Minister of Justice… describing all the irregularities during the Court case.

i) The Labour Court [did] not reopen the court proceedings and did not address the irregularities raised by the Applicant.

31. The Labour Court erred in law by prejudice[ing] the case and accepted the Respondent[’s] written submission[s] without hearing evidence of the Respondent’s main witnesses Director of Care… and HR or claimant’s right to cross examination of the respondents witnesses being prevented from properly challenging these matters the case could not be fairly or properly heard. [Haughey [1971] and Supreme Court

decision… Zalewski v Adjudication officer… [2020]].

i) The Labour Court accepted Respondent’s unreasonable and absurd written submission[s] which state that…delivering Medication Training [SAM] to the Applicant on the beginning of the employment is a dangerous practice…The acceptance of this statement is contra legem…

32. The Applicant[’s] case was mainly about medication rule and Medication Policy the Labour Court did not use any factual evidence at all from Medication Policy.

33. The Applicant’s case was about two alleged misconduct[s]:

i) Medication errors

ii) Neglect towards one of the resident[s] and his family member

iii) The Labour Court did not use any factual written evidence at all to establish that the allegations made against the Applicant were falsified personally by DOC and one of the nurses responsible for administering medication.

34. The Labour Court used wrong facts and law about Appellant’s rights to fair disciplinary process during probation of [the] Applicant’s employment and after that [the] Labour Court used wrong facts and law about appellant’s rights to fair disciplinary process calculating Applicant’s dismissal.

i) The Labour Court[’s] decision [that the] Applicant had [no] right to fair disciplinary process was contrary to [the] Applicant’s contract of employment and Disciplinary Policy…

ii) Was contrary to applicable law where [there] is alleged misconduct” and also breached certain cases that are referenced at para. 34. “35. The Labour Court erred on the liability issue the consideration to facts relating to [the] Applicant’s dismissal: the genuineness of the Respondent’s belief and…any of the grounds of its belief about [the] appellant’s alleged [guilt] if… not any investigation and the Applicant was refused appeal by [the Director of Care]...

36. The Labour Court failed [to] establish primary facts who was guilty and the reason [for] the Applicant’s dismissal on 20 June 2018…

37. All disclosures made by the Applicant during the employment as indicated at “Index of protected information…” are very detailed information about health and safety of the residents… [These irregularities describe] medication administration and medication training policy issue[s]. At every disclosure made by the Applicant the Labour Court failed to recognize what is a protected information in the meaning [of the] 2014 Act and [this] failed to follow the decision of [the] Supreme Court [in] Baranya v. Rosderra Irish Meats Group Limited [2021]”. And I’ll come back to that decision and the citation presently because it was the subject of a discrete submission by Mr. Nowak during the motion.

15. Now, the respondent has made what, in my view, is an important legal submission which has a bearing on the question as to the statability of the appellant’s whole appeal and it seems to me that the appellant has not sufficiently addressed this point in his arguments. Under the Unfair Dismissals Act of 1977, subject to certain exceptions, the right to bring a claim for a dismissal is not available to an employee who had less than one years’ continuous service with the employer who dismissed him. Here, the appellant’s employment was terminated after approximately four months. Therefore, in order for his appeal to the Labour Court and his purported appeal to the High Court to get out of the blocks, as it were, he firstly had to succeed in establishing that he had made a protected disclosure within the meaning of the Protected Disclosures Act of 2014.

16. As the respondent correctly notes in their submissions, where there is a finding that no protected disclosure was made, the appellant’s claim for unfair dismissal cannot succeed as he did not have one year’s continuous service. One of the appellant’s central difficulties, it seems to me, apart from the suggested non-compliance with Order 84 (C) of the Rules of the Superior Courts and the suggested deficits in his pleadings, is that the Labour Court, in its ruling on the protected disclosure appeal, considered this matter in detail and made a number of clear-cut conclusions which appear to me to be well reasoned.

17. Firstly, the appellant’s testimony before the Labour Court, it was found, lacked credibility on the key issues. Secondly, the Labour Court found, as a fact or it could be said by way of a mixed conclusion of fact and law, that the appellant did not have a realistic or objective basis for believing that the relevant wrongdoings had occurred. This overarching conclusion related to the various complaints and disclosures made by the appellant which are considered and analysed at some length by the Labour Court in its ruling. When I refer to its ruling, what I’m referring to there is the ruling given by the Labour Court carrying reference number PD/20/12 which was its ruling in the protected disclosure appeal. The applicant, in point of fact, has not put before the court either ruling from the Labour Court, however, the respondent has put that before the court so the court has had an opportunity to read, in some detail, into the extent of the materials considered in the Labour Court hearing and obviously has also had an opportunity to assess the methodology deployed by the Labour Court in coming to its

conclusion that was adverse to the appellant.

18. I have had an opportunity to consider the definitions in the 2014 Act of a number of relevant terms. These include “protected disclosure”, which is to be construed in accordance with section 5 of the Act, and that’s also the case with the expressions, “relevant information” and “relevant wrongdoing”. Accordingly, I think it’s appropriate that I should then consider in this ex tempore judgment section 5 itself of the Protected Disclosures Act of 2014 and, as I have said, section 5(1) provides that: “For the purposes of this Act “protected disclosure” means, subject to subsection (6) and sections 17 and 18, a disclosure of relevant information…made by a worker in the manner specified in sections 6, 7, 8, 9 or 10”.

Then in subsection 2 of section 5, the following is stated: “For the purposes of this Act information is “relevant information” if —

(a) in the reasonable belief of the worker, it tends to show one or more relevant wrongdoings, and

(b) it came to the attention of the worker in connection with the worker’s employment”. Therefore, for completion, I should also refer to section 5(8) which provides that: “In proceedings involving an issue as to whether a disclosure is a protected disclosure it shall be presumed, until the contrary is proved, that it is.” So, the appellant ought to have had the benefit of that presumption when the Labour Court came to carry out its analysis of the issues.

19. Counsel for the respondent directed my attention to the decision of Ms. Justice Ní Raifeartaigh for the Court of Appeal in the case of Barrett v. The Commissioner of An Garda Síochána [2023] IECA 112 which, having considered that decision, in my view bears out the interpretation adopted by the Labour Court in the present case. I have considered the appellant’s argument that the decision of the Supreme Court in Baranya v. Rosderra Irish Meats Group [2022] 2 IR 97 supports his argument that the Labour Court misapplied the definition and got it wrong. I have read the judgment but, in my view, while it is of course a judgment I must follow, the case is not, in fact, in point on the question as to what is meant by the requirement that the relevant information must, in the reasonable belief of the worker, tend to show one or more relevant wrongdoings.

20. The Court of Appeal decision in the Barrett case is in point, it seems to me, and I will turn to that now, and it’s in the book of authorities that the parties have provided to the court, and it’s a decision, as I’ve said, of Ms. Justice Ní Raifeartaigh with whom Mr. Justice Noonan and Mr. Justice Binchy agreed, and its neutral citation is [2023] IECA 112.

21. Now, at para. 113 of that judgment, the following is stated by Ms. Justice Ní Raifeartaigh: “I also wish to draw attention to the word “reasonable” in s. 5(3). In the first place, it is important to observe that the word “reasonable” introduces an objective standard. It is not merely a question of what the worker honestly or subjectively or genuinely or emphatically believed. It is a question of whether he had a “reasonable belief”, in other words whether his belief was based on reasonable grounds, or to put it another way, whether a reasonable person would have held the belief if he or she had the same information as the worker. Secondly, the reasonableness of the belief of the worker must be tested according to the facts as he or she knew them at the time of the making of the communication alleged to constitute a protected disclosure. Therefore, information coming to the worker’s attention after the communication was made is not relevant to the Court’s assessment in this regard”. Ms. Justice Ní Raifeartaigh then continues and deals with other important issues at para. 114 and onwards which I think does bear my reading it out because it’s germane to the assessment of the Labour Court methodology. In para. 114 Ms. Justice Ní Raifeartaigh says the following: “A short summary of the main points arising from the above discussion is as follows:

(i) The communication must disclose some wrongdoing on the part of the employer; (s. 5 of the 2014 Act);

(ii) The complainant must have had a reasonable belief that the employer was engaged in wrongdoing (s. 5 of the Act): as always, the term “reasonable” connotes an objective standard;

(iii) The communication must have some informational content; (s. 5, Baranya; CGI)” And then a series of other distilled principles continue at (iv) down to (x) which I needn’t read out for the purposes of these proceedings.

22. In my view, on any construction of the Labour Court ruling, it meets and applies the definition within section 5 of the 2014 Act. It follows there that even if the court were minded to permit the appellant to rely upon the suggested legal issues identified in his affidavits of the 4th and 5th of March 2025, the appellant could still only succeed in a case for unfair dismissal where it has been established that he had made a protected disclosure within the meaning of the Act. Where it has been found that no protected disclosure within the meaning of the Act was made, the Labour Court simply had no jurisdiction or entitlement to adjudicate upon the fairness or otherwise of the appellant’s dismissal. In that connection, it seems to me that the respondent is correct that the points raised at paras. 25, 26, 34, 35 and 36 of the appellant’s grounding affidavit are misconceived.

23. The key finding made by the Labour Court in its ruling in PD/20/12 was that, on the appellant’s own evidence, viewed from an objective standard, the appellant did not have a reasonable belief that the information tended to show a wrongdoing on the part of the employer. The Labour Court went through each of the suggested acts of wrongdoing put forward by the appellant and concluded that he did not reasonably believe they tended to show one or more relevant wrongdoings. As I have said, it is my view that the appellant has, unfortunately, not addressed this issue sufficiently in his submissions.

24. The second core failing of the appellant’s approach, in my view, is apparent from the manner and context of his submissions before the court. It is my judgment that they appear to misunderstand the nature of the appeal before the High Court. The only appeal open to the appellant which had been lodged in the context here was an appeal pursuant to section 46 of the Workplace Relations Act of 2015 which is an appeal on a point of law only. There is no full right of appeal, nor is there an entitlement of the appellant to simply say “I do not agree with the ruling of the court below, I wish to appeal it”, nor can the High Court approach the matter by substituting its own view of the facts for that of the Labour Court, particularly in circumstances where the lower court heard the witnesses give their evidence viva voce and therefore was better able to assess demeanour and credibility.

25. Much of the appellant’s affidavits allege that the Labour Court did not use “enough factual evidence or any factual evidence” in arriving at its decision. In my view, this simply is not borne out by a reading of the ruling. I take the view that the appellant’s submissions in this regard are misconceived and not supported by the evidence before the court in any way.

26. The respondent directed my attention to a case called Hosford v. Department of Employment Affairs [2020] IEHC 138, a decision of Mr. Justice Meenan where he considered the jurisdiction of the High Court in appeals under section 46 of the Workplace Relations Act of 2014. In that case, Mr. Justice Meenan considered the judgment of Mr. Justice MacMenamin sitting as a High Court Judge in a case called Nano Nagle School v. Daly [2019] IEHC 63 where Mr. Justice MacMenamin said the following at para. 109: “in the Attorney General v. Davis, The Supreme Court… [said] there is to be found a convenient summary of the present law, which is somewhat more nuanced than the judgment in Henry Denny. In a detailed judgment, McKechnie J., speaking for the Court, identified what may be regarded as issues of law which may be considered on a case stated. These included (i) findings of primary fact where there is no evidence to support them; (ii) findings of primary fact which no reasonable decision-making body could make; (iii) inferences or conclusions which are unsustainable by reason of any one or more of the matters listed above; or which could not follow or be deducible from the primary findings as made; or which were based on an incorrect interpretation of documents... If not included in that category, I would add a determination which is ultra vires, where there is a failure of statutory duty. Undoubtedly, deference is due to an administrative tribunal acting within the scope of its duty. But, when there is a substantial failure of compliance with that statutory duty, a court must intervene. The determination did not comply with the statutory duty laid down in the Act”.

27. And then at para. 12, Meenan J. in the Hosford case stated the following: “Thus, the appeal before this Court is only on a point of law. This necessarily limits the jurisdiction of this Court, as it is not a full appeal. Even if it was minded to do so, this Court could not substitute its own decision for that of the Labour Court. However, the court is entitled to look at the procedures and processes followed by the Labour Court in making its findings of fact, and to consider whether its decision is sustainable at law”.

28. In a similar vein in McCormack v. Ashford Castle [2022] IEHC 188, Mr. Justice Barrett referred to a passage of Gilligan J. in ESB v. Minister for Social Community and Family Affairs [2006] IEHC 59, wherein he stated the following: “the approach of this Court to an appeal on a point of law is that findings of primary fact are not to be set aside by this Court unless there is no evidence whatsoever to support them. Inferences of fact should not be disturbed unless they are such that no reasonable tribunal could arrive at the inference drawn and, further, if the Court is satisfied that the conclusion arrived at adopts a wrong view of the law then this

conclusion should be set aside. I take the view that this Court has to be mindful that its own view of the particular decision arrived at is irrelevant. The Court is not retrying the issue but merely considering the primary findings of fact as to whether there was a basis for such findings and as to whether it was open to the appeals officer to arrive at the inferences drawn and adopting a reasonable and coherent view to arrive at her ultimate decision”.

29. In my view, stepping back from matters and having viewed the materials, the Labour Court conducted a detailed analysis of the evidence that was before it. Having done so, it was entitled to come to the conclusion that it reached. I agree with the respondent’s submission that there is no basis for the appellant’s argument that not enough factual evidence or, indeed, no factual evidence, was considered by the Labour Court. The evidence considered is set out within the ruling from the Labour Court carrying reference number PD/20/12.

30. I should also consider one aspect of the appellant’s appeal and it’s this: the appellant’s affidavits raise what might be termed fair procedure-type arguments. The appellant contends that the Labour Court’s treatment of the issues breached provisions of section 44 of the Workplace Relations Act 2015 which concerns certain procedural rights. In my view, this submission has to be considered in light of the difficulty facing the appellant of having to succeed on the protected disclosure argument, and also in circumstances where the high point of his fair procedure argument, it seems to me, is that he could not cross-examine the two parties whom the respondent chose not to call in evidence, namely the Director of Care, Ms. BM, and the HR manager, who I will call “HR”. Neither person gave evidence and therefore their testimony did not feature in the bank of evidence facing the appellant.

31. In my view, a party to adversarial proceedings cannot dictate to the other party, as a general proposition, whether they call witnesses or what witnesses to call. No authority was provided to the court that says otherwise. It is also the case that, if a witness or a litigant is, and I don’t mean this pejoratively, rambling off topic or putting before a court irrelevant information or material, it is perfectly legitimate and, indeed, required that the court will say to the litigant or the witness you must only offer or deal with relevant matters. In this way, the court will maintain reasonable control and order, and the proceedings will be coherent and will not become unfocused or take longer than they should.

32. In the course of submissions before me, the appellant unfortunately demonstrated why this is the case. Repeatedly during his submissions in the High Court, the appellant focused on matters that were not relevant, which did not concern legal issues and involved more going over and rehashing of factual issues and disputes that were on his mind. These matters did not address the legal issues presented by the two motions before the court. It was necessary for the court to intervene from time to time and seek to guide the appellant back onto the guiderails in an effort to maintain good order and coherence.

33. In my view, there is no substance to what I regard as generic and vague fair procedure arguments made by the appellant in respect of the fairness and lawfulness of the hearing before the Labour Court. The detailed and comprehensive ruling of the Labour Court bears this out and also demonstrates that reasons were indeed given, contrary to what was submitted, for the Labour Court’s ultimate decision.

34. The same applies to the appellant’s criticisms of the refusal of the Labour Court to grant an adjournment that the appellant sought and in that connection, I note that at para. 29 of the appellant’s grounding affidavit of the 4th of March 2025, the appellant alleged that the Labour Court did not give a reason for refusing his adjournment application. On reading the Labour Court decision bearing reference PD/20/12, that simply appears to be not correct. The relevant part of the ruling reads as follows: “In deciding to decline the postponement request, the Court had regard to the following: the appeal, and linked appeal, were received by the Court in July 2020; the Complainant ceased his employment with the Respondent in 2018; the hearing of the appeal over consecutive days was agreed by all parties; extensive submissions were made by both parties and testimony heard from four witnesses; the Complainant notified the Court at short notice at 8.30am on 22 May 2024 that he was unable to attend the hearing that day; this was the second occasion that the Complainant had sought to adjourn proceedings mid-way through a two-day hearing; no medical certification was submitted to confirm the Complainant’s medical status; all oral evidence and cross-examination of that evidence on behalf of the Complainant had concluded; the Respondent was present at the hearing with representation and several witnesses and was ready to defend the appeal; the Respondent was opposed to the application for an adjournment of the case; the requirement for fairness and equity must apply to both parties”. In my view, therefore, there is no substance to this procedural criticism.

35. In any event, it seems to me that the appellant’s criticism of the conduct of the proceedings before the Labour Court has to be viewed in light of the fact that he did not judicially review the decision, firstly, and, secondly, in light of the fact that the fairness or otherwise of the dismissal which was, after all, the subject of the Labour Court hearing, could only be considered by the Labour Court if that dismissal arose from his having made a protected disclosure. Since it was found, after careful and detailed analysis, that he had not, the fairness or otherwise of the dismissal cannot, in fact, be considered by the Labour Court for the reason I have already indicated. Importantly, as I have said, the appellant has not appealed the Labour Court decision with respect to PD/20/12 and I think the respondent is correct that the Labour Court finding in that separate appeal from the WRC cannot now be challenged.

36. In addition to these substantive points, which have been addressed by the appellant insufficiently in his presentation, the respondent takes a number of procedural objections arising from suggested non-compliance with the Rules of the High Court. I do not use the word “procedural” in any sense to minimise the importance of these objections. The respondent submits that these are more than merely technical requirements and should be observed, irrespective of whether the appellant is represented by a lawyer or is a litigant in person. I would respectfully agree. Merely because the appellant is representing himself is not a basis for disregarding or overlooking the Rules of Pleading, the Rules of Court or the technical requirements of relevant statutory provisions. There cannot be one set of rules for represented parties and a wholly different set of rules for those who represent themselves.

37. In Hosford v. Ireland and the AG [2021] IEHC 133, my colleague, Mr. Justice Simons, made the following statement, with which I agree, at para. 21 of that case: “The applicant emphasises that he is representing himself without the benefit of legal representation, and invites the court to “correct” any procedural irregularities. The applicant relies in this regard on the judgment of Ryan J. … in Bennett v. Egan [2011] IEHC 377, to the effect that a court has to be careful in dealing with a lay litigant to ensure that a defect in procedural steps does not shut out a genuine claim. This is, of course, an important consideration. There are, however, limits to a court’s discretion to condone non-compliance with procedural requirements. The objective of the Rules of the Superior Courts is to safeguard the rights of all parties to litigation. The constitutional right of access to the courts is not the prerogative of one side alone. It also entails a right to fair procedures in the defence of proceedings. Whereas a court may show some indulgence to a party, such as the applicant, who chooses to represent themselves in proceedings, this cannot be done to the detriment of the rights of the other parties. A Court must protect the procedural rights of the opposing parties, and, relevantly must uphold the principle of the finality of litigation. This is so even in proceedings brought by a litigant in person”.

38. In similar vein, in McCormack v. Ashford Castle Hotel Limited [2022] IEHC 188, Mr. Justice Barrett held as follows at para. 17: “Courts too have a tendency to be more lenient with self-represented litigants than other litigants. However, a question does arise as to whether such systemic indulgence is always entirely fair to the parties who are not shown such indulgence. Justice has to be done in an even-handed manner; certainly the extension of any indulgence in any one case has to be carefully weighed by a court, or other decision-making body minded to extend such indulgence, against any time and/or financial and/or other costs that it raises for the other side in proceedings, not least in ensuring that proceedings are brought to a conclusion in as timely a manner as justice allows”.

39. Having considered the appellant’s pleadings and affidavits, it is perfectly clear to the court that the appellant’s proceedings before the High Court are irregular and defective and, unfortunately, do not begin to comply with the requirements set out in Order 84C of the Rules of the Superior Courts.

40. With respect to the appellant’s notice of motion, it seems to me the following defects and deficits are apparent: 1) The notice of motion should be entitled in the manner of the provision of the enactment pursuant to which the appeal is made. According to Order 84C Rule 2 (i), it is not so entitled. 2) The notice of motion should specify the relief sought and the particular provision or provisions of the relevant enactment authorising the granting of such relief pursuant to Order 84C Rule 2 (ii). The notice of motion here does not specify the relief sought adequately, nor does it specify the provision or provisions of the enactment authorising the granting of such relief. 3) The notice of motion should, pursuant to Order 84C Rule 2 (iii) state concisely the point or points of law on which the appeal is made. The notice of motion does not specify any point of law on which the appeal is being made. 4) The notice of motion has sought “order and lodgement Notice of Appeal against the decision WRC Adjudication Officer… and decisions [of] the Labour Court upheld on July 31, 2024.” I think the respondent is correct in contending that, insofar as the appellant seeks an “order and lodgement notice of appeal” of the

decision of the Workplace Relations Commission, there is no basis pursuant to Order 84C for such which permits the appellant to pursue an appeal of a WRC

decision in the High Court. Separately, insofar as the appellant seeks an “order and lodgement Notice of Appeal” with respect to the Labour Court ruling, no order is actually required to lodge the appeal, nor has it been specified by the appellant in the notice of motion what form any such order should take. For these reasons, it seems to me that the originating document, namely the notice of appeal, is significantly deficient.

41. The matter doesn’t end there, because the applicant’s grounding affidavit is also defective, in my view. I agree with the deficits identified by the respondent in the grounding affidavit sworn on behalf of the respondent. Pursuant to Order 84C Rule 3 (1)(a), the affidavit should contain a description of the applicant including particulars sufficient to explain the standing of the applicant. We will pass on that.

42. I think the most serious omission is the omission relating to Order 84 Rule 3 (1)(e). The affidavit should exhibit a copy of any application made to the deciding body, any official record and, if relevant, any other record of the proceedings before the deciding body and also, importantly, a copy of the decision of the deciding body. The appellant’s grounding affidavit has not exhibited any such documents. There was a reference in the grounding affidavit to an unidentified or insufficiently identified 12-page document, however, the said document was not exhibited in the applicant’s grounding affidavit and that document, I understand, has never been provided to the respondent.

43. Having said all of the above, I don’t think any court would be anxious to close out an appellant from pursuing a case which might be substantively stateable if there was a way to remedy deficits in written documentation that did not involve a wholesale disregarding of the Rules of Court. But, in this particular case, the respondent took the appropriate step of writing a letter to the appellant dated the 21st of October 2024, pointing out the deficits that I’m attempting to summarise in this judgment, in the appellant’s papers and pleadings.

44. I’ll turn to that letter now, in fact, and this is a letter from Sherwin O’Riordan, Solicitors, to the appellant dated the 21st of October, which is exhibited, and it says the following, having quoted the relevant reference numbers and title of the proceedings: “We have reviewed your Affidavit dated 19 August 2024 and Notice of Motion which is returnable before the High Court on 6 November next. While it is not entirely clear from the notice of motion and affidavit which you have issued, you appear to be seeking to appeal both the decision of the WRC and the Labour Court in relation to the matter. It is not permissible to appeal the decision of the WRC in the manner in which you have sought to do so. An appeal to the Labour Court can only be made on a point of law, and the provisions relating to such an appeal are contained in the Workplace Relations Act, 2015 and in the Rules of the Superior Courts, in particular Order 84C. It is evident on the face of the notice of motion and affidavit that you have issued that you have not complied with the requirements set out in Order 84C of the Rules of the Superior Courts by omitting the following information from your Notice of Motion and Affidavit:

• The Notice of Motion should be entitled in the matter of the provision of the enactment pursuant to which the appeal is made;

• The Notice of Motion should specify the relief sought, and the particular provision or provisions of the relevant enactment authorising the granting of such relief;

• The Notice of Motion should state concisely the point of law on which the appeal is made;

• The Affidavit should contain a description of you, including particulars sufficient to explain the standing of your appeal under the relevant provision of the enactment;

• The Affidavit should state the authority of the deciding body to make the

decision from which [the] appeal is made;

• The Affidavit should state the interest of any respondent given notice of the appeal in the decision from which appeal is made;

• The Affidavit should exhibit (i) a copy of any application made to the deciding body [(ii)] any official record and, if relevant, any other record of the proceedings before the deciding body and [(iii)] a copy of the decision by the deciding body.” And a copy of the Order 84C for ease of reference was provided, I understand, in that letter. The letter continued: “It is clear you have not provided any legal or other basis whatsoever to ground your appeal to the High Court. You may also wish to note that the forgoing is without prejudice to the fact that having reviewed the decision of the Labour Court in this matter, there are no errors in law which could ground an appeal to the High Court. In that regard, even if the proceedings were before the Court in full compliance with Order 84C of the Rules of the Superior Court[s], the substantive case, if indeed there is one, would be and will be vigorously defended.

We therefore write this letter for the purpose of affording you an opportunity to resolve these proceedings in a manner which will avoid any waste of Court time and expense. We can confirm that, in the event of your agreeing to discontinue these proceedings in their entirety our client will agree to seek no order as to cost (i.e. with our client agreeing not to pursue you for the costs incurred in defending the matter). That would bring the matter to an end.

In the event you are not willing to resolve this matter on the above terms, you might please note that we are instructed to vigorously defend the matter, and to seek our costs should we be successful in doing so. You will further note that given the numerous defects in the originating notice of motion and grounding affidavit and given the lack of any basis for the appeal being evident on the pleadings, it is our intention to bring a motion pursuant to Order 19, and or Order 124 of the Rules of the Superior Courts, and pursuant to the inherent jurisdiction of the Court seeking dismissal of your claim on the basis that your claim is inter alia frivolous, vexatious, and bound to fail, and not compliant with the Rules of the Superior Courts.

Should such action become necessary, we will rely on this letter in support of such an application and to fix you with the costs of same”.

45. Having considered the matter fully, I am satisfied that the appellant’s pleadings and affidavits that are before the court are irregular, defective and do not comply with the requirements set out within Order 84C of the Rules of the Superior Courts.

46. Separately, I note that my colleague, Ms. Justice Gearty, made an order on the 29th of January 2025 giving the appellant liberty to file and serve any further affidavit and replying affidavits by close of business on the 5th of March 2025. I also understand that the respondent canvassed the issue as to the appellant’s paperwork and pleadings and affidavit deficits at the callover of this matter last Thursday. One would have thought that this would prompt the appellant to make some effort to rectify these deficits but, regrettably, that has not occurred.

47. In the circumstances, I am coerced to make the following findings: 1) The appellant has failed to set out any specific error of law on the part of the Labour Court in his originating notice of motion or in the grounding affidavit accompanying it.

2) The appellant’s proceedings before the court, such as they are, are deficient, irregular and not in compliance with the Rules of the Superior Courts and, in particular, Order 84C. 3) Even if the court were minded, which I am not, to overlook these deficits, the appellant has failed to identify a relevant issue on which it can be said the Labour Court misapplied the law or erred in its interpretation of the law. 4) I propose not to make any finding with respect to the alternative leg of the respondent’s argument on the basis of the proceedings being frivolous or vexatious.

48. There are, undoubtedly, concerning aspects with respect to the appellant’s seeming willingness to make complaints of various sorts against various parties throughout this saga. I view as particularly concerning the appellant’s decision to lodge a complaint against the Director of Care several years after the event. According to the submission of the respondent, this bears the hallmark of a litigant weaponising complaints, structures and procedures in a manner that is abusive and gratuitous. I refrain from making any such finding, simply noting that there were concerning aspects under these headings in the papers.

49. I note, for the record, that the appellant has made no application to amend his notice of motion or his pleadings in any way. In all the circumstances, notwithstanding that the court has approached the issues from the point of view of taking the appellant’s pleadings and affidavits at their height, which I think is appropriate in a pre-emptive motion of this nature, I am entirely satisfied that the appellant’s appeal enjoys no reasonable prospects of success and is, in fact, doomed to fail. I find that the respondent’s submissions are correctly premised in this regard. The high threshold for striking out proceedings without carrying out an assessment on the merits has been met in this case in accordance with the strictures laid down by case law dealing with pre-emptive motions of this nature. I therefore grant the respondent’s application dismissing the proceedings and that disposes of both motions before the court and that is my ruling.

Costs

50. This is my ruling on the respondent’s application for costs on the basis that the respondent has been successful in the proceedings, and Mr. O’Mahony, counsel, has provided to the court the relevant section of the Legal Services Regulation Act of 2015. He is relying upon section 169 which provides, in subsection (1) that “A party who is entirely successful in civil proceedings is entitled to an award of costs against a party who is not successful in those proceedings, unless the court orders otherwise, having regard to the particular nature and circumstances of the case, and the conduct of the proceedings by the parties, including,…” and then there’s matters set out from (a) to (g) within subsection (1).

51. This provision was the subject of careful analysis by the Supreme Court in a case called Little v. The Chief Appeals Officer [2024] IESC 53 which I’ve had occasion to consider in recent judgments, and it is clear from the Supreme Court’s analysis, and indeed in the analysis of other courts considering sections 168 and 169, that the Oireachtas have created a power to award costs and have retained a discretion in a court with respect to costs. However, that discretion is sharply constrained by the provisions within sections 168 and 169 and ordinarily the strong default position is that the party who is entirely successful is entitled to an order of costs against a party that has been entirely unsuccessful. So, it’s appropriate to step back from the judgment and decide, well, is that the position here.

52. In my view, it is clearcut here that the respondent has been wholly successful in the motion as the proceedings are to be dismissed for the reasons given in the judgment I’ve just delivered. In my view, the respondent is entitled to assert that it comes within section 169(1) as being a party who is entirely successful in the proceedings.

53. The second question I have to consider, therefore, is ‘are there any reasons to depart from the strong default rule that should therefore follow, namely the awarding of costs, to that successful party?’. The provisions indicate that that discretion to depart from that strong default role should be exercised, having regard to the particular nature and circumstances of the case and the conduct of the proceedings.

54. I am not satisfied under those two important headings that there are features that would warrant departing from the normal strong default rule. Therefore, it seems to me that in accordance with the provisions of the statute, it should follow from the clearcut ruling the court has given in the case that the respondent is entitled to its costs of the proceedings and of the motion to dismiss, and that is the order that I propose to make. So, I will grant the costs of the application to dismiss the proceedings to the respondent, such costs to be adjudicated upon in default of agreement, and that is my ruling.

Signed: Micheál O’Higgins

Appearances:

Applicant appeared as a Litigant in Person

For the Respondent: Barry O’Mahony BL instructed by Sherwin O’Riordan LLP