Enforcement
Cases
McMahon v Enterprise Ireland & University College Dublin
DEC-E2006-045
“1. DISPUTE
1.1 This dispute concerns a claim by Ms Irene McMahon that she was discriminated against by her employer in relation to her salary on the ground of age, contrary to the provisions of the Employment Equality Act 1998. The purpose of this decision is to deal with the preliminary issue of the correct respondent in this claim.
5. INVESTIGATION AND CONCLUSIONS OF THE EQUALITY OFFICER
5.1 In reaching my conclusions in this case I have taken into account all of the submissions, both oral and written, made to me by the parties
5.2 As stated, the only matter being addressed in this decision is the preliminary matter of who the complainant’s employer was at the relevant time. However, I wish to point out at this stage that UCD is incorrect in its contention that the complaint against it is out of time. Section 77 (5) as amended states
(a) Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation…
(b) [extensions of time limit]
(c) This subsection does not apply in relation to a claim not to be receiving equal remuneration in accordance with an equal remuneration term.
As the complainant’s case refers exclusively to a claim for equal remuneration, the time limit of six months does not apply.
5.3 Enterprise Ireland is correct to say that the caselaw cited by the complainant relates to whether a person was an employee or an independent contractor, which is not at issue in this case. However, the caselaw is useful to the extent that it demonstrates that a written contract in itself is not determinative of an employment relationship. As Keane J pointed out in Denny “…it has not been shown that the appeals officer in any way misconstrued the written contract: he was, on the contrary, entirely correct in holding that he should not confine his consideration to what was contained in the written contract, but should have regard to all the circumstances of Ms McMahon’s employment.” Accordingly, I am satisfied that the employment contracts alone do not constitute proof that UCD was the complainant’s employer.
5.4 The letter from UCD, submitted at the adjourned hearing on 22 April 2005, confirmed that it was the complainant’s employer but added “Her terms and conditions were as advised by BioResearch Ireland to the University.” At the hearing, Enterprise Ireland denied this, repeating that the complainant’s contract was issued by UCD. The situation is that both respondents agree that the complainant’s employer was UCD. However, the University declined to discuss a salary increase with the complainant, saying the funding for her post came entirely from BRI and she should raise the matter with Dr W. I am satisfied that all of the evidence demonstrates that Dr W was responsible for the complainant’s rate of remuneration.
5.5 I note that Enterprise Ireland argues that there is no basis in law for the proposition that because the complainant reported to an employee of Enterprise Ireland, she was therefore an employee of Enterprise Ireland. However, section 15 of the Act states
(1) Anything done by a person in the course of his or her employment shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that person’s employer, whether or not it was done with the employer’s knowledge or approval.
(2) Anything done by a person as agent for another person, with the authority (whether express or implied and whether precedent or subsequent) of that other person shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that other person.
As I have found that the complainant’s rate of remuneration was set by Dr W, and that this was done in the course of his employment with Enterprise Ireland, I find that Enterprise Ireland is the correct respondent for the purposes of the complainant’s claim for equal pay.
6. DECISION
6.1 Based on the foregoing, I find that the appropriate respondent in the complainant’s claim under the Employment Equality Acts 1998 – 2004 is Enterprise Ireland.”
IRISH ALE BREWERIES LIMITED v NOELEEN O’SULLIVAN EDA0611
“On 30th May, 2001, the Claimant, who was employed as a Cleaner/ Canteen Assistant at the Respondent’s premises in Ballyfermot, claimed that:
(a) She was entitled to the same rate of pay, in accordance with the provisions of Section 19(1) of the Employment Equality Act 1998 (“the Act”), as was paid to two male Comparators, one employed as a yardman by the respondent in Waterford but whose name was unknown to the Complainant and the other named Comparator employed as a Yardman in Dublin, and also a number of other unnamed and unidentified Comparators on the basis that she was performing like work with the Comparators as defined in Section 7(1) (c) of the Act; and
(b) She was victimised by the Respondent contrary to the provisions of Section 74(2) of the Act.
The case was delegated on 22nd April, 2002, to an Equality Officer. Having held a preliminary hearing, conducted a work inspection, received submissions from both parties and held a formal hearing, the Equality Officer found as follows on 14th June, 2005: –
“(i) the claim citing unknown comparators is not a valid claim under the 1998 Act;(ii) the claim citing the Waterford Yardman is not a valid claim under the 1998 Act;
(iii) Diageo did not discriminate against Ms Noeleen O’Sullivan on the ground of gender in relation to her pay, in terms of section 19 of the Employment Equality Act, 1998, in respect of her claim citing a named male comparator at the Ballyfermot location;”In this context, the Equality Officer, having carried out a work inspection, found that when considering whether there was “like work” within the meaning of the Act, the jobs of the Complainant and the Comparator were found to be comparable or equivalent under the headings of skill, mental effort and responsibility. However, she found that the Comparator’s working conditions were more difficult and that the physical requirements on the Comparator were greater.
and
“(iv) the respondent did not victimise the complainant.”
The Complainant appealed this Decision to the Labour Court on 21st July, 2005. A Labour Court hearing took place on 28th February, 2006.
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The Equality Officer found that there was equivalent skill, mental effort and responsibility involved in the jobs of the Complainant and the named Comparator. The Complainant contended that, in terms of the physical effort expended by her and her working conditions, the conditions were also equivalent.In regard to physical effort, the Complainant contended that the Equality Officer laid too much stress upon the lifting and rolling of a large number of heavy kegs each day by the Comparator. The facts, according to the Complainant, are that:
the Comparator only rolled and straightened kegs – he did not actually lift them. This, it is submitted, is no more demanding than the onus on the Complainant to lift buckets of very hot water and heavy cleaning equipment from location to location and to lift and rearrange furniture.
In regard to working conditions, the Equality Officer found that the working conditions of the Comparator were more difficult because he worked outdoors in all weather conditions all year round, as opposed to the Complainant the majority of whose time was spent working indoors in an office / canteen environment. However, the Complainant submitted that she carried out some of her duties in the ladies’ toilets and some in the kitchen. She was exposed to hazards in operating machinery, in moving furniture, in carrying buckets of water and in dealing with boiling water and hot foods and pots. These conditions would be comparable to those of the Comparator.
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Findings: –
Burden of Proof .
The first question which must be considered by the Court is how the burden of proof should be applied in this case. There are three statutory provisions which must be taken into account in considering this question, namely, Council Directive 97/80/EC on the Burden of Proof in Cases of Discrimination Based on Sex, and Sections 76 and 81 of the Employment Equality Act, 1998.
The Burden of Proof Directive, which is now transposed at Section 85A of the Act, as amended, provides, in effect, that the probative burden of establishing the absence of discrimination shifts to the Respondent where the Complainant proves facts from which discrimination may be inferred. The established test for applying this rule of evidence is that formulated by this Court inMitchell v Southern Health Board[2001] ELR 201. This requires the Complainant to prove the primary facts upon which they rely in asserting that an inference of discrimination should be drawn. It is then a matter for the Court to consider if those facts are of sufficient significance to raise the inference contended. There is no closed nor exhaustive list of factors which can be relied upon to shift the probative burden. What will be regarded as sufficiently significant for this purpose will depend upon the circumstances of the case.
In the instant case the Complainant contends that her post of Cleaner was uniquely excluded from the grading structure of the Respondent. She asserts, and the Court accepts, that had her post been so included her rate of pay could not have been less than that of her Comparator who was on the lowest grade within the structure. The argument was advanced on behalf of the Complainant that since cleaning is quintessentially a female occupation, the exclusion of her post from the grading structure evinced a disposition on the part of the Respondent to undervalue women’s work. In the Court’s view the unexplained exclusion of the Complainant’s post from the grading structure is a fact from which discrimination may be inferred. In that regard it is settled law that an absence of transparency in an employer’s pay determination system can be sufficient to raise a prima facie case of discrimination (seeHandels- og Kontorfunktionaerernes Forbund I Danmark v Dansk Arbejdsgiverforening, acting on behalf of Danfoss[1989] ECR 3199. In that case, however, the question of like work was not at issue and the authority of the case is thus confined to situations in which men and women are engaged in like work.
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Section 76 of the Act is modelled on Section 74 of the British Sex Discrimination Act 1975. The jurisprudence of the British Courts indicates that a failure of an employer to supply information requested pursuant to that statutory provision is a fact from which discrimination may be inferred for the purposes of shifting the probative burden under the Burden of Proof Directive. This was made clear by the Court of Appeal for England and Wales inIGEN LTD (formerly Leeds Careers Guidance) and Others (appellants) v. WONG[2005] IRLR 258. A similar approach was earlier taken by the EAT inBarton v Investec Henderson Crosthwaite Securities Ltd[2003] IRLR 332 EAT and by the House of Lords inGlasgow City Council v Zafar[1998] IRLR 36.
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Findings of Fact
On the evidence adduced the Court is satisfied that the following job descriptions are correct:
(a)Job Description of the Complainant
Title: Cleaner/Canteen Assistant.
Salary per week: £400.92(€509.06), plus service pay of £1.90(€2.41) and daily operational allowance of £8.30(€10.54).
Hours: 9am to 4pm, Monday to Friday.
Qualifications: None required.
Duties:
•Cleaning Kitchen area, including washing pots and pans, cleaning oven, loading and unloading dishwasher;
•Cleaning canteen;
•Cleaning ladies toilet;
•Cleaning doctor’s surgery;
•Vacuuming offices and hallways;
•Washing and sweeping and polishing floors;
•Cleaning bain-marie, cooker hoods etc on a weekly basis;
•Cleaning paintwork, mirrors, walls etc as necessary;
•Ordering cleaning materials and condiments;
•Assisting with serving food, as required.
(b)Job Description of the Named Comparator
Title: Yardman.
Salary per week: £557.03(€707.28), plus service pay of £2.54 (€3.23)and daily operational allowance of £30.40(€38.60), annual stay-back allowance of £409.93(€520.50) and weekly turnaround allowance of £83.62(€106.18).
Hours: 8am to 3pm, Monday to Friday.
Qualifications: None required.
Duties:
•Organising kegs into discrete batches for delivery;
•Organising kegs into manageable groups for lifting by forklift;
•Supervising off-loading of returned kegs and detecting product tampering;
•Ensuring the integrity of the batch system;
•Recording key batch numbers to faciliate stock control and administration records;
•Sweeping yard and cleaning up dirt/rubbish;
•Cleaning men’s toilet.
1. The Court accepts that the Complainant was exposed to dirt and hazards in having to clean toilets, deal with boiling water, hot foods and utensils and operate kitchen machinery. The Yardman also came into contact with dirt, waste, heavy machinery and sometimes inclement weather through which he had to work. However, having carefully reviewed the available evidence, the Court is of the opinion that the working conditions of the Complainant are not greatly different to those of the Comparator, while occasionally less onerous.
2. Even if the Comparator was only rolling and straightening kegs, as the Complainant’s evidence indicated, rather than actually lifting them as contended by the Respondent (and the only direct evidence on this point is that of the Complainant), this actual physical effort required of the Comparator would be greater than that required by the Complainant in lifting buckets of water and cleaning kitchen machinery. However, the Court is of the view that, when making comparisons of this type, it is not sufficient to compare just the actual physical effort involved but the relative physical effort involved. For instance, a woman lifting 30% of her body weight may expend the same physical effort as a man lifting 30% of his body weight. Given the different physical demands which can be placed on men and women, the Court finds that in this case the relative level of physical effort is overall roughly equivalent.
3. In terms of responsibility, the Complainant was responsible for cleaning the canteen and the Doctor’s surgery. The Court is satisfied that the need to ensure a high standard of hygiene in both locations places a degree of responsibility on the Complainant that has no parallel in the case of the Comparator.
4. The Court is further satisfied that the other elements of the two jobs – skill and mental effort are roughly equivalent and, overall, the similarities outweigh the differences. (See the recent decision of the House of Lords inMatthews & Others V Kent & Medway, Towns Fire Authority,[2006] IRLR 367, per Baroness Hale).
5. The Court is therefore satisfied that the Complainant was engaged in work of equal value with that of the Dublin Yardman within the meaning of Section 7(1)( c) of the Act. It follows that the Court must hold that the Complainant and the Comparator were engaged in like work within the meaning ascribed to that term by Section 7.
6.Bonuses:No evidence was put before the Court as to why the non-productivity based allowances paid to the Complainant and to the Comparator amounted (in November 2000) to £151.99(€192.99) for the Comparator and £41.47(€52.66) for the Complainant, an unexplained difference of almost £110.00(€139.67). This in itself could give rise to an inference of discrimination.
8.Grading:No satisfactory evidence was given as to why the Complainant was not graded on the Company’s grading system but was paid £156.00(€198.08) less than a Comparator who was on the lowest grade on the system. This again would give rise to an inference of discrimination.
Victimisation
On the evidence as presented to it: –
(i) The Court finds that the allegations are out of time and that no time extension was sought. The matter can be disposed of on that basis.
(ii) However, for the sake of clarity, the Court finds that there is no evidence to support the Complainant’s allegation that a derogatory remark was made against her. Equally, there is no evidence to support her claim that the respondent threatened to withdraw from her the sum of £2,830(€3,593.36). In consequence, the Court can find no evidence of victimisation or penalisation of the Complainant.
Determination:
For the reasons set out above the Court is satisfied that the Complainant’s claim for equal pay is well-founded. To that extent she is entitled to succeed in this appeal and the Decision of the Equality Officer should be reversed.
There is a number of remedies open to the Court under Section 82 of the Act. Having carefully reviewed the evidence and the circumstances of this particular case and having regard to the time at which this matter was first raised by the Complainant the Court is of the view that the appropriate remedy in this case is an award of compensation for the effects of the discrimination. In all the circumstances of this case, the Court has determined that the compensation which is fair and equitable should be measured at €25,000. An award in her favour is made in that amount.For the reasons set out elsewhere in this Determination the Court is satisfied that the Complainant’s claim of victimisation is not well- founded. The Decision of the Equality Officer on that point is affirmed.”
A Complainant v A Company
DEC-E/2001/023
“5. INVESTIGATION AND CONCLUSIONS OF THE EQUALITY
OFFICER
5.1 In reaching my conclusions in this case I have taken into account all of the submissions, both oral and written, made to me by the parties.
5.2 The respondent’s submission proposed many reasons why these proceedings should have been terminated prior to the hearing. In the first place, it stated that the case was clearly one of constructive dismissal, and therefore exceeded the statutory remit of the Director.
Section 77 of the 1998 Act provides
(2) If a person claims to have been dismissed-
(a) in circumstances amounting to discrimination by another in contravention of this Act…
then…a claim for redress for the dismissal may be brought to the Labour Court and shall not be brought to the Director.
The respondent is correct to say that complaints of discriminatory dismissal are outside the jurisdiction of the Director. However, section 77 (1) of the Act provides
A person who claims-
(a) to have been discriminated against by another in contravention of this Act…may…seek redress by referring the case to the Director.
The case referred by the complainant alleged that she had suffered discrimination – based on her gender – during the course of her employment by the respondent, and made no claim for redress for discriminatory dismissal. I am therefore satisfied that this matter may be investigated in accordance with the statutory remit of the Director.
5.3 The respondent also claimed that the application by the complainant amounted to abuse of process, a violation of the respondent’s rights to Constitutional justice, a risk of double jeopardy and a violation of its right to a fair hearing, and was oppressive in all the circumstances.
The 1998 Act contains very detailed provisions preventing many different types of duplicate proceedings in different fora in respect of the same facts. Since this specific situation is not covered, and so many less common situations are, I am satisfied that the 1998 Act provides no apparent obstacle to the simultaneous referral of a complaint of discriminatory treatment to the Director and a complaint of discriminatory dismissal to the Labour Court. Insofar as the other matters raised fall within my jurisdiction, I am satisfied that the situation is permitted by statute and that no unfairness is involved.
5.4 The issue to be determined is whether this complaint is outside the time limits specified by the 1998 Act. Section 77 (5) of the Act provides that …a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of the occurrence or, as the case may require, the most recent occurrence of the act of discrimination or victimisation to which the case relates.
As the complainant’s referral was received on 28 April 2000, the most recent occurrence of the alleged act of discrimination must have been no earlier than the date commencing the six-month period which concludes with 28 April 2000.
5.5 The complainant argued that the events of 29 October “being the day on which [she] contends she was constructively dismissed” cannot be isolated from the context of her employment as a whole, and in particular cannot be separated from the events of 28 October, the day on which she claimed the company secretary referred to her in a gender-specific way as “Mrs Hankie”. She said that her allegations were of patterns of discriminatory treatment throughout the history of her employment with the respondent, and that it was a futile exercise to segment specific incidents. No particular claim is made of a discriminatory incident occurring on 29 October, and the complainant argued that, even if 28 October is found to be the most recent date, the complaint was still referred within time, as the six-month period starting on 28 October 1999 concluded on 28 April 2000.
5.6 At the hearing, the respondent referred to the High Court case of McGuinness v Armstrong Patents (1990 1 IR 289) in support of its contention that the complaint was out of time. That case involved an action claiming damages for negligence, and the relevant time limit was specified by the Statute of Limitations Act, 1957, which provided that such an action “shall not be brought after the expiration of three years from the date on which the cause of action accrued”. McMahon J described it as a well-settled rule of law in England that the date of the event is excluded in computing the period, where a period of time in a statute is defined as being “from” a particular event. On that basis, a period of three years from the accrual of the cause of action would expire on the third anniversary of the accrual. The judge said, however, that he could not see any way of achieving uniformity between that rule of law and section 11 (h) of the Interpretation Act, 1937 which states Where a period of time is expressed to begin on or be reckoned from a particular day, that day shall, unless the contrary intention appears, be deemed to be included in such period, and, where a period of time is expressed to end on or be reckoned to a particular day, that day shall, unless the contrary intention appears, be deemed to be included in such period…
5.7 The complainant accepted there were similarities with the McGuinness case, but said it was not identical. It dealt with a different statutory provision and she argued that the Equality Officer was not bound by the ruling in the interpretation of section 77 (5) of the 1998 Act. I am satisfied that this is not the case, and that a six-month period commencing on 28 October ends on 27 April.
5.8 I accept that, when investigating an allegation of discriminatory treatment, an Equality Officer may consider the employment as a whole, and make determinations on incidents which occurred prior to the relevant six-month period. However, in this instance I am not investigating such an allegation. I am only concerned with the time issue, and I must have regard to the fact that the Act states specifically that a complaint may not be referred after the end of a period of six months from the date of the most recent occurrence. The provision is unambiguous, and I am therefore satisfied that a complaint received on 28 April 2000, where the most recent occurrence of an alleged discriminatory act was 28 October 1999, is outside the specified time limit.
6. DECISION
6.1 Based on the foregoing, I find that the referral of this case was outside the time
specified in section 77 (5) of the Employment Equality Act, 1998.”
The Minister for Finance v The Civil and Public Service Union & Ors
[2006] IEHC 145
Laffoy J.
“
“The primary argument advanced by the appellant in support of his contention that the 2004 decision should be set aside was that, as a matter of law, ignorance of one’s legal position, as distinct from the ignorance of the underlying facts which might constitute the alleged wrongful act, cannot as a matter of law constitute justification for an extension of the time limit stipulated in s. 19(5). Counsel for the appellant cited two authorities, both of which raise the same issue, in support of that proposition: the decision of this Court (Carroll J.) in Murphy v. Ireland [1996] 3 I.R. 307; and the decision of the Supreme Court, upholding a decision at first instance of Carroll J., in McDonnell v. Ireland [1998] I I.R. 134. The issue in each case was whether the plaintiff was barred by the provisions of s. 11(2) of the Act of 1957 from pursuing a claim against the State arising from the purported forfeiture of an office he held in the public servicefollowing a conviction of a scheduled offence in an action initiated more than six years after the purported forfeiture but after the Supreme Court had held in Cox v. Ireland [1992] 2 I.R. 503 that s. 34 of the Offences Against the State Act, 1939, under which the purported forfeitures were effected, was unconstitutional. The relevant portion of s.11(2)(a) of the Act of 1957 provides:
“… an action founded on tort shall not be brought after the expiration of six years from the date on which the cause of action accrued.”
In each case it was held that the plaintiff’s claim was barred by virtue of that provision.
The time limitation at issue in the Murphy and McDonnell cases differs from the provision at issue here in that it imposes an absolute bar on the bringing of an action when the stipulated period has expired and does not provide for extending time. The issues which the courts had to address in each of the cases were whether the type of action being pursued came within the Act of 1957 at all and, if it did, when the cause of action accrued, that is to say, when time started running. The instant case unquestionably comes within s. 19(5) and, as I have stated, the parties are in agreement as to when time started running. While the content of the judgments in the Murphy and McDonnell cases was determined by the issues that had to be addressed, for present purposes what is important is to identify the underlying rationale of the judgments.
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It seems to me that the underlying rationale of the Murphy and McDonnell cases, as manifested in the passages from the judgments quoted above, is that, in the absence of evidence that the plaintiff was under a disability of a type that prevents the statutory limitation period running, the absence of subjective knowledge on the part of the claimant of his or her legal or constitutional rights, or that an action is likely to be successful, does not prevent a cause of action accruing and time running under the Act of 1957.
In the 2004 decision the Labour Court considered the decision in the Murphy case, but concluded that it was not relevant to the issue it was concerned with because, unlike the Act of 1957, there is express provision in s.19(5) for the enlargement of time where reasonable cause is shown. While such a distinction exists, in my view, it does not render the decisions in the Murphy and McDonnell cases irrelevant to the ascertainment of the intention of the Oireachtas in enacting s. 19(5).
It was accepted by the parties that O. 84, r. 21 of the Rules of the Superior Courts, 1986, (the Rules) which delimits the time for bringing an application for leave to apply for judicial review, is analogous to s. 19(5). Sub-rule (1) of O. 84, r. 21 provides as follows:
“An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose, or six months where the relief sought is certiorari, unless the court considers there is good reason for extending the period within which the application shall be made.”
In the 2004 decision, the Labour Court observed that a relatively short time limit is provided in O. 84, r. 21, with discretion in this Court to extend the time where there is “good reason to do so”. It is clear from reading the 2004 decision that the Labour Court accepted that the authorities on O. 84, r. 21 could be applied by analogy to s. 19(5). In particular, the Labour Court quoted, and, indeed, applied the seminal passage in the judgment of Costello J., as he then was, in O’Donnell v. Dun Laoghaire Corporation [1991] I.L.R.M. 301 (at p. 315) in which he construed the term “good reasons” as follows:
“The phrase ‘good reasons’ is one of wide import which it would be futile to attempt to define precisely. However, in considering whether or not there are good reasons for extending the time I think it is clear that the test must be an objective one and that the court should not extend the time merely because an aggrieved plaintiff believed that he or she was justified in delaying the institution of proceedings. What the plaintiff has to show (and I think the onus under Order 84, rule 21 is on the plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay. There may be cases, for example where third parties had acquired rights under an administrative decision which is later challenged in a delayed action. Although the aggrieved plaintiff may be able to establish a reasonable explanation for the delay the court might well conclude that his explanation did not afford a good reason for extending the time because to do so would interfere unfairly with the acquired rights (State (Cussen) v. Brennan [1981] I.R. 181).”
In De Roiste v. Minister for Defence [2001] 1 IR 190, on the appeal to the Supreme Court, Fennelly J. stated (at p. 216) that the expression “good reasons” was well explained in that passage. More recently in Dekra Éireann Teo. v. Minister for the Environment [2003] 2 IR 270, which concerned the application of the time limit for initiating an application for review of a decision to award a publiccontract, the Supreme Court approved that passage and applied it in analysing the meaning of “good reason” in O. 84A, r. 4 of the Rules.
Counsel for the respondents accepted that the Labour Court was correct in applying the reasoning of Costello J. in the O’Donnell case on the meaning of “good reasons” by analogy to the meaning of “unless reasonable cause is shown” in s. 19(5). Where the parties diverged was as to how it should be applied. Counsel for the respondents laid particular emphasis on the fact that Costello J. derived assistance from the decision of the Supreme Court in State (Furey) v. Minister for Defence [1988] I.L.R.M. 89 in applying the principles he had enunciated, in the passage which I have quoted, to the facts before him. Costello J. observed that the evidence established that, as regards part of the period of delay, Mr. O’Donnell was contesting his liability to pay water charges not through the courts but with the assistance of three different public representatives and queried whether that course of conduct was a “good reason” within the meaning of O. 84, r. 21 which would have justified the court extending the time for applying for judicial review of the relevant orders imposing the water charges, had the proceedings been brought by way of judicial review rather than by plenary action. Having stated that assistance in answering the question was to be found in the Furey case, he continued as follows (at p. 317):
“There the applicant had been a member of the Defence forces. He was discharged on 15th August, 1975. He instituted proceedings four years later for an order of certiorari to quash his discharge. He was successful in the High Court and the Minister appealed. One of the grounds of appeal was that the application should have been refused on the grounds of delay. This was rejected by a majority decision. The evidence of the plaintiff was to the effect that he did not realise that he could pursue his complaint through the court, that he could not afford legal advice, that over a four year period he had written many letters to the Department, to local members of parliament and to successive Ministers for Defence. On these facts it was concluded that the applicant had not disentitled himself by his delay to the remedy he sought.
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As the 2004 decision illustrates, what was correctly deduced by the Labour Court from the authorities in which O. 84, r. 21 and O. 84A, r. 4 were being applied is that the onus is on the respondents in the instant case to establish that reasonable cause has been shown and the respondents must not only establish reasons which explain the delay but also which afford a justifiable excuse for it. However, I do not think that the Labour Court was correct in its conclusion that the imperative which applies in the area of public procurement that a review of a contract should be initiated as quickly as possible, which was recognised in the Dekra case, does not apply to issues in relation to discrimination in the sphere of employment under the Directive or the Act of 1977. As has been argued on behalf of the appellant in earlier stages of this dispute, the treatment of one employee in this type of situation may have consequences for other employees. Hence, the short limitation period provided for in s. 19(5).
The respondents have not pointed to any Irish authority in which ignorance of legal rights has been found to have been a justifiable excuse for delay in initiating proceedings. The appellant has pointed to one case in which this Court (Morris J., as he then was) held that there is no authority for the proposition that a plaintiff was entitled to postpone bringing a case until evidence was available which will copper fasten the matter in his or her favour: McDonald v. McBain [1991] 1 I.R. 284.
Counsel for the respondents relied on a number of English authorities which, it was submitted, support the respondents’ position.
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21. In accordance with that approach it has repeatedly been held that when deciding whether it was reasonably practicable for an employee to make a complaint to an employment tribunal, regard should be had to what, if anything, the employee knew about the right to complain to the employment tribunal and of the time limit for making such a complaint. Ignorance of either does not necessarily render it not reasonably practicable to bring a complaint in time. It is necessary to consider not merely what the employee knew, but what knowledge the employee should have had had he or she acted reasonably in all the circumstances. So far as that question is concerned there is a typically lucid passage in the judgment of Brandon L.J. in Walls Meat Company Limited v. Khan [1979] I.C.R. 52, 61 which I would commend:
‘With regard to ignorance operating as a similar impediment, I should have thought that, if in any particular case an employee was reasonably ignorant of either (a) his right to make a complaint of unfair dismissal at all, or (b) how to make it, or
(c) that it was necessary for him to make it within a period of three months from the date of dismissal, an industrial tribunal could and should be satisfied that it was not reasonably practicable for his complaint to be presented within the period concerned.
For this purpose I do not see any difference, provided always that the ignorance in each case is reasonable, between ignorance of (a) the existence of the right, or (b) the proper way to exercise it, or (c) the proper time within which to exercise it. In particular, so far as (c), the proper time within which to exercise the right, is concerned, I do not see how it can justly be said to be reasonably practicable for a person to comply with a time limit of which he is reasonably ignorant.
While I do not, as I have said, see any difference in principle in the effect of reasonable ignorance as between the three cases to which I have referred, I do see a great deal of difference in practice in the ease or difficulty with which a finding that the relevant ignorance is reasonable may be made. But, where a person is reasonably ignorant of the existence of the right at all, he can hardly be found to have been acting unreasonably in not making enquiries as to how, and within what period, he should exercise it. By contrast, if he does not know of the existence of the right, it may in many cases at least, though not necessarily all, be difficult for him to satisfy an industrial tribunal that he behaved reasonably in not making such enquiries.’
22. …
23. …
24. The third proposition is unquestionably one of law. It is, expanding it a little, that if an employee takes advice about his or her rights and is given incorrect or inadequate advice, the employee cannot rely upon that fact to excuse a failure to make a complaint to the employment tribunal in due time. The fault on the part of the adviser is attributed to the employee. …”
……………..
The decision of the Court of Appeal in the Marks & Spencer case was not concerned with ignorance of the law in the sense which the appellant asserts is the foundation of the respondents’ case here – that the respondents were ignorant of the legal consequences of the factual situation in which they found themselves, that is to say, that it might constitute illegal discrimination on the grounds of sex contrary to the Directive and the Act of 1977. That decision was concerned with ignorance of the law as it applied to the claimant in the sense that under the law a complaint could be brought by her to an employment tribunal, but it had to be brought within a specific time limit and she was ignorant as to what that time limit was. It is not in issue in this case that the respondents, or the claimants whom they represent, were ignorant of their entitlement to refer a dispute in relation to discrimination to the Labour Court, or the time limit within which such dispute was required to be brought by virtue of s. 19(5), or both the entitlement and the time limit.
However, another authority relied on by the plaintiff does raise an issue of ignorance of the law in the sense in which it is raised in this case. That is the decision of the Employment Appeals Tribunal in Mills and Crown Prosecution Service v. Marshall [1998] IRLR 494. In that case, Ms. Marshall, a transsexual, was offered a post with the Crown Prosecution Service in 1993 when she was a man. When she explained to Barbara Mills, the Director of Public Prosecutions, that she intended to take up the position as a woman, the offer was withdrawn. She did not bring a sex discrimination complaint in respect of this until after the decision of the European Court of Justice in P v. S on 30th April, 1996, in which it was held that the Directive precludes discrimination against a transsexual for a reason related to gender assignment. The relevant statutory provision provided that an industrial tribunal should not consider a complaint unless it was presented to the tribunal before the end of a period of three months beginning when the act complained of was done, but the tribunal was given a discretion to extend the time limit “if, in all the circumstances of the case, it considers that it is just and equitable to do so”. In delivering the decision of the Employment Appeals Tribunal, the President, Mr. Justice Morrison, rejecting an argument that to allow Ms. Marshall to present her complaint would offend against the principle of legal certainty, went on construe that provision (starting at para. 21) stating as follows:
“… the court’s power to extend time is on the basis of what is just and equitable. These words could not be wider or more general. The question is whether it would be just or equitable to deny a person the right to bring proceedings when they were reasonably unaware of the fact that they had the right to bring them until shortly before the complaint was filed. That unawareness might stem from a failure by the lawyers to appreciate that such a claim lay, or because the law ‘changed’ or was differently perceived after a particular decision of another court. The answer is that in some cases it will be fair to extend time and in others it will not. The industrial tribunal must balance all the factors which are relevant, including, importantly and perhaps crucially, whether it is now possible to have a fair trial of the issues raised by the complaint. Reasonable awareness of the right to sue is but one factor. …
…………….
As a general proposition, in my view, the English authorities, which were decided in the context of different statutory criteria for extending the limitation period than apply in the instant case, do not provide guidance as to how s. 19(5) should be construed or applied. In particular, the statutory criterion which governed the issue in Mills and the Crown Prosecution Service v. Marshall, whether it was “just and equitable”, is a much broader and more fluid concept than the concept of “reasonable cause” and confers a wider discretion. Circumstances which would justify a finding that initiating a claim was not reasonably practicable would not necessarily amount to reasonable cause shown for not initiating a claim within a stipulated period. Apart from those differences, the issue for determination by the Labour Court and the issue which arises on this appeal has to be determined in the light of the jurisprudence of the Irish courts on limitation periods.
Conclusions
The answer to the question of law posed in the order of 13th December, 2002 turns on the proper construction of s. 19(5). Put another way, the question to be answered is whether, in enacting s. 19(5), the Oireachtas intended that the expression “reasonable cause” should encompass, as a justifiable excuse for delay, a situation in which a person who, with the knowledge of the material underlying facts, desisted from pursuing a claim of discrimination until he or she became aware, in consequence of publicity surrounding a court decision in point, that the claim, if pursued, would be likely to be successful.
In my view, it must be assumed that the Oireachtas intended that the jurisprudence which generally governs time limits would be applicable to s. 19(5). Although not directly in point here, the established jurisprudence in this jurisdiction is that knowledge or discoverability of a material fact is not the trigger which sets a statutory limitation period running, unless the legislature expressly so provides. This is clearly illustrated by the decision of the Supreme Court in a medical negligence case, Hegarty v. O’Loughran 1 I.R. 148, which is referred to in the judgment of Morris J. in McDonald v. McBane. Morris J. quoted the following passage from the judgment of Finlay C.J. at p. 157:
“I would, therefore, conclude that the proper construction of this sub-section is that contended for on behalf of the defendants and that is that the time limit commenced to run at the time when provable personal injury, capable of attracting compensation, occurred to the plaintiff which was the completion of the tort alleged to be committed against her.”
Subsequent to that decision, the Oireachtas enacted the Statute of Limitations (Amendment) Act, 1991 and effectively reversed the decision by the enactment of s. 3(1) which provides:
“An action … claiming damages in respect of personal injury to a person caused by negligence, nuisance or breach of duty … shall not be brought after the expiration of three years from the date on which the cause of action accrued or the date of knowledge (if later) of the person injured.”
That provision was amended by s. 7(2) of the Civil Liability and Courts Act, 2004. As was submitted on behalf of the appellant, the foregoing is an example of the Supreme Court setting its face against a subjective interpretation of limitation periods and the Oireachtas making a positive intervention to allow that in relation to specific causes of action in limited circumstances.
Further, under the established jurisprudence in this jurisdiction lack of knowledge or awareness on the part of a claimant, or the absence of a legal precedent which indicates, that, as a matter of law, a claim will have a successful outcome does not prevent a statutory limitation period from starting to run. That is illustrated by the decision of this Court in the Murphy case and the decision of the Supreme Court in the McDonnell case.
In s. 19(5) the Oireachtas has prescribed a relatively short limitation period, albeit one which can be extended where a claimant establishes “reasonable cause”. The expression “reasonable cause”, in my view, broadly speaking connotes similar factors and, in particular, similar conduct on the part of the claimant, as is connoted by the expression “good cause” in O. 84, r. 21. In relation to the core issue which arises in the instant case, it seems to me that, given the jurisprudential backdrop in relation to prescribing time limits generally, which I have outlined, it cannot have been the intention of the Oireachtas that failure to pursue a claim which has crystallised until a legal precedent is in place which clarifies the law and indicates that the claim is likely to be successful, followed by prosecution of the claim when the precedent is publicised, should constitute “reasonable cause” within the meaning of s. 19(5). In short, while the delay on the part of the claimants in referring their claims to the Labour Court has been explained, in my view, a justifiable excuse for the delay has not been established.
In setting out the conclusions of the Labour Court earlier, I adverted to the fact that the appellant takes issue with certain findings of fact incorporated in the Labour Court’s conclusions. The appellant’s submissions embraced arguments which go to what the state of knowledge of the claimants as to the sustainability of their claims actually was, or ought to have been, suggesting that the claimants were, or should have been, aware of the illegality of the job-sharing scheme having regard to the Directive and the Act of 1977. An argument relied on in this context was the fact that three of the claimants raised the issue of equality discrimination in relation to the implementation of the job-sharing scheme and, in particular, the pro rata calculation of service: one in connection with her entitlement to maternity leave, another in relation to the payment of an IT gratuity and the third in relation to promotion. It was also argued that, in any event, prior to the decision of the European Court of Justice in Gerster a certain level of uncertainty surrounded the legality of a system whereby the service of job-sharers for promotion purposes was calculated on a pro rata basis, reference being made, in particular, to the decisions of the European Court of Justice in Bilka-Kaufhaus GmbH v. Weber von Hartz [1986] ECR 1607 and in Nimz v. Freie und Hansestadt Hamburg [1991]
ECR 1-297. I consider it unnecessary to address these arguments. In my view, the resolution of the core issue in this case involves a fundamental point of principle. The state of the knowledge or awareness which the claimants had, or which they or their unions ought to have had, is irrelevant in that resolution.
Finally, the limitation period stipulated in s. 11(2)(a) of the Act of 1957 has no direct application to the process initiated by the respondents under s. 19 of the Act of 1977, although it would have relevance if the claimants were to institute proceedings in a court for breach of statutory duty of breach of the State’s obligations under Community law.
Decision
The 2004 decision is set aside.”
County Louth Vocational Educational Committee -v- Equality Tribunal
[2016] IESC 40
Supreme Court MacMenamin J.
1. The appellant now named in the title herein is the successor-in-title to the County of Louth Vocational Education Committee, the applicant, originally named in the proceedings. On occasion, therefore, this judgment contains references to the appellant as “the V.E.C.”, where context or understanding so requires.
2. On the 24th July, 2009 the High Court, (McGovern J.), delivered judgment, dismissing the appellant’s application for judicial review against the respondent (“the Tribunal”). The appellant appealed that judgment to this Court. It seeks to challenge what it claims was an unlawful decision on jurisdiction in an investigation conducted by Valerie Murtagh, an Equality Officer delegated by the Director of the Tribunal, under the Employment Acts, 1998 to 2004 (“the Acts”).
3. The origins of the application lie in complaints to the respondent by the notice party, Pearse Brannigan (Mr. Brannigan). Mr. Brannigan was formerly employed as a teacher by the appellant. He complained of discrimination based on his sexual orientation. Ms. Murtagh, (“the Officer”) was delegated to carry out an investigation concerning the complaints. She embarked on an investigation into issues raised by Mr. Brannigan concerning his former employment. Mr. Brannigan set out these complaints, first, in an initial ‘EE1’ form submitted to the Tribunal, and, later, in correspondence to that statutory body. The issue before the Court is as to parameters of that inquiry.
4. In the judicial review application, the appellant, among other claims, sought declarations to the effect that the Officer be limited to investigating complaints of discrimination made by Mr. Brannigan which had been lawfully referred to it, that is, matters said to have occurred within a period of 6 months, prior to 4th August, 2006, the date the Officer received Mr. Brannigan’s first complaint. The appellant claimed it had not been accorded fair procedures in the process of the investigation into the complaints. In dismissing the application, McGovern J. held that the Officer had not made a final determination on the issue of the temporal limit of the complaint; and that the procedures which she had adopted were not unfair, or contrary to natural or constitutional justice.
5. The appeal before this Court is confined to the first, temporal limit, or “jurisdictional” issue. No point is now raised on the fair procedures question. The appellant seeks, rather, declarations, either to the effect that the Officer acted ultra vires, in purporting to conduct an investigation falling outside the lawful terms of the original complaint made by Mr. Brannigan, or, alternatively, an order requiring the Officer to confine her investigation to the issues set out in Mr. Brannigan’s original complaint of the 4th August, 2006. The case is made that the time limits set out in the Acts debar her from investigating any other matters said to have occurred much earlier, and which were not described in the EE1 form. The appellant also seeks an injunction by way of judicial review, staying the investigation being conducted into the alleged discriminatory acts, save insofar as the investigation is confined to the two allegations contained in the complaint which Mr. Brannigan made to the Tribunal on the 4th August, 2006.
6. It is a matter of concern and regret that the matters raised in this appeal took place some considerable time ago. Nonetheless, the fact remains that there is still an investigation in being, and the progress of that investigation has remained in suspense pending the outcome of these proceedings. It is necessary now to look at the legal background to this application.
7. This judgment, insofar as it addresses matters before the Officer, addresses matters which are not in controversy. For reasons explained in more detail later, the judgment is not to be interpreted as expressing any view on the factual material to be considered in the investigation, or on the legal issues in controversy.
8. It will also be noted that, now, the Workplace Relations Commission has, among other functions, now superseded the Equality Tribunal (See Workplace Relations Act, 2015, s.83(1)(c)). But, the Acts of 1998 – 2004, relevant to this appeal, must still be seen in their broader purpose and context. The issue of equality in employment has been the subject matter of a number of Directives, inter alia, Council Directive 2000/78/EC of 27th November, 2000, which established a general framework for equal treatment in employment and occupations. Article 9 of that Directive provides as follows:
“Defence of rights
1. Member States shall ensure that judicial and/or administrative procedures, including where they deem it appropriate conciliation procedures, for the enforcement of obligations under this Directive are available to all persons who consider themselves wronged by failure to apply the principle of equal treatment to them, even after the relationship in which the discrimination is alleged to have occurred has ended.”
9. By its long title, the 1998 Act sought to promote equality between employed persons, and to make provision with respect to discrimination in, and in connection with, employment, vocational training, and membership of certain bodies. The legislation was also intended to make provision in respect of harassment in employment and in the workplace.
10. The 1998 Act pre-dated the E.U. Directive. Nevertheless, the Act, and amendments subsequent to the year 2000, sought to implement these same principles, and are part of a standalone code.
11. Section 79(1) of the 1998 Act, as amended, created a duty on the Director to investigate the case, and, where mediation failed, went on to provide that the Director should “investigate the case and hear all persons appearing … to be interested and desiring to be heard.” Section 79(1) was subsequently substituted by the Civil Law (Miscellaneous Provisions) Act, 2011, s.24; the substituted provision does not now contain the words “and desiring to be heard”.
12. Section 77 of the Act of 1998, as substituted by s.46 of the Act of 2004, and the Schedule thereto, provided:
“(1) A person who claims –
(a) to have been discriminated against or subject to victimisation,
(b) to have been dismissed in circumstances amounting to discrimination, or victimisation,
(c) not to be receiving a remuneration in accordance with an equal remuneration term
(d) not to be receiving a benefit under an equality clause,
may, subject to subsections (3) to (9), seek redress by referring the case to the Director.”
13. A complaint, referred under this section, was to be delegated by the Director of the Tribunal (“the Director”) to an Equality Officer. Such complaint might, thereafter, become either the subject of mediation, investigation, or, ultimately, after investigation, a decision by such officer.
14. It is clear that the process was intended to provide for a single, expeditious, hearing process, into all relevant matters, conducted without undue formality. Section 79(1A) of the 1998 Act, as amended, provided that a complaint of discrimination, made on more than one ground, should be investigated as a single case, and that discrimination claims, amounting to victimisation, might also be investigated in one case. Section 79(2) of the Act provided that such an investigation was to be held in private.
15. Pursuant to s.79(3A), the Acts then provided the Director, or an Equality Officer assigned to the case, might hold a preliminary hearing into specified matters, including:
“(a) whether the complaint has complied with the statutory requirements relating to such referrals, … or
(d) any other related question of law or fact”.
16. At the time relevant to this judgment, an appeal on a point of law to the High Court from a determination of the Tribunal on preliminary points, including those identified above (see s.79(7) of the Act of 1998, as inserted by s.35(d) of the Equality Act, 2004). Section 79(7) has now been deleted by s.83(1)(f) of the Workplace Relations Act, 2015.
17. The potential effect and impact of the range of orders made by an Equality Officer, under s.82 of the Act of 1998, was by no means insignificant. Consequently, the requirement for effectiveness and informality must be balanced with the principle that any investigations be carried out in a fair manner. Informality and constitutional fairness are not mutually exclusive requirements.
18. The statutory provisions as to time limits applicable to claim lie at the heart of this appeal. These were set out in s.77 of the 1998 Act, as amended by s.32 of the 2004 Act.
19. The relevant provisions were as follows:
“(5)(a) Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence. (emphasis added)
(b) On application by a complainant the Director or Circuit Court, as the case may be, may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly.”
It is beyond controversy, therefore, that these provisions had the intent that, in general, a complaint was to be made within a time limited, at least by reference, to the most recent occurrence in question.
20. Section 77(6) of the 1998 Act, as amended by s.32 of the Equality Act, 2004, provided for a situation where the time may be extended where there has been a misrepresentation by a respondent. On the facts now presented, that situation does not arise here. However, s.77(6A) is of particular relevance. It provided as follows:
“(6A) For the purposes of this section –
(a) discrimination or victimisation occurs –
(i) if the act constituting it extends over a period, at the end of the period,
(ii) if it arises by virtue of a term in a contract, throughout the duration of the contract, and
(iii) if it arises by virtue of a provision which operates over a period, throughout the period,
…” (emphasis added)
21. The interpretation of these provisions, taken together, is, undoubtedly, an issue in the investigation. But, the role of the Superior Courts in considering fact and law issues emerging from a tribunal, such as the respondent, has recently been considered by this Court (see Barry v. The Minister for Agriculture [2015] IESC 63). That role is significantly circumscribed. At this stage it is sufficient to emphasise that it is not, generally, the function of the courts to substitute their own views for those of an Equality Officer on questions of fact. Nor should a court, in a judicial review, or an appeal therefrom, seek pre-emptively to exercise a statutory jurisdiction on legal issues which is vested, in the first instance, in an Equality Officer.
22. In the pending investigation, the substantial issues of fact, and law, are yet to be determined. In fact, the true question which arises in this appeal is whether the appellant, in seeking the jurisdictional declarations identified earlier, has established a basis in law for a court to grant such relief. A court does not grant “advisory” opinions, or declarations on a hypothesis. Nor will a court grant a declaration where there is insufficient evidence that a wrong has occurred, or might occur. Simple inference by one party of a potential apprehended denial of rights will seldom be sufficient to ground a declaration, unless it is supported by real evidence upon which a court might safely act.
Chronology
23. In order to make his original complaint, Mr. Brannigan used the “EE1 Form”. Unlike the T10 application form, until recently used in claims to the Employment Appeals Tribunal prior to its dissolution in 2015, the EE1 form, as used in this complaint, was not mandatory. The content or status of the form was not laid down by statute (see by way of distinction the consideration of the Employment Appeals Tribunal T10 form in Bank of Scotland (Ireland Ltd.) v. EAT and Grady [2002] IEHC 119; and IBM v. Feeney [1983] ILRM 50). Judging from its layout, the EE1 form, applicable here, appears to have been intended by the Tribunal, to allow a claimant to give a general account of the basic details of the complaint. But, even its very format did not allow for a full description of a complaint; rather, it simply allowed a claimant to present the claim, often in “box” form, in some instances even carried out by a simple “box ticking” exercise. In the present case, it is said Mr. Brannigan completed the form by himself, and did not then have legal advice or assistance, although it appears that at the time he did have a solicitor acting for him in his dispute with his former employer. His solicitor is, in fact, named in the EE1 form.
Background
24. The following matters appear not to be in dispute. It is accepted the notice party was employed by the appellant. He brought a complaint to the Tribunal on the 4th August, 2006. He claimed that the appellant had engaged in discrimination, harassment and victimisation against him, contrary to s.77 of the 1998 Act, as amended. He contended that this alleged unlawful conduct derived from the fact of his sexual orientation as a gay man.
25. Under the heading “Grounds on which discrimination is claimed”, in the EE1 Form, Mr. Brannigan ticked a box headed “gender”, underlining the word “male” beside that box. He did not tick the box for “marital status”. He underlined the word “single” beside the box, and ticked a box for “sexual orientation”, underlining the word “homosexual” beside it. Under the heading “Description of claim”, Mr. Brannigan ticked the boxes for “promotion/regrading”, “conditions of employment”, “harassment”, and “victimisation”. Under the heading “Details of complaint”, he set out a “date of the first occurrence” of the discriminatory act as being the 16th December, 2005. He set out the “date of the most recent occurrence” of discrimination as being the 10th March, 2006 (see s.77(5)(a) of the 1998 Act, as amended by s.32 of the Equality Act, 2004, quoted earlier). Mr. Brannigan gave a brief account of two events which occurred when he had been employed as a teacher, in a school run by the appellant. It will be noted that a period of 6 months from the latter of the two events, 10th March, 2006, expired on the 10th September, 2006. Thus, this 6 month period elapsed a little more than one month after Mr. Brannigan submitted the EE1 form, on the 4th August, 2006.
………..
The Investigation Hearing
31. On the initial day of the investigation hearing, 22nd January, 2009, all parties were in attendance before the Equality Officer. Arising from concerns relating to the pending High Court action, the investigation was adjourned, apparently, by consent.
32. Subsequently, on the 9th February, 2009, Mr. Brannigan submitted a further written rejoinder to the V.E.C.’s responses. A resumed hearing of the investigation took place on the 12th February, 2009.
33. At that resumption, junior counsel for the appellant then raised two preliminary concerns. First, she again sought a stay on the investigation pending the outcome of the pending High Court action. The Officer rejected the application on that ground, holding that she was under a statutory duty to carry out the investigation. No challenge has been brought to that decision.
34. The second issue concerned the temporal scope of the issues. Counsel for the V.E.C. submitted to the Officer that Mr. Brannigan was not entitled to give evidence concerning the “historic issues”, (going back to 1997), as set out in his second set of submissions of the 17th September, 2007. She submitted that the Officer had no jurisdiction to deal with any matters prior to the 16th December, 2005, which was the date identified in the EE1 Form as being the first occurrence of the discrimination. She referred to the provisions of the Acts, outlined above, laying emphasis on the alleged date of the “most recent occurrence” of discrimination.
35. As mentioned earlier, s.79(3A) of the 1998 Act, as amended, provided that a party may apply to an Equality Officer to determine certain matters (including time limitations), as preliminary issues. While one might infer that implied subtext to the appellant’s case is the suggestion that the Officer might have directed a preliminary hearing, no such complaint was made in the judicial review proceedings. On the basis of the authority of Aer Lingus Teo v. The Labour Court [1990] ILRM 485, considered later, such an application would have been very unlikely to succeed. The principle is that the Officer should conduct the investigation without interruption. Also, prior to the hearing, the Officer directed that a number of the V.E.C.’s witnesses who were in attendance at the hearing should wait outside. Those witnesses were other teachers, said to have witnessed, or been involved in, the various alleged events over the years. This was within the officer’s powers. The hearing proceeded and Mr. Brannigan set out his case.
36. It must be taken as a given that the investigation can be conducted informally and flexibly. That said, what actually occurred is not entirely easy to follow. By the end of the first hearing-day, Mr. Brannigan had apparently given evidence, and been questioned by the officer, but had not been fully cross-examined. This Court was informed the appellant had, in fact, called one witness, Mr. Ger Rooney, a teacher. Why Mr. Brannigan’s cross-examination had not been completed is unclear. The procedure is, frankly, puzzling.
37. At the end, the Equality Officer endeavoured to identify further potential dates, but then difficulties arose. No resumed hearing ever took place. These judicial review proceedings were brought to the High Court within two weeks after the second hearing day, on the 27th February, 2009. O’Neill J., in the High Court, granted leave to the appellant to seek judicial review. The appellant originally sought a broader range of judicial review remedies, including certiorari.
38. Prior to a consideration of the High Court judgment now under appeal, it is helpful to touch on some of the key matters contained in the affidavits sworn herein. Put at its simplest, the appellant’s case is that the Officer exceeded her jurisdiction by considering Mr. Brannigan’s evidence on the “historical incidents”.
39. Mr. Winters, the appellant’s Acting Chief Executive Officer, set out his concerns in this way:
The High Court Judgment
43. In the High Court, McGovern J. appears to have held that the EE1 Form was intended only to set out the nature of the complaint in broad outline, and that it was possible to amend a claim, so long as the general nature of the complaint remained the same. The judge considered that Mr. Brannigan, in his second submission, had simply submitted further and better particulars of his claim, albeit in the context of an expanded period of time. He concluded that, under the legislation, complaints made within an expanded period were not time barred, but that any respondent to a claim must be given a reasonable opportunity to deal with the complaints, and observed the procedures adopted in that regard must be fair and reasonable.
44. Applying the principles outlined in the case law cited earlier, insofar as any findings as to time issues, and the effect of the EE1 form, are part of the High Court judgment, I would set aside these parts of the judgment. They are pre-emptive. As yet, questions of fact or law fall to be determined first by the Officer. The relevant facts of the investigation simply have not been elicited or determined. The Equality Officer has not made any legal ruling on the time issue. Without these, it would be inappropriate, and premature, to express views on legal issues which hinge on evidence as yet not ascertained.
…………..
Consideration
47. It is well established that the purpose of a deciding body or tribunal, such as the respondent Tribunal, is to provide speedy and effective redress in cases of alleged discrimination. It is not in dispute the procedures employed may be both informal and flexible. It is true, as Mr. Gerard Durcan, S.C., counsel for the Tribunal, submits, that the range of claimants before such a Tribunal do not fit into any one category. They may or may not be legally represented and, therefore, flexibility is both warranted and necessary.
48. The question is, are there grounds for any declaration? It has been observed, more than once, and not only in this jurisdiction, that it is not in the public interest, nor the intent of the legislation, that investigations, or inquiries, of this nature should be intermittent, or be interspersed with unnecessary representations or counter-representations, or by premature applications made to the courts (see, by way of illustration, the remarks in Pearlberg v. Varty [1972] 2 All.ER, cited in the High Court judgment delivered by Carroll J. in Aer Lingus Teoranta v. The Labour Court [1990] ILRM 485). However, this precept does not mean that a court might not, ultimately, grant relief were it shown that a deciding officer had, in fact, exceeded jurisdiction.
………….
Conclusion
61. I would, however, venture some further observations. It goes without saying, first, that the duty of the Equality Officer is both statutory, and, ultimately, delimited by constitutional considerations. As part of fair procedures, it is necessary that all parties be aware, in a timely way, of the case which they must meet. Consequently, it would be wrong, were a situation to evolve in this investigation, where one or other of the parties was under a misapprehension of precisely the range of legitimate inquiry. Second, it is hardly necessary to reiterate that it is not possible for any tribunal, upon which a particular jurisdiction has been conferred by statute, to extend or confine the boundaries of that jurisdiction by an erroneous determination of fact (see State (Attorney General) v. Durkan [1964] I.R. 279, approved in Killeen v. DPP [1998] ILRM 1). There may also be circumstances in which a tribunal, although holding jurisdiction to enter upon an investigation or inquiry, may render its decision a nullity by, for example, a denial of fair procedures. It is no part of the case made that in conducting the hearing, as she has, the Officer is pursuing some fixed policy.
62. To my mind, it would not be appropriate to grant a declaration. Subject to my findings on the observations made by the High Court judge on facts and law, I would, therefore, dismiss this appeal. I would remit the matter to the Equality Officer for further investigation and final determination, in accordance with law. I would uphold the High Court judgment and order, to the extent that it held that the application is premature.
Canada v. Employment Appeals Tribunal
[1992] 2 I.R. 498
“Mr. Burke’s claim
Into which category does Mr. Burke’s claim fall, public or private? The employment of a chauffeur at the Canadian Embassy is clearly not a commercial contract in the ordinary sense of the word; it is a contract of service. Is it any different to having the heating system in the embassy repaired? (cf. the claim against the Empire of Iran (1963) 45 I.L.R. 57). I believe it is. I think once one approaches the embassy gates one must do so on an amber light. Prima facie anything to do with the embassy is within the public domain of the government in question. It may be that this presumption can be rebutted as happened in the Empire of Iran case. I believe that the element of trust and confidentiality that is reposed in the driver of an embassy car creates a bond with his employers that has the effect of involving him in the employing government’s public business organisation and interests. Accordingly, I hold that the doctrine of restrictive state immunity applies to this case.
Petrus Wilhelmus Rutten v Cross Medical Ltd [1997] All ER (EC) 121 [1997] ICR 715 [1997] IRLR 249
“Convention on Jurisdiction and the Enforcement of Judgments – Special jurisdiction – Court for the place of performance of the contractual obligation – Contract of employment – Place where the employee habitually carries out his work – Meaning – Work carried out in more than one Contracting State
(Brussels Convention of 27 September 1968, Art. 5(1), as amended by the 1989 Accession Convention)
Article 5(1) of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, as amended by the Convention of 26 May 1989 on the Accession of the Kingdom of Spain and the Portuguese Republic, must be interpreted as meaning that where, in the performance of a contract of employment, an employee carries out his work in several Contracting States, the place where he habitually carries out his work, within the meaning of that provision, is the place where he has established the effective centre of his working activities. When identifying that place, it is necessary to take into account the fact that the employee spends most of his working time in one of the Contracting States in which he has an office where he organizes his activities for his employer and to which he returns after each business trip abroad.
………….
12 It is settled law (see, in particular, Case C-125/92 Mulox IBC v Hendrick Geels [1993] ECR I-4075, paragraph 10) that, in principle, the Court of Justice will interpret the terms of the Brussels Convention autonomously so as to ensure that it is fully effective, having regard to the objectives of Article 220 of the EEC Treaty, for the implementation of which it was adopted.
13 That autonomous interpretation alone is capable of ensuring uniform application of the Convention, the objectives of which include unification of the rules on jurisdiction of the Contracting States, so as to avoid as far as possible the multiplication of the bases of jurisdiction in relation to one and the same legal relationship and to reinforce the legal protection available to persons established in the Community by, at the same time, allowing the plaintiff easily to identify the court before which he may bring an action and the defendant reasonably to foresee the Court before which he may be sued (Mulox IBC, paragraph 11).
14 Moreover, in Mulox IBC the Court has already interpreted Article 5(1) of the Brussels Convention, in the version prior to its amendment by the Convention of 26 May 1989, cited above (hereinafter `the San Sebastian Convention’).
15 In Mulox IBC the Court held that Article 5(1) had to be interpreted as meaning that in relation to contracts of employment the place of performance of the relevant obligation, for the purposes of that provision, refers to the place where the employee actually performs the work covered by the contract with his employer and that where the employee performs his work in more than one Contracting State, that place refers to the place where or from which the employee principally discharges his obligations towards his employer (paragraphs 20 and 26).
16 As justification for that interpretation, the Court stated, first (paragraph 17), that the rule on special jurisdiction in Article 5(1) of the Brussels Convention was justified by the existence of a particularly close relationship between a dispute and the court which could most conveniently be called on to take cognizance of the matter (Case 133/81 Ivenel v Schwab [1982] ECR 1891 and Case C-266/85 Shenavai v Kreischer [1987] ECR 239), and that the courts for the place in which the employee is to carry out the agreed work were best suited to resolving the disputes to which the contract of employment could give rise (Shenavai and Case 32/88 Six Constructions v Humbert [1989] ECR 341).
17 It considered, secondly (Mulox IBC, paragraphs 18 and 19), that, in regard to contracts of employment, interpretation of Article 5(1) of the Brussels Convention had to take account of the concern to afford proper protection to the employee as the party to the contract who was the weaker from the social point of view (Ivenel and Six Constructions) and that such protection was best assured if disputes relating to a contract of employment fell within the jurisdiction of the courts of the place where the employee discharged his obligations towards his employer, since that was the place where it was least expensive for the employee to commence, or defend himself in, court proceedings.
18 The Court stated, thirdly (Mulox IBC, paragraphs 21 and 23), that where the work was performed in more than one Contracting State, it was important to avoid any multiplication of courts having jurisdiction in order to preclude the risk of irreconcilable decisions and to facilitate the recognition and enforcement of judgments in States other than those in which they were delivered (see also, to that effect, the judgment in Case C-220/88 Dumez France and Tracoba [1990] ECR I-49, paragraph 18) and that, consequently, Article 5(1) of the Brussels Convention could not be interpreted as conferring concurrent jurisdiction on the courts of each Contracting State in whose territory the employee performed part of his work.
19 That case-law is also relevant for the purposes of interpreting Article 5(1) of the Convention as amended by the San Sebastian Convention, which is the version applicable in the main proceedings.
20 As the Court observed in Case C-288/92 Custom Made Commercial v Stava Metallbau [1994] ECR I-2913, paragraph 25, it had already interpreted the Convention as establishing the rule of special jurisdiction relating to contracts of employment, which the San Sebastian Convention inserted in Article 5(1) of the Brussels Convention. In that regard, it is clear from the report by Almeida Cruz, Desantes Real and Jenard on the San Sebastian Convention (OJ 1990 C 189, pp. 35, 44 and 45) that the new version of Article 5(1) of the Convention takes into account not only the wording of Article 5(1) of the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters signed at Lugano on 16 September 1988 (OJ 1988 L 319, p. 9), which was itself based on the interpretation which the Court adopted in Ivenel and Shenavai, but also of the need to afford proper protection to the employee, as stated by the Court in Six Constructions.
21 Consequently, not only did the amendment by the San Sebastian Convention to the wording of Article 5(1) of the Brussels Convention leave the rationale and purpose of that provision unaffected, but, moreover, the new wording of that provision following the entry into force of the San Sebastian Convention was intended in fact to support the interpretation given by the Court to that article in regard to contracts of employment.
22 It follows that in order to determine the meaning of the words `place … where the employee habitually carries out his work’ for the purposes of Article 5(1) of the Convention, as amended by the San Sebastian Convention, in a case where, as in the main proceedings, the employee carries out his work in more than one Contracting State, the Court’s previous case-law must be taken into account when determining the place with which the dispute has the most significant link, while taking due account of the concern to afford proper protection to the employee as the weaker party to the contract.
23 Having regard to the requirements set out in the previous paragraph, where a contract of employment is performed in several Contracting States, Article 5(1) of the Convention, as amended by the San Sebastian Convention, must be understood to refer to the place where the employee has established the effective centre of his working activities and where, or from which, he in fact performs the essential part of his duties vis-à-vis his employer.
24 That is the place where it is least expensive for the employee to commence proceedings against his employer or to defend himself in such proceedings. The courts for that place are also best placed and, therefore, the most appropriate to resolve the dispute relating to the contract of employment.
25 When identifying that place in the particular case, which is a matter for the national court in the light of the facts before it, the fact that the employee carried out almost two-thirds of his work in one Contracting State – the remainder of his work being performed in several other States – and that he has an office in that Contracting State where he organized his work for his employer and to which he returned after each business trip abroad, as was the case in the main proceedings, is relevant.
26 In a situation such as that at issue in the main proceedings, that is the place where the employee established the effective centre of his activities under the contract of employment concluded with his employer. That place must, therefore, be deemed, for the purposes of the application of Article 5(1) of the Convention, as amended by the San Sebastian Convention, to be the place where the employee habitually carries out his work.
27 Accordingly, Article 5(1) of the Convention, as amended by the San Sebastian Convention, must be interpreted as meaning that where, in the performance of a contract of employment an employee carries out his work in several Contracting States, the place where he habitually carries out his work, within the meaning of that provision, is the place where he has established the effective centre of his working activities. When identifying that place, it is necessary to take into account the fact that the employee spends most of his working time in one of the Contracting States in which he has an office where he organizes his work for his employer and to which he returns after each business trip abroad.
Costs
28 The costs incurred by the German Government and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the proceedings pending before the national court, the decision on costs is a matter for that court.
On those grounds,
THE COURT
(Sixth Chamber),
in answer to the questions referred to it by the Hoge Raad der Nederlanden, by judgment of 1 December 1995, hereby rules:
Article 5(1) of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial matters, as amended by the Convention of 26 May 1989 on the Accession of the Kingdom of Spain and the Portuguese Republic, must be interpreted as meaning that where, in the performance of a contract of employment, an employee carries out his work in several Contracting States, the place where he habitually carries out his work, within the meaning of that provision, is the place where he has established the effective centre of his working activities. When identifying that place, it is necessary to take into account the fact that the employee spends most of his working time in one of the Contracting States in which he has an office where he organizes his activities for his employer and to which he returns after each business trip abroad.”