UFD Scope of Act
Cases
General
West Midlands Co-op v Tipton
[1986] ICR 192, [1986] 1 All ER 513
Lord Bridge
‘Both the original and the appellate decision by the employer, in any case where the contract of employment provides for an appeal and the right of appeal is invoked by the employee, are necessary elements in the overall process of terminating the contract of employment. To separate them and consider only one half of the process . . is to introduce an unnecessary artificiality.’ After considering the Savage case, Lord Bridge said: ‘Adopting the analysis which found favour in J Sainsbury Ltd v Savage, [1981] ICR I, if the domestic appeal succeeds the employee is reinstated with retrospective effect; if it fails the summary dismissal takes effect from the original date. Thus, in so far as the original dismissal and the decision on the domestic appeal are governed by the same consideration, the real reason for dismissal, there is no reason to treat the effective date of termination as a watershed which separates the one process from the other.’
McCotter v Quinn Insurance
[2013] E.L.R 45
EAT
“In the first instance, Counsel for the respondent made an application that the Tribunal did not
have jurisdiction to hear the matter because the clamant was not an employee as defined in the Unfair Dismissals Act 1977 but that he was an independent contractor. The Tribunal considered the evidence adduced taking into consideration all the factors relating to the working relationship between the Claimant and the Respondent.
The Tribunal noted the following facts which emerged during the hearing, which are now set
out in summary hereunder, some supportive of the contention that the claimant was engaged as an Independent Contractor and others supportive of the claimant having employee status:
(i) the claimant considered himself an independent contractor since 2004
(ii) he was responsible for paying all his own taxes. In this respect he confirmed that he made
revenue returns as a self- employed person, under Schedule D, from 2007 onwards;
(iii) the claimant’s email of the 22nd September 2009 requested it was more tax efficient to
trade as a limited company rather than as a sole trader and requested that all payments after the
1st October 2009 should be made to the company of which he was a 100 per cent owner;
(iv) he was not paid when out sick;
(v) he was not paid for holidays;
(vi) he was not part of any pension scheme;
(vii) he was not paid wage increases when other employees were;
(viii) he could work for other clients so long as there was no conflict of interest;
(ix) he submitted invoices for his services;
(x) the claimant had to carry out the work himself and could not delegate his functions;
(xi) he was given business cards by the respondent;
(xii) he was provided with an email address by the respondent;
…….It is clear that Paragraphs (i) to (ix) above strongly suggest that the claimant is an Independent
Contractor while (x) to (xiii) support the contention that the claimant was an employee.
Whether a worker is an employee or self employed depends on a large number of factors……… In summary there is no single test. Each case must be considered in the light of its own particular facts.
Standing back and looking at the picture as a whole, and mindful of the legal principles set out
in the Barry Case and the other cases referred to above, the Tribunal determines that the
working relationship between the Claimant and the Respondent was one of a Contract for
Services and that the claimant was working as an Independent Contractor. The Tribunal
therefore does not have jurisdiction to hear the claim under the Unfair Dismissals Acts, 1977 to
2007 or the Redundancy Payments Acts 1967 to 2007.”
O’Sullivan v Board Management
(UD/217/2007)
EAT
“The question before the Tribunal is what was the effect of the withdrawal of the nomination of the claimant to her teaching position by her Order?
The Education Act, 1998, Appendix D, Section 7 (i) gives the Religious Order power to have a suitably qualified member of the Order nominated as a teacher and appointed by the BOM. It is clear that the BOM’s hands are tied, they must appoint as per section 7 (1) to a school.
The respondent argues that the Religious Order have a corollary right to withdraw the nomination and that the BOM must also act on that direction and terminate the employment. The respondent argues that this termination is not subject to the normal Disciplinary rules for termination of a Teachers employment and does not amount to an unfair dismissal.
It must be noted that while the Order withdrew the nomination giving rise to the termination of employment, they are not a party in this case; nevertheless, they are central to the decisions and actions of the BOM. Considerable evidence was provided by the Provincial Leader, XXXX, in relation to the decision. She confirmed in evidence that she and her leadership team, had taken the decision, within the rules of the order to “mission” the claimant XXXX to rest and had written to the BOM withdrawing her nomination from her teaching position. She further confirmed that there was a practice of transferring members of the order from one position to another to meet the congregation’s needs, including from one school to another. Discussion/consultation took place with the claimant on various options and the final decision to withdraw her nomination left the claimant unhappy and not accepting the decision.
The claimant in her evidence confirmed that during her 30 plus years of teaching she had been nominated by her Order and appointed to teaching roles on previous occasions to other schools and that subsequently her nomination had been withdrawn and her employment terminated and she was transferred/nominated to another school, but the difference in the instant case was that she did not agree to the transfer.”
Sharma & Anor -v- Employment Appeals Tribunal
[2010] IEHC 178 (13 May 2010)
Hedigan J.
“Applicable Law
10. Section 2(1)(a) of the Act of 1977, as amended, provides for the following exclusion:-
“2.(1) This Act shall not apply in relation to any of the following persons:
(a) an employee (other than a person referred to in section 4 of this Act) who is dismissed, who, at the date of his dismissal, had less than one year’s continuous service with the employer who dismissed him and whose dismissal does not result wholly or mainly from the matters referred to in section 6(2)(f) of this Act.”
11. Section 6(1) of the Act of 1977 provides for dismissals to be deemed unfair unless there are substantial grounds justifying the dismissal. Section 6(2) goes on to state that the dismissal of an employee shall be deemed unfair “if it results wholly or mainly from” specified grounds. Those grounds include membership or proposed membership of a trade union or engaging in trade union activities; religious or political opinion; legal proceedings against an employer where an employee is a party or a witness; race; sexual orientation; age; membership of the travelling community; pregnancy or matters connected with pregnancy and birth; penalisation; availing of rights under legislation to maternity leave, adoptive leave, carer’s leave, the National Minimum Wage Act 2000, parental or force majeure leave and unfair selection for redundancy.
Decision of the Court
19. The grounds for presumed unfair dismissals have grown over the years through a series of amending legislation to the Act of 1977. It is expressly stated in several of the amending pieces of legislation that the one year’s continuous service requirement, as set down in s.2(1)(a) of the Act of 1977, is not applicable to particular grounds for presumed unfair dismissal. Those pieces of amending legislation are as follows:-
Section 14 of the Unfair Dismissals (Amendment) Act 1993
This provides inter alia that s. 2(1)(a) of the Act of 1977 shall not apply “if the dismissal results wholly or mainly from one or more of the matters referred to in subsection (2)(a) of the said section 6” i.e. the employee’s membership or proposed membership of a trade union or excepted body under the Trade Union Acts 1941 and 1971.
Section 38(5) of the Maternity Protection Act 1994
This provision inserted s.6 (2A) into the Act of 1977. In essence, it provides, inter alia, that for the purposes of the sections of the Act of 1977 which deal with pregnancy and maternity matters, the term “employee” includes a person who would otherwise be excluded from the Act by virtue of inter alia paragraph (a) of section 2(1) of the Act of 1977.
Section 25 of the Adoptive Leave Act 1995
Section 24 of the Act of 1995 inserted a new ground for a presumed unfair dismissal i.e. the exercise or contemplated exercise by an adopting parent of her right under the Act of 1995 to adoptive leave or additional adoptive leave. Section 25 of the Act of 1995 substituted the above s.6(2A) of the Act of 1977 so that the term “employee” and “adopting parent” include a person who would otherwise be excluded from the Act by inter alia paragraph (a) of section 2(1) of the Act of 1977.
Section 25(2)(b) of the Parental Leave Act 1998
Section 25(2)(a) of the Act of 1998 inserted s.6(2)(dd) into the Act of 1977. It provides for the dismissal of an employee for the exercise or proposed exercise of the right to parental leave or force majeure leave under and in accordance with the Act of 1998 to be deemed unfair. Section 25(2)(b) provides that the term “employee” includes a person who for the purposes of s.6(2)(dd) would otherwise be excluded from the Act of 1977 by inter alia paragraph (a) of section 2(1) of the Act of 1977.
Section 27(2)(b) of the Carer’s Leave Act 2001
Section 27(2)(a) of the Act of 2001 added, in s.6(2)(dd) the exercise or proposed exercise by the employee of the right to carer’s leave under and in accordance with the Carer’s Leave Act 2001 to the list of grounds for presumed unfair dismissal. Section 27(2)(b) goes on to provide that the term “employee” includes a person who would otherwise be excluded from the Act of 1977 by inter alia paragraph (a) of s.2(1) of the Act of 1977.
Section 36(2) of the National Minimum Wage Act 2000
This provision stipulates that the dismissal of an employee in contravention of s.36(1) (including inter alia for having exercised or proposing to exercise a right under the Act) will be deemed to be an unfair dismissal for the purposes of the Unfair Dismissals Acts 1977-1993 and that it is not necessary for such an employee to have at least one year’s continuous service.
20. In contrast, s.27 of the Act of 2005 makes no mention of whether s.2(1)(a) of the Act of 1977 is applicable or not. I am satisfied, having regard to the expressio unius est exclusio alterius principle that the one year’s continuous service requirement must apply. This Court may not read into the Act of 1977 a specific provision lifting the service requirement specified in s.2(1)(a) in circumstances where the legislature has expressly stated in other enactments that the requirement was not to apply in respect of other grounds for dismissal but has not done so therein in respect hereof. It seems to me for these reasons that the respondent rightly concluded that it did not have jurisdiction to hear the applicants’ claims.
Conclusion
25. In summary, I am satisfied that employees who pursue claims under the Unfair Dismissals Acts 1977-2007 for penalisation, as defined in s.27(1) of the Act of 2005 must have one year’s continuous service with the employer who dismissed them. In addition, I find that the reasons provided to the applicant are not clear on their face but were clear to the applicants, having regard to the central challenge they made in these proceedings and thus adequate. I would refuse the reliefs sought in these proceedings.
Waite v Government Communications Headquarters
[1983] UKHL 7
House of Lords
“For reasons which I shall explain when I come to consider the subsidiary question, I am of opinion that the retiring age laid down in the terms and conditions of the appellant’s employment (which I shall call the ” contractual ” retiring age “) for a person holding his position was 60. The respondents had power, in their discretion, to retain him in his position after he had attained the age of 60 and until he reached the age of 65, and they did in fact retain him until he was 60 1/2 in order to carry out a particular task, but he had no right under the terms of his employment to be retained after attaining the age of 60. Such retention was entirely a matter for the respondents’ discretion. Nevertheless the appellant contends that on 30th April 1978 when he was dismissed, he had not attained the normal retiring age for an employee in his position, and therefore that the Industrial Tribunal had jurisdiction to consider his complaint.
….The decision of the Court of Appeal in Nothman has stood until the present time though not without some judicial criticism especially in Howard v. Department of National Savings [1981] I.C.R. 208 from Ackner L.J. and Griffiths L.J. and Secretary of State for Trade v. Douglas [1983] I.R.L.R. 63
from Lord MacDonald.
In Post Office v. Wallser [1981] 1 All E.R. 668 the Court of Appeal held that the normal retiring age was a matter of evidence and did not depend exclusively on the relevant contract of employment. Some of the observations in that case are not altogether easy to reconcile with what had been said in Nothman supra but I respectfully agree with the view expressed by my noble and learned friend Lord Bridge (who was then Bridge L.J.) at page 673 as follows:
” I agree with the broad proposition that the normal retiring age ” within the meaning of [paragraph 10 of schedule 1 of the 1974 Act] ” is not necessarily to be discovered in the contract of employment of ” the group of workers with whom the Court or Tribunal is concerned, ” but it does seem to me that when contractual terms and conditions ” of employment do govern the age of retirement of the relevant group, ” those terms provide the best evidence which will prevail to determine ” what is the normal age of retirement, unless effectively contradicted ” by other evidence.” (Emphasis added.)
In Howard v. Department for National Savings supra the Court of Appeal reverted to the view that the contractual retiring age, express or implied, conclusively fixed the normal retiring age, and they also said that unless a contractual retiring age is either expressed or to be implied, it is impossible to establish that there is any normal retiring age. But in Duke v. Reliance Systems Ltd. [1982] I.C.R. 449, where there was no express contractual retiring age, the Employment Appeal Tribunal took a more flexible view. Browne-Wilkinson J., delivering the judgment of the Tribunal, first held that no contractual retiring age could be implied, and then proceeded to consider whether there was evidence of practice which established a normal retiring age. In my opinion that was the correct approach.
I have reached the opinion that the Court of Appeal in Nothman, supra, stated the law in terms which were too rigid and inflexible. If the normal retiring age to be ascertained exclusively from the relevant contract of employment, even in cases where the vast majority of employees in the group concerned do not retire at the contractual age, the result would be to give the word ” normal ” a highly artificial meaning. If Parliament had intended that result, it would surely not have used the word ” normal ” but would have referred directly to the retirement age specified as a term of the employment. Moreover in a case where, unlike Nothman, the contract provides not for an automatic retiral age but for a minimum age at which employees can be obliged to retire, it would be even more artificial to treat the minimum age as fixing the normal age, as the respondents would have us do, even in a case where the minimum age has become a dead letter in practice. By no means all contracts of employment specify the age, or the minimum age, of retirement; indeed outside of large organisations like the Civil Service it is probably exceptional for the age of retirement to be specified. So, if the normal retiring age can be ascertained only from the terms of the contract, there will be many cases in which there is no normal retiring age and in which the statutory alternatives of 65 for a man and 60 for a woman will automatically apply, although some other age may be well established and recognised in practice. If that were the law it might operate harshly in the case of women employees over the age of 60, as they would never be entitled to complain to the Industrial Tribunal of unfair dismissal unless they could establish that they were subject to a contractual retiring age higher than 60.
I therefore reject the view that the contractual retiring age conclusively fixes the normal retiring age. I accept that where there is a contractual retiring age, applicable to all, or nearly all, the employees holding the position which the appellant employee held, there is a presumption that the contractual retiring age is the normal retiring age for the group. But it is a presumption which, in my opinion, can be rebutted by evidence that there is in practice some higher age at which employees holding the position are regularly retired, and which they have reasonably come to regard as their normal retiring age. Having regard to the social policy which seems to underlie the Act—namely the policy of securing fair treatment, as regards compulsory retirement, as between different employees holding the same position—the expression ” normal retiring age ” conveys the idea of an age at which employees in the group can reasonably expect to be compelled to retire, unless there is some special reason in a particular case for a different age to apply. ” Normal ” in this context is not a mere synonym for ” usual “. The word ” usual ” suggests a purely statistical approach by ascertaining the age at which the majority of employees actually retire, without regard to whether some of them may have been retained in office until a higher age for special reasons—such as a temporary shortage of employees with a particular skill, or a temporary glut of work, or personal consideration for an employee who has not sufficient reckonable service to qualify for a full pension. The proper test is in my view not merely statistical. It is to ascertain what would be the reasonable expectation or understanding of the employees holding that position at the relevant time. The contractual retiring age will prima facie be the normal, but it may be displaced by evidence that it is regularly departed from in practice.
Wlliam O’Mara v College Freight Limited T/A Target Express Ireland
(UD 1371/2009)
“Determination:
The Tribunal having heard all of the evidence are satisfied that there was no retirement clause in the claimant’s terms and conditions of employment. The respondent stated that it was custom and practice within the company and that there was a policy document on the issue filed in each
of the warehouses. This document was not produced at the hearing nor was it ever given to the claimant.The claimant was not aware there was a retirement policy. Furthermore the company produced itsopen drive option insurance policy which they alleged did not permit anyone to drive beyond their65th birthday.
The respondent conceded that there were two other employees employed who worked beyond their 65th birthdays. It transpired after much probing that there was a third employee in Limerick who also worked beyond his 65th birthday. The respondent stated that each of these employees had a specific purpose within the company and for that reason they felt they came under the exception clause.
Evidence was adduced by MC in relation to a computer programming fault with the respondent’s personnel files wherein the system altered the ages of several employees from their true age to 45.
This was not discovered until late 2008 and it took until Mid February 2009 to discover the fault in relation to the claimant. Conflicting evidence was given by MC on behalf of the respondent when asked by the tribunal why the claimant was not considered for the redundancy programme they were embarking on in February, 2009. He stated the reasons were two fold. Firstly, the claimant had an excellent employment record and he was an excellent driver. He went as far as stating that he was one of the best the company had. He stated that because he had an unblemished record he would not have been selected even if he had been subjected to the selection test. Secondly, because he was due to retire. If the respondent’s earlier evidence is to be believed, the respondent could not have been aware that the claimant was due to retire because his age on his personnel file was 45
and that was not rectified until mid February, 2009.
……..Based on all of the evidence adduced the tribunal is not satisfied that the company had a retirement policy or even a comprehensive custom and practice in relation to retirement. The claimant’s terms and conditions of employment were silent on the issue, no staff handbook existed and if a policy document did exist it was not put in evidence nor was it ever given to the claimant. No notice was given to the claimant either, before, on or directly after his 65 th birthday. The Tribunal is not satisfied that the respondent’s insurance policy was as restrictive as was alleged to be.
The Tribunal find that the claimant was unfairly dismissed and accordingly award him the sum of € 33,500.00.
Sweeny v Aer Lingus Teo
(DEC-E2013-135.)
The dispute concerns a claim by Ms Elizabeth Sweeny that she was subjected to discriminatory treatment by the Respondent on the grounds of age in terms of Section 6(2) of the Employment Equality Act 1998 (as amended) and Section 8 of those Acts.
The Respondent contended that in every employee’s contract of employment, it was subject to an express or implied term that it ran until the normal retirement date, that is after attaining the age of 65.
The Equality Officer determined that the Respondent had established that the retirement age for its non flying staff was 65 years of age even though no age was set out in the Complainant’s contract of employment. The Equality Officer noted that it was common practice for those employees reaching the age of 65 to retire and the Complainant was aware or ought reasonably to have been aware that 65 was the retirement age for non flying staff.
Whilst it was noted that there was “no doubt that the decision to retire someone at a particular age is a decision that is influences by that persons’ age” and that this had been held to be direct discrimination (Deutche Lufthansa AG v Gertraud Kumpan Case C-109/09 and others), the Respondent submitted that Section 34(4) of the Acts provided a defence in that it states inter alia “…..it shall not constitute discrimination on the age ground to fix different ages for the retirement (whether voluntary or compulsory) of employees or any class or description of employees”.
The Equality Officer concluded that
(a) the Complainant has established facts from which discrimination may be inferred and the onus to rebut the presumption is on the Defendant.
(b) In circumstances where there is an absence of justification, the Complainant is entitled to succeed.
John Roche –v- Complete Bar Solutions
DEC-E2013-197:
Mr Roche was originally employed by Celtic Technology Ltd on 1st March 1996. The company became Complete Bar Solutions in 2005. Mr Roche was the manager of approximately 16 people. The Respondent company engaged in contract work on behalf of various breweries in servicing the equipment in various licensed premises. Mr Roche submitted that his employment was terminated simply because he reached the retirement age of 65 on 7th March 2011….
Dismissal
There is no dispute that Mr Roche was compulsorily retired when he reached the age of 65.
The respondent initially stated that it does not have to objectively justify its retirement age because of Section 34(4) of the Acts:
Without prejudice to subsection (3) it shall not constitute discrimination on the age ground to fix different ages for the retirement (whether voluntary or compulsory) of employees or any class or description of employees.
However, it has been the practice of the Equality Tribunal to interpret Section 34 (4) in a harmonious way with Article 6 (1) of the Equal Treatment Directive:
Notwithstanding Article 2(2), Member States may provide
those differences of treatment on grounds of age shall not constitute discrimination, if, within the context of national law, they are objectively and reasonably justified by a legitimate aim, including legitimate employment policy, labour market and vocational training objectives, and if the means of achieving that aim are appropriate and necessary.[2]
Authority for this is Donnellan v The Minister for Justice, Equality and Law Reform where McKechnie, J. states:
Any discrimination with regards to age must, as put by that Directive, serve a legitimate aim or purpose, and the means taken to achieve that purpose must be appropriate and should go no further than is necessary, i.e. they should be proportionate.[3]
This has been followed in Saunders v CHC[4], Paul Doyle v ESB International[5], Rosanna Nolan v Quality Hotel[6] Patrick Dunican and Thomas Spain v Offaly Civil Defence[7] and McPhillips v ISS Facility Services[8]. This instant decision differs from the Labour Court case Hospira and Roper, Needham, Bryson, Ward and Dunnion as that dealt with redundancy payments under Section 34 (3) (d) of the Acts rather than Section 34(4) here..
Therefore, I am satisfied that the complainant has established a prima facie case of discriminatory dismissal and the respondent (even as a private actor) must provide me with objective justification. When the Heyday case was returned from the Court of Justice of European Union to the United Kingdom High Court, Blake J stated that:
I consider that examining the legislative context as a whole, there is a distinction between the social aim of confidence in the labour market and the application of that aim in the particular Regulations that permit employers to discriminate where they can show it is necessary and proportionate to do so in the interests of their business. The private employer is not afforded the wider margin of discretion in the application of the regulation that the State is. The flexibility shown to the employer in permitting it to endeavour to justify discriminatory treatment is not an aim in itself, but a means of advancing the social policy aim of confidence in the labour market. There is no reason to believe that in the special context of age discrimination, the kind of business practice reasons that can justify indirect discrimination are fundamentally different from those that can justify direct discrimination.[9] [my emphasis]
The reasons given by the respondent was that it was the custom and practice to retire people at 65 to create certainty in business planning and to encourage staff morale by using the consequential vacancy as an internal promotional opportunity. Mr A emphasised that because of the technical nature of their work a ‘man off the street’ could not be employed as it took years of experience to build up the technical expertise. This is in line with the Petersen case where the CJEU heldthat ‘in view of development in the employment situation in the sector concerned it does not appear unreasonable for the authorities of Member States to consider that the application of an age limit, leading to the withdrawal from the labour market of older practitioners, may make it possible to promote the employment of younger ones’[10] The Court goes on to say that ‘ Article 6 (1) of the Directive must be interpreted as not precluding such a measure where its aim is to share out employment opportunities among the generations in the profession of panel dentists, if, taking into account the situation in the labour market concerned the measure is appropriate and necessary for achieving that aim’.[11]
I find this is a legitimate aim of the respondent. It is also appropriate in that the respondent provided access (and contributed towards) to a defined contribution pension to be drawn down at age 65 so the employee had access to two income streams – an occupational pension and the State pension. This is similar to Fuchs and Kohler v Landhessen, where the CJEU found it relevant that the complainants were entitled to a reasonable pension.[12] I also find the aim to be necessary as the respondent could lose valuable staff if there were no promotional opportunities provided. Like Georgiev[13] Mr Roche was also offered a fixed-term contract of employment after he turned 65. Unlike Mr Georgiev he turned it down. It also differs from Mangold where the age at issue is much higher – that is 65 rather than 52.[14] In the circumstances of this case, I am satisfied that, cumulatively, these reasons objectively justify the compulsory retirement at 65. Therefore the respondent has successfully rebutted the case.
Decision
I have concluded my investigation of John Roche’s complaint. Based on all of the foregoing, I find, pursuant to Section 79(6) of the Acts, that the complainant was not discriminatorily dismissed on the grounds of age.
Thomas O’Mahony v Southwest Doctors On Call Ltd (trading as SouthDoc)
DEC-E2014-031
“Dismissal
4.3 Despite his lack of consent, Mr O’Mahony was compulsorily retired when he reached the age of 65.
4.4 Section 34(4) of the Acts states:
Without prejudice to subsection (3) it shall not constitute discrimination on the age ground to fix different ages for the retirement (whether voluntary or compulsory) of employees or any class or description of employees.
However, it has been the practice of the Equality Tribunal to interpret Section 34 (4) in a harmonious way with Article 6 (1) of the Equal Treatment Directive:
…..4.5 Authority for this is Donnellan v The Minister for Justice, Equality and Law Reform where McKechnie, J. states:
Any discrimination with regards to age must, as put by that Directive, serve a legitimate aim or purpose, and the means taken to achieve that purpose must be appropriate and should go no further than is necessary, i.e. they should be proportionate.[7]
4.6 This has been followed by the Tribunal in Saunders v CHC[8], Paul Doyle v ESB International[9], Rosanna Nolan v Quality Hotel[10] O’Neill v Fairview Motors[11]Patrick Dunican and Thomas Spain v Offaly Civil Defence[12] McPhillips v ISS Facility Services[13] and John Roche v Complete Bar Solutions[14]. This instant decision differs from the Labour Court case Hospira and Roper, Needham, Bryson, Ward and Dunnion as that dealt with redundancy payments under Section 34 (3)(d) of the Acts rather than Section 34(4) as in here.
4.7 Therefore, I am satisfied that the complainant has established a prima facie case of discriminatory dismissal and the respondent (even as a private actor) must provide me with objective justification.
4.8 As per Seldon, I fully accept the respondent’s reasoning that it is entitled to give a ‘business-centric’ justification for a compulsory retirement age. In that case Mr Seldon was forced by the respondent law firm to retire at 65 as required by the partnership deed. Mr Seldon lost his case as it was found that the needs of the firm to retain associates and plan for succession did indeed constitute legitimate aims for a fixed retirement age policy. In other words – intergenerational fairness in a practice where there was a greater mix of generations as well as more clearly-defined career trajectories than is the case with the respondent. These are legitimate aims for a law firm but they do not apply to the respondent here. The respondent was not trying to retain younger people or plan for succession; it was simply trying to reduce headcount in the least expensive way. Where Seldon also differs from this instant case is that Mr Seldon knew he had to retire at 65 from the time he became a partner.
4.9 It was obviously cheaper for the respondent to retire people than to make their positions redundant. About 30 people were let go around the same time – 24 were made redundant while 6 were forced to retire. Those made redundant received 4.5 weeks (plus a week) pay for every year they worked. Those who were retired only received a gratuity of 2 weeks pay in total. In Fuchs and Kohler v Land Hessen the European Court of Justice has held that budgetary restrictions can underpin the chosen policy but cost considerations cannot in themselves constitute a legitimate aim within the meaning of Article 6 (1).[15] This is known in the United Kingdom as the ‘costs plus’ rule.
4.10 Turning to the health and safety justification, one does not need to be an expert to realise the physical capabilities required to be a helicopter winch operator are much greater than taxiing doctors around. While occasionally driver/attendants may have to assist in lifting patients, this would only be in non-emergency situations or else an ambulance would be called. In the Saunders v CHC case the respondent provided empirical evidence to show that sick-leave doubled for winch operators aged over 50 thereby showing a valid reason for this fixed retirement age. The respondent in this case has provided no evidence to demonstrate why the chosen cut-off point of 65 is appropriate and necessary especially when employees happily worked beyond it prior to 2008. Nor did they show evidence of exploring a more proportionate response to safety concerns e.g. sending employees over 65 for an annual health check or as in Georgiev v Tehnickheski Unviersitet offer Mr O’Mahony a fixed term contract of employment after his 65th birthday.[16] Although both of these options would also have to be objectively justified as they choose 65 as an age-based criterion. However, they may be less assailable as they are less absolute than the compulsory retirement age that the respondent chose.
..
Decision
5.1 I have concluded my investigation of Thomas O’Mahony’s complaint. Based on all of the foregoing, I find, pursuant to Section 79(6) of the Acts, that the complainant was discriminatorily dismissed on the grounds of age.
Red Sail Frozen Foods Ltd ( In Receivership) -v- Companies Act
[2006] IEHC 328
Laffoy J.
“The Receiver’s concern is whether, having regard to the manner in which the employment contracts of employees of Frozen Foods and Kilmore were operated in practice, as a matter of law, the employees’ claims under the Minimum Notice and Terms of Employment Act, 1973 (the Act of 1973), the Unfair Dismissals Act, 1977 (the Act of 1977) and the Protection of Employees (Employers’ Insolvency) Act, 1984 (the Act of 1984) were enforceable and whether the Department’s claim to be subrogated is valid. It is regrettable that the Department was not represented before the court to argue for the enforceability of the claims, which it in fact discharged, and the validity of its claim to subrogation. The Receiver had envisaged that the issue would be argued as between the Minister/Department, on the one hand, and Frozen Foods and Kilmore, on the other hand. However, in the absence of the Minister, counsel for the Receiver set out the relevant legal principles for consideration by the court.
There is authority in this jurisdiction for the proposition that, where it is a term of a contract of employment that it will be implemented in a manner which defrauds the Revenue Commissioners, the contract is illegal and wholly unenforceable. That is the decision of this Court (Barron J.) in Hayden v. Sean Quinn Properties Limited (unreported, 6th December, 1993). On the facts of the case Barron J. held that there had been a breach of the plaintiff’s contract of employment. However, on the basis that the contract had provided for a basic salary to which there was added a sum by way of “non-taxable allowance to cover expenses”, he held that the contract itself was an illegal one. In dealing with the consequences of that, he referred the decision of the Court of Appeal of England and Wales in Napier v. National Business Agency Limited [1951] 2 All E.R. 264, stating that the facts in that case were almost identical to the facts in the case under consideration by him. He quoted the following passage from the judgment of Sir Raymond Evershed M.R. (at p. 266):
“It must be that, by making an agreement in that form the parties to it were doing that which they must be taken to know would be liable to defeat the proper claims of the Inland Revenue and to avoid altogether, or at least to postpone, the proper payment of income tax. If that is the right conclusion, it seems to me equally clear … that the agreement must be regarded as contrary to public policy. There is a strong legal obligation placed on all citizens to make true and faithful returns for tax purposes, and, if parties make an agreement which is designed to do the contrary, i.e. to mislead and to delay, it seems to me impossible for this court to enforce that contract at the suit of one party to it.”
Barron J. recorded that the Master of the Rolls then went on to consider whether or not the fraudulent part of the agreement could be severed and he held that it could not. The plaintiff’s claim was dismissed on the ground that the contract was unlawful and so unenforceable. Concluding his judgment, Barron J. stated as follows:
“In my view that case would have been decided in the same way and upon the same grounds in this jurisdiction at that date. Notwithstanding the very great changes that have occurred in society in this country since then I do not believe that public policy on this issue would have changed in any way. The plaintiff allowed himself to agree to something which would benefit the defendant at the expense of the Revenue. Such an agreement is unenforceable and the plaintiff’s claim must therefore fail.”
Similarly, in a statutory claim for unfair dismissal under the Act of 1977 and a claim under the Act of 1973, the Employment Appeals Tribunal determined that the claim should be dismissed due to the illegality of the contract of employment, which had the effect of rendering the contract unenforceable and depriving the claimant of the basis on which to establish that he was an employee as required by the Act of 1977, where the facts were that part of the claimant’s salary was treated in the employer’s books as an expense: Lewis v. Squash (Irl) Limited [1983] I.L.R.M. 363. That decision predated the amendment of the Act of 1977 by the Unfair Dismissals (Amendment) Act, 1993. The current position is that s. 8 of the Act of 1977, as amended, now contains a sub-s. (11) which provides as follows:
“Where the dismissal of an employee is an unfair dismissal and a term or condition of the contract of employment concerned contravened any provision of or made under the Income Tax Acts or the Social Welfare Acts, 1981 to 1993, the employee shall, notwithstanding the contravention, be entitled to redress under this Act, in respect of the dismissal.”
Because of that provision, counsel for the Receiver submitted that the pre-receivership practice of “under the counter” payments is not now an impediment to an employee successfully prosecuting a claim under the Act of 1977 and the Minister having a valid right of subrogation arising out of the discharge of that claim. Counsel for the Companies agreed that this is a correct statement of the law. Accordingly, I am satisfied that it is lawful for the Receiver to pay the components of the Minister’s claim and, insofar as it arises, the employees’ residual claims relating to unfair dismissal.
It was submitted on behalf of the Receiver that there is also a statutory solution to the issue insofar as it relates to claims under the Act of 1973. Those claims have all been the subject of awards made by the Employment Appeals Tribunal under s. 12 of the Act of 1973. The awards were made notwithstanding that the Receiver apprised the Employment Appeals Tribunal that certain employees of Frozen Foods and Kilmore were in regular receipt of cash payments in respect of which their employer did not make returns or pay the relevant PAYE/PRSI. The awards stand and, by virtue of s. 13 of the Act of 1973, they have preferential status under s. 285 of the Act of 1963. Although counsel for the Companies was not in agreement with the submission made by counsel for the Receiver on this point, it seems to me that, by virtue of the combined operation of ss. 12 and 13, the awards stand and they stand as debts which have preferential status. Therefore, I consider that it is lawful for the Receiver to pay the component of the subrogation claim and any component of the residual claims in relation to minimum notice as preferential claims.
That leaves the components of the claims in relation to arrears of wages and holiday pay to be considered. In relation to these components, it was submitted on behalf of the Companies that, as the Oireachtas had not intervened, the common law position should prevail and that these payments should be treated as deriving from an illegal contract and to be unenforceable. It was submitted that, as the Department paid the claims in the knowledge that a significant doubt arose as to their validity, the Companies should not bear the burden of a decision made by the Department, particularly in circumstances in which the Department has not been prepared to argue in favour of its entitlement to be paid. While, at first sight, that smacks of “the pot calling the kettle black”, that is invariably the perception which arises from the application of the common law principle that a contract tainted with illegality is not enforceable. Counsel for the Companies drew on the following passage from the judgment of Lord Goff in Tinsley v. Milligan [1994] 1 AC 340 (at p. 354) to illustrate the principle:
“The basic principle was stated long ago by Lord Mansfield C.J. in Holman v. Johnson [1775] 1 Cowp. 341, 343, in the context of the law of contract, when he said:
‘The objection, that a contract is immoral or illegal as between plaintiff and defendant sounds at all times very ill in the mouth of the defendant. It is not for his sake, however, that the objection is ever allowed; but it is founded in general principles of policy, which the defendant has the advantage of, contrary to the real justice, as between him and the plaintiff, by accident, if I may say so. The principle of public policy is this; ex dolo malo non oritur actio. No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. If, from the plaintiff’s own stating or otherwise, the cause of action appears to arise ex turpi causa, or the transgression of a positive law of this country, there the court says he has not right to be assisted. It is upon that ground the court goes; not for the sake of the defendant, but because they will not lend their aid to such a plaintiff. So if the plaintiff and the defendant were to change sides, and the defendant was to bring his action against the plaintiff, the latter would then have the advantage of it; for where both are equally in fault, potior est conditio defendentis.’
That principle has been applied again and again, for over two hundred years. It is applicable in courts of equity as well as courts of law … it is important to observe that, as Lord Mansfield made clear, the principle is not a principle of justice; it is a principle of policy, whose application is indiscriminate and so can lead to unfair consequences as between the parties to litigation. Moreover, the principle allows no room for the exercise of any discretion by the court in favour of one party or the other.”
Counsel for the Receiver referred the court to a recent decision of the Court of Appeal of England and Wales in Hall v. Woolston Hall Leisure Limited [2001] 1 WLR 225. That case arose out of a statute which gave effect in the United Kingdom to the provisions of the Equal Treatment Directive (Directive 76/207/EEC). The statute provided that in the case of unlawful discrimination on the ground of sex an industrial tribunal could award damages measured in the same manner as any other claim in tort. Accordingly, the Court of Appeal was not considering a claim in contract. While the observations made in relation to the application of the principle of illegality in the context of the law of contract were clearly obiter, they do help to explain the concept. In his judgment, Peter Gibson L.J. (at p. 234) identified two types of case in which it is well established that illegality renders a contract unenforceable from the outset: where it is entered into with the intention of committing an illegal act; and where the contract is expressly or implicitly prohibited by statute. He also identified a third category of cases in which a party may be prevented from enforcing the contract. That is where a contract, lawful when made, is illegally performed and the party participated in that illegal performance. In summarising the position under the law of contract he stated as follows (at p. 236):
“In cases where the contract of employment is neither entered into for an illegal purpose nor prohibited by statute, the illegal performance of the contract will not render the contract unenforceable unless in addition to knowledge of the facts which make the performance illegal the employee actively participates in the illegal performance. It is a question of fact in each case whether there has been a sufficient degree of participation by the employee.”
Mance L.J. (at p. 246) broadly agreed with that dictum but pointed out that the conceptual basis upon which a contract not illegal or prohibited when made may become unenforceable due to the manner of its performance is open to debate.
…..It would appear, on the basis of the evidence before the court, that the relevant officers of the Department either ignored the anomalous state of the law, which has not translated the protection given in s. 8(11) of the Act of 1977 to redress under the Act of 1984, and took a pragmatic view in relation to the matter and made payments from the Redundancy and Employers’ Insolvency Fund on the basis of the taxed payments which had been made to the employees without regard to the issue of enforceability of his or her employment contract at the suit of each individual employee, or, alternatively, were satisfied that no issue as to enforceability arose. Given that the Department did not avail of the opportunity to apprise the court of the basis on which it acted, I consider it reasonable to infer that a pragmatic view was adopted. While I am conscious that this is not a principled way of dealing with the issue, on the state of the evidence, I consider that the court has little option but to accept the approach which was adopted by the Department. Accordingly, I hold that it is lawful for the Receiver to pay the arrears of wages and holiday pay components of the preferential claims made by the Department. “
Higgins & Anor -v- Bank of Ireland & Anor
[2013] IEHC 6
O’Keeffe J.
“35. The plaintiff’s case, insofar as the termination of his employment is concerned, appears to be:-
1. that his dismissal resulted from a flawed disciplinary process that was part of an unlawful malicious conspiracy to which the person who conducted the inquiry was a party
2. That consequently, by definition, his dismissal was in breach of fair procedures.
3. That, even if there was no conspiracy, there was a breach of fair procedures such as to render his dismissal unlawful
536. The plaintiff’s written submission appear to rely upon a concept of wrongful dismissal that is much wider than the action for wrongful dismissal that is recognized in law. At common law the action for wrongful dismissal lies where a contract of employment is terminated without reasonable notice. Quite separately from the action for wrongful dismissal, in the case of a dismissal for misconduct, the Court has a jurisdiction to intervene if there has been a breach of fair procedures. The plaintiff’s claim in these proceedings is not a wrongful dismissal action for failure to give reasonable notice.
537. It is the defendant’s case that, as a matter of law, the Court does not have any jurisdiction to intervene in relation to the termination of the plaintiff’s employment unless it reaches a finding of a breach of the rules of natural justice, either on the basis of the existence of a conspiracy or otherwise.
538. The law in relation to wrongful dismissal is that, absent express provisions to the contrary, employment contracts can be terminated by notice for good reason, bad reason or no reason. In Sheey v. Ryan and Moriarity [2008] 4 IR 258 , Geoghegan J. stated as follows:-
“The judge in fact went on to point out that the plaintiff had chosen a common law remedy. She could have initiated proceedings under the Unfair Dismissals Act 1967 or under the Redundancy Payments Act. The trial judge then said that the position at common law is that an employer is entitled to dismiss an employee for any reason or no reason on giving reasonable notice. I would slightly qualify that by saying that it does depend on the contract but in the absence of clear terms to the contrary which are unambiguous and unequivocal, that clearly is the position.”
539. A similar view was expressed in England in R v. Hull University [1999] 4 All ER 747 where Donaldson L.J. put it in the following terms:-
“In the ordinary course of events the legal relationship of employer and employee, which is the relationship with which we are concerned, can be determined by either party with or without notice and with or without “good” or any cause. It is a personal relationship and cannot survive its repudiation by either party whether or not the repudiation is accepted by the other. The relationship having ended, all that remains is to determine whether it was wrongful dismissal, which turns on the terms of the contract, or was an unfair dismissal, which turns on the provisions of the relevant English statute.”
540. The Courts are unwilling to extend the common law remedies available in wrongful dismissal in circumstances where the Oireachtas has created an entirely stand alone regime of unfair dismissal. The leading case in this area in England Johnson v. Unysis [2001] ICR 480 sets out the principles. In that case the employee claimed common law damages for breach of the implied term of trust and confidence in an employment relationship. He alleged that, because of the manner in which he had been dismissed, he had suffered a mental breakdown and was unable to work. His claim was struck out as disclosing no reasonable cause of action. The principle annunciated in Johnson is that the implied term of trust and confidence cannot be extended to allow an employee to seek to recover damages for loss arising from the manner of his dismissal. In that case the English Court was unwilling to in effect create a new common law right governing the same ground as that provided under the English statutory scheme similar to that applying in this jurisdiction under the Unfair Dismissals Act. Nicholls LJ. stated that it:-
“…would fly in the face of the limits Parliament has already prescribed on matters such as the classes of employees who have the benefit of the statutory right, the amount of compensation payable and the short time limits for making claims.”
541. What has become known as the Johnson exclusion area has developed from the decision in Johnson v. Unysis. In essence the Courts recognise that a dismissed employee may be compensated for damage caused to him (including personal injury) where the wrong occurred prior to the dismissal. The extent of that exclusion area was considered in Eastwood v. Magnox Electric Plc [2004] IRLR 733 where Nicholls LJ. made the following observations:-
“27. Identifying the boundary of the ‘Johnson exclusion area’, as it has been called, is comparatively straightforward. The statutory code provides remedies for infringement of the statutory right not to be dismissed unfairly. An employee’s remedy for unfair dismissal, whether actual or constructive, is the remedy provided by statute. If before his dismissal, whether actual or constructive, an employee has acquired a cause of action at law, for breach of contract or otherwise, that cause of action remains unimpaired by his subsequent unfair dismissal and the statutory rights flowing therefrom. By definition, in law such a cause of action exists independently of the dismissal.
28. In the ordinary course, suspension apart, an employer’s failure to act fairly in the steps leading to dismissal does not of itself cause the employee financial loss. The loss arises when the employee is dismissed and it arises by reason of his dismissal. Then the resultant claim for loss falls squarely within the Johnson exclusion area.”
542. In the instant case the plaintiff determined, as did the plaintiff in Sheey v. Ryan, to launch his action at common law rather than taking a claim pursuant to the statutory provisions. By doing so he limited his remedies and in particular he cannot ask this Court to act as some type of employment appeals tribunal to determine the fairness of the substantive grounds justifying his dismissal.
543. In Maha Lingam v. HSE [2006] ELR 137, Fennelly J. giving the Judgment for the Court stated as follows:-
“the employer was entitled to give that notice so long as he complied with the contractual obligation of reasonable notice whether he had good reason or bad for doing it. That is the common law position and it is an entirely different matter as to whether a person has been unfairly dismissed and a different scheme of statutory remedy is available to any person dismissed whether with or without notice under the Unfair Dismissals Act, but this is not such an application. This is an action brought at common law for wrongful dismissal in the context of which an injunction was sought.”
544. In McGrath v. Trintech Technologies Ltd and Trintech Group Plc [2005] 16 ELR 49, Laffoy J, at p.391 stated as follows:-
“The first point to be made in relation to that submission is that the plaintiff has not invoked any statutory provision in support of his claim. Although decisions of the Employment Appeals Tribunal were cited, I did not understand the plaintiff to argue that the principles applicable under the statutory scheme should be imported into common law. On the authority of the judgment of Carroll J. in Orr v. Zomax Ltd. [2004] IEHC 131, [2004] 1 IR 486, it would not have been open to them to do so. His claim is grounded entirely in the common law – in contract and tort. In particular his claims for declaratory relief are based on the express or implied terms which he contends for, not on any statutory protection. On the authority of the decision of the Supreme Court in Parsons v. Iarnród Éireann [1997] 2 I.R. 523, however, the plaintiff is not entitled to any declaration which extends beyond the ambit of the contractual rights which he establishes and the breach of those rights. On the same authority, the only other remedy to which he is entitled, if he establishes his claim in contract, is damages.”
545. Prior to her making that observation Laffoy J. expressly referred to Sheehy v. Ryan, Hickey v. The Eastern Health Board, Johnson v. Unysis Ltd and Malik v. BCCI. This matter was also referred to in some detail by Clarke J. in Carroll v. Bus Atha Cliath [2005] 4 IR 184. At page 208 of the Judgment he stated as follows:-
“It is, of course, the case that Parsons v. Iarnród Éireann [1997] 2 I.R. 523 was concerned with dismissal rather than with breaches of terms of an employee’s contract of employment. However, it does appear to be a recent reiteration of the general principle of law to the effect that a court will not grant orders which have, in substance, the effect of ordering specific performance of a contract of employment. In Cassidy v. Shannon Castle Banquets [2000] E.L.R. 248 Budd J. granted a declaration that a purported dismissal was in breach of natural and constitutional justice and that, as a consequence, the dismissal was without efficacy and invalid. However it is made clear that the above declarations did not coerce a reinstatement. In that respect Parsons v. Iarnród Éireann [1997] 2 I.R. 523 was distinguished. It is also clear from a consideration of the judgment of Budd J. in Cassidy v. Shannon Castle Banquets [2000] E.L.R. 248 that a factor taken into account in that case was the entitlement of the plaintiff to clear his name. In that respect it is of some importance to note that there have been significant developments in the typical terms of employment of many employees in recent years. Such changes have a material effect upon the circumstances in which, as a matter of contract, many employees can be dismissed.
The traditional position at common law was that a contract of employment could be terminated on reasonable notice without giving any reason. In those circumstances it was obvious that the only remedy for a breach of contract by way of dismissal was for the payment of the amount that would have been earned had appropriate notice been given. However, it is now frequently the case that employees cannot be dismissed, as a matter of contract, save for good reason such as incapacity, stated misbehaviour, redundancy or the like. It would appear that the development of the law in relation to affording employees a certain compliance with the rules of natural justice in respect of possible dismissal derives, at least in material part, from this development. If the stated reason for seeking to dismiss an employee is an allegation of misconduct then the courts have, consistently, held that there is an obligation to afford that employee fair procedures in respect of any determination leading to such a dismissal. That does not alter the fact that an employer may still, if he is contractually free so to do, dismiss an employee for no reason. It simply means that where an employer is obliged to rely upon stated misconduct for a dismissal or, where not so obliged chooses to rely upon stated misconduct, the employer concerned is obliged to conduct the process leading to a determination as to whether there was such misconduct in accordance with many of the principles of natural justice.
In those circumstances it seems to me that it is open to the court to grant declarations concerning most alleged breaches by an employer of his contractual obligations. Parsons v. Iarnród Éireann [1997] 2 I.R. 523 imposes a limit in cases where the declaration could not avail the plaintiff in any practical way.
Where, as here, the consequence of a declaration as to a breach in respect of the plaintiff’s entitlement to date simply gives rise to a claim in damages then no difficulty, therefore, arises.”
546. In Nolan v. Emo Oil Services Ltd [2009] IEHC 15 Laffoy J. dealt expressly with an attempt by a plaintiff to litigate what was in truth an unfair dismissal claim that is an allegation that he was either unfairly selected for redundancy or alternatively the grounds for his dismissal was not in truth redundancy. She described the plaintiff’s claim in the following terms:-
“Although not articulated in this way by counsel for the plaintiff, the plaintiff’s case, as I understand it, is that it is an implied term of his contract of employment that, notwithstanding the express right to terminate his contract on notice, the plaintiff is entitled to litigate the fairness or otherwise of the termination of his contract on the grounds of redundancy by reference to the statutory code in plenary proceedings in this Court. I base that understanding on the submission of counsel for the plaintiff that the defendant, as his employer, owed a duty of good faith to the plaintiff, in consequence of which it was an implied term of the plaintiff’s contract of employment that, if he was to be let go on the grounds of redundancy, there would have to be a valid redundancy.”
547. Laffoy J. then went on to make reference to the Supreme Court decision in Maha Lingam and noted that in that case the Supreme Court had made reference to Eastwood, a case in which the House of Lords had considered its earlier decision in Johnson v. Unysis Ltd. She then quoted from Lord Nichols and his views on the “Johnson exclusion area” and she then dealt with the case at issue in the following terms:-
“In this case, the plaintiff’s employment with the defendant came to an end on 30th November, 2008 and his last day at work was the 28th November, 2008. In essence, what he is trying to achieve by these proceedings is to get his job back. He got the required notice under his contract of employment and his contract of employment was lawfully terminated. If, as he contends, his dismissal was unfair, then the remedy available to him is the remedy provided by statute. As a matter of fact, that is the only remedy he could pursue because, in my view, he had not acquired a cause of action for breach of contract or otherwise prior to his dismissal. In the circumstances, there is no remedy which he can pursue in this Court.
That conclusion is supported by the decisions of the Supreme Court in the Maha Lingham case and in the Sheehy case.
In my view, it is also correct in principle. There may be situations in which, on the reasoning of Lord Nicholls in the Eastwood case, a dismissed employee is entitled to maintain an action at common law, for example, where he has suffered financial loss from psychiatric or other illness as a result of pre-dismissal unfair treatment which would give rise to an action for damages. That scenario was signposted by Lord Steyn in the Johnson case and recognised in the Eastwood case. The plaintiff’s situation here is entirely different. In effect, he is inviting the Court to develop its common law jurisdiction by reference to the statutory concepts of redundancy and unfair dismissal. Specifically, the Court was invited by counsel for the plaintiff to have regard to the statutory definition of “redundancy” in s. 7 of the Redundancy Payments Act 1967, as amended. The Oireachtas in enacting the Unfair Dismissal Acts 1977 to 2008 and introducing the concept of unfair dismissal provided for specific remedies for unfair dismissal and specific procedures for obtaining such remedies in specific forums, before a Rights Commissioner or the Employment Appeals Tribunal. For the Courts to expand its common law jurisdiction in parallel to the statutory code in relation to unfair dismissal and redundancy would, to adopt Lord Nicholls’s terminology, end up supplanting part of the code.”
548. The above cases from this jurisdiction recite what are the applicable principles to be considered and applied. In the instant case much of what the plaintiff claims relates to the unfairness of the decision to dismiss as distinct from wrongful dismissal and, as such, this Court has no jurisdiction in same.
Stephens -v- Archaeological Development Services Ltd
[2010] IEHC 540
Judgment by: Mac Menamin J
“48. Counsel for the defendant, however, relies strongly on the decision of the Supreme Court in Parsons v. Iarnród Eireann [1997] 2 I.R. 523. The facts of Parsons bear some consideration. Arising from a labour dispute, the plaintiff appeared before a disciplinary committee of that defendant company. He was dismissed from his employment. He informed the defendant he intended to pursue a claim through the rights commissioner’s office under the Unfair Dismissals Act 1977. The matter was heard before a rights commissioner, who recommended the plaintiff should proceed to the next stage of the defendant’s internal disciplinary proceedings. This took place and the plaintiffs dismissal was confirmed. Subsequently, the plaintiff issued proceedings seeking a declaration that the decision to dismiss him from his employment was null and void, and an injunction compelling the defendant to reinstate him and damages for breach of contract and wrongful and/or unfair dismissal. As can be seen then, in Parsons, the plaintiff had invoked the rights commissioner procedure. Subsequently, as well as claiming injunctions, he also sought damages for what was termed in the statement of claim “wrongful and/or unfair dismissal”. The claim was doomed to failure in the courts on two separate grounds: first the invocation of the rights commissioner procedure; second the claim for wrongful dismissal.
49. In the course of his judgment, speaking for the Supreme Court, Barrington J. set out the statutory boundaries in this way:-
“… Section 15 of the Unfair Dismissals Act, 1977, provides that the worker must chose between suing for damages at common law and claiming relief under the new act. Sub-section 2 accordingly provides that if he claims relief under the Act of 1977, he is not entitled to recover damages at common law; while subs. 3 provides that where proceedings for damages at common law for wrongful dismissal are initiated by or on behalf of an employee the employee shall not be entitled to redress under the Unfair Dismissals Act, 1977, in respect of the same dismissal ….” (p. 529)
He added later in the judgment, at p. 530:-
“If the plaintiff loses his right to sue for damages at common law the heart is gone out of his claim and there is no other freestanding relief which he can claim at law or in equity ….”
The issue in this case is whether Parsons is a binding authority or whether, on the facts, it should be distinguished.
50. Here there is no plea of wrongful dismissal. The plaintiff has not invoked the barring mechanism of rights commissioner proceedings. A further issue then arises as to whether, in any case the facts and circumstances of the Tribunal claim and that in the High Court are separate and severable. There is helpful authority on this issue.
51. In Quigley v. Complex Tooling and Moulding Ltd. [2009] 1 IR 349, Lavan J. found that, where an employee had also acquired a common law cause of action against an employer prior to his dismissal, his cause of action in tort might nonetheless proceed in the High Court as well as a Tribunal claim. Where the facts of that High Court claim were independent of the subsequent dismissal therefore, a claim might be pursued in the Tribunal. In so finding, that Judge specifically approved the House of Lords decision of Eastwood v. Magnox Electric plc. [2004] 3 WLR 322, and did not follow earlier dicta of that same court in Johnson v. Unisys Ltd. [2003] I A.C 518. The background case law to the Eastwood decision is of some importance. I will deal with this briefly.
52. In Mahmud v. Bank of Credit and Commerce International SA (in liq.) [1997] 3 All ER 1, the House of Lords had considered the application of the implied term of trust and confidence in employment contracts. There, the plaintiff claimed damages at common law for breach of this term. The House of Lords held that the claim was well founded as a matter of law. It held that damages for the trust and confidence implied term should be assessed in accordance with ordinary contractual principles.
…..57. It is undoubtedly true that the terms of the United Kingdom legislation differs somewhat from the Unfair Dismissals Acts. However, I am satisfied that the observations in Quigley by Lavan J. are illustrative of a distinction the lines of which were fully set out in the Eastwood, and which apply in our law. Provided a demarcation line can be similarly drawn, the effect of Quigley should be followed by this court. I say this subject to two caveats. First, clearly, there can be no question of double recovery; second; it may be necessary for a court to intervene by way of case management in order to identify precisely the case to be made before the Tribunal and that which may ultimately come before this Court. I mention in passing that Quigley was successfully appealed: however that appeal did not concern the point at issue
……
59. The plaintiff says that the matters pleaded refer to conduct during the continuation of her employment and in no way refer to the manner of her dismissal; that the facts and circumstances pre-date her date of dismissal by over eighteen months at the earliest stage, and six months at the latest date. She says that the employment appeal proceedings refer to the actual dismissal, how it came about, and whether the employer’s actions were reasonable or not in the context of her resignation. I accept the proposition that this plaintiff, on these facts, may proceed before the Employment Appeals Tribunal, and, on separate aspects of the facts in the High Court.
60. I find support for the proposition that the plaintiff may (if the case is made out on evidence) recover damages for mental distress, for breach of implied terms of trust and confidence in a breach of contract proceedings (see Pickering v. Microsoft Ireland Operators Ltd. [2006] 17 ELR 65; Berber v. Dunnes Stores [2009] IESC 10) (Unreported, Supreme Court,Ii11 February, 2009). This aspect of the notice of motion must fail.
Quigley -v- Complex Tooling & Moulding Ltd
[2008] IESC 44
Fennelly J.
“35 An examination of the law on unfair dismissal is necessary to answer the first question.
It has been held in this jurisdiction, in Parsons v. Iarnrod Eireann [1997] 2 I.R. 523, that a plaintiff was precluded, by virtue of the provisions of s. 15 of the Unfair Dismissal Act 1977, as amended, from bringing an action at common law in respect of a dismissal which had previously been the subject of a claim to a rights commissioner under the Act of 1977. Explaining the relationship of the statutory code to the common law jurisdiction, in delivering judgment in the Supreme Court Barrington J. stated as follows at p. 529:-
“What the Unfair Dismissals Act 1977 does is to give the worker, who feels that he has been unfairly dismissed, an additional remedy which may carry with it the very far-reaching relief of reinstatement in his previous employment. It does not limit the worker’s rights; it extends them. At the same time, s. 15 of the Unfair Dismissals Act 1977, provides that the worker must choose between suing for damages at common law and claiming relief under the new Act. Sub-section (2) accordingly provides that if he claims relief under the Act he is not entitled to recover damages at common law; while sub-section (3) provides that where proceedings for damages at common law for wrongful dismissal are initiated by or on behalf of an employee the employee shall not be entitled to redress under the Unfair Dismissals Act 1977, in respect of the same dismissal.
The traditional relief at common law for unfair dismissal was a claim for damages. The plaintiff may also have been entitled to declarations in certain circumstances, for instance, that there was an implied term in his contract entitling him to fair procedures before he was dismissed. But such declarations were in aid of the common law remedy and had no independent existence apart from it. If the plaintiff loses his right to sue for damages at common law the heart has gone out of his claim and there is no other free-standing relief which he can claim at law or in equity.”
[36] It is submitted by counsel for the plaintiff that when an employee suffers from an illness caused by his pre-dismissal unfair treatment he has a common law cause of action which precedes and is independent of, his subsequent dismissal. In support of this submission, counsel for the plaintiff referred to the recent English decision of Eastwood v. Magnox Electric plc. [2004] UKHL 35, [2005] 1A.C. 503. In this case, the plaintiffs commenced proceedings for negligence and breach of contract against their former employers. Both men brought unfair dismissal proceedings which were settled. In their common law proceedings, which were considered by the House of Lords, they alleged they suffered personal injuries in the form of psychiatric illnesses caused by a deliberate course of conduct by certain individuals using the machinery of the disciplinary process.
[37] The claims against the defendant employers were dismissed by the High Court and then the Court of Appeal on the basis that all the circumstances attending their dismissals were covered by the Employment Tribunal.
[38] However the House of Lords unanimously overturned the Court of Appeal and ruled that the claims could proceed. Lord Nicholls of Birkenhead stated at para. 27 that:-
“If before his dismissal, whether actual or constructive, an employee has acquired a cause of action at law, for breach of contract or otherwise, that cause of action remains unimpaired by his subsequent unfair dismissal and the statutory rights flowing therefrom. By definition, in law such a cause of action exists independently of the dismissal.”
And at para. 29 continued:-
“In such cases, the employee has a common law cause of action which precedes, and is independent of, his subsequent dismissal. In respect of his subsequent dismissal he may of course present a claim to an employment tribunal. If he brings proceedings both in court and before a tribunal he cannot recover any overlapping heads of loss twice over.”
Lord Nicholls, at para. 13 of his speech, described the statutory code of unfair dismissals as providing “a floor and not a ceiling”.
Counsel for the plaintiff submitted that the decision in Eastwood v. Magnox Electric plc. [2004] UKHL 35, [2005] 1 A.C. 503 is not inconsistent with the law on unfair dismissals in this jurisdiction. I take the view that this would seem to be the preferable interpretation. It has not been proved by the defendant that the injuries suffered by the plaintiff on account of harassment in the workplace were not a separate cause of action to the plaintiff’s unfair dismissal action.
[39] Counsel for the defendant submitted that the injury to the plaintiff was caused by the dismissal and therefore it falls inside the remit of the Employment Appeals Tribunal. In support of this submission, counsel for the defendant referred to the decision of the House of Lords in Johnson v. Unisys Ltd. [2001] UKHL 13, [2003] 1 A.C. 518 which looked at the interaction between statutory unfair dismissal claims and claims for damages arising out of dismissal. In that case, the plaintiff, who had been the beneficiary of an award from a statutory industrial tribunal, which had upheld his complaint that he had been unfairly summarily dismissed, initiated a civil action against his employer for breach of contract and negligence alleging that the manner of his dismissal had caused him to suffer a nervous breakdown and had made it impossible to find work.
The House of Lords held that an employee had no right of action at common law to recover financial losses arising from the unfair manner of his dismissal.
Johnson has been quoted with approval in this jurisdiction by Carroll J. in Orr v. Zomax Limited [2000] IEHC 131, [2004] 1 I.R. 486.
Counsel for both the defendant and the plaintiff referred to the recent judgement of Laffoy J in McGrath v. Trintech Technologies Ltd. [2004] IEHC 342, [2005] 4 I.R. 382. Here one of the issues before the court was whether this principle could accommodate the implication into the contract of a more specific term that the plaintiff would not be dismissed without due cause or without reasonable notice. In rejecting this argument, Laffoy J. analysed the decision in Johnson and at p. 395 states:-
“[28] The essence of the plaintiff’s case, however, is that there should be implied into his contract with the defendant a term that mere compliance with the express notice provision in the contract would not validly and effectively terminate the contractual relationship at common law. There is no authority for this proposition. I am persuaded by the authorities cited by counsel that the proposition is not sound in principle. Accordingly, I have come to the conclusion that terms in relation to dismissal and redundancy on the lines pleaded by the plaintiff cannot be implied into the plaintiff’s contract of employment with the first defendant so as to give rise to a cause of action at common law.”
[40] It is my opinion, however, that the argument being made in this case is different in that the plaintiff, unlike in McGrath v. Trintech Technologies Ltd. [2004] IEHC 342, [2005] 4 I.R. 382, does not seek to challenge his dismissal but rather contends that the conduct of the defendant during the course of his employment was such as to amount to a breach of an implied duty to maintain trust and confidence during the employment relationship and this caused him injury. In the plaintiff’s case the remedy ordered by the Employment Appeals Tribunal was re-engagement.
[41] Accordingly it was submitted that there is no basis for precluding the plaintiff in these proceedings from claiming compensation for personal injuries. In doing so, he cannot be accused of having “a second bite at the cherry”, asper Lord Nicholls in Eastwood v. Magnox Electric plc. [2004] UKHL 35, [2005] 1 A.C. 503 at para. 23 thereof.
[42] In my opinion, the question of what loss the Employment Appeals Tribunal can award compensation for is not relevant as evidence has been given that the tribunal did not look at the plaintiff’s claims of harassment during the appeal. Under s. 7(1)(c) of the Unfair Dismissals Act 1977, the Employment Appeals Tribunal cannot award compensation for anything other than financial loss in an unfair dismissal claim (save in exceptional circumstance where if there is no financial loss, the Employment Appeals Tribunal can award compensation limited to a maximum of four weeks pay).
The plaintiff has offered uncontradicted evidence as to the immediate effect of the harassment on his state of health. Evidence has been offered to prove that the injuries of which the plaintiff complains had their root in the treatment of him by the servants of the defendant during his employment with the defendant.
[43] Given this, I would accept the plaintiff’s argument that the claim for injuries resulting from harassment in the workplace is a separate and distinct cause of action to his claim for unfair dismissal.
Duty of employer to protect employee from bullying in the workplace
[44] Secondly, it falls to be decided whether the defendant was in breach of it’s duty to the plaintiff as an employee to provide a safe place of work by exposing the plaintiff to bullying in the workplace, and that by being in breach of this duty the defendant has caused the plaintiff to suffer personal injuries.
Flynn v. Power
[1985] IEHC 1
Costello J .
“. The Act of 1977 contains a new and self-contained code of rights and remedies in cases in which an employee to which the Act applies is “unfairly dismissed”, as defined. When an employer terminates a contract of employment this is deemed to be a “dismissal” (s. 1), and every dismissal is deemed to be unfair unless “having regard to all the circumstances there were substantial grounds justifying the dismissal” (s. 6, sub-s. 1). The main and substantial issue in this case is whether in all the circumstances it can be said that the respondents had substantial grounds for terminating the appellant’s employment in their school. But this is not the only one. The appellant relies on a provision of the Act by which a dismissal of an employee shall be deemed to be unfair if it results wholly or mainly from the pregnancy of the employee or matters connected therewith (s. 6, sub-s. 2 (f)) and before going any further I will deal with that point now. It seems to me to be perfectly clear that in this case the appellant’s dismissal did not “result” from her pregnancy or matters connected with it and that the sub-section to which I have referred does not assist her case. It resulted from the appellant’s refusal to terminate a relationship of which the respondents had complained long before the fact of her pregnancy was known to them. No doubt the pregnancy confirmed (if a confirmation was needed) the nature of the relationship, but the warning of dismissal had been given before such confirmation had been obtained and had it continued, dismissal would have occurred in any event.
11. On the main issue I was referred by counsel to Spiller v. Wallis Ltd. (1975) IRLR 362; Cassidy v. Goodman Ltd. (1975) IRLR 86; Whitlow v. Alkanet Construction Ltd. (1975) IRLR 321; Treganowan v. Robert Knee &Co. Ltd. (1975) IRLR 247; Nottinghamshire Co. Co. v. Bowly (1978) IRLR 252; Newman v. Alarmco Ltd. (1976) IRLR 45 and Wiseman v. Sa/ford CityCouncil (1981) IRLR 202.
12. Whilst these cases are not directly in point they do assist by showing that under corresponding English legislation a rigid line is not drawn between private sexual behaviour outside the place of work (which can never be used to justify a dismissal), and conduct in the place of work (which may do so). One of the principles they illustrate (and indeed it is one accepted as applicable to the provisions of the 1977 Act) is that an employee’s conduct in sexual matters outside the place of employment may justify dismissal if it can be shown that it is capable of damaging the employer’s business.
15. I come now to consider whether, hearing in mind that the onus of proof is on the respondents, it can objectively be said that there were substantial grounds which justified the dismissal in all the circumstances of this case.
16. The gravamen of the respondents’ complaint against the appellant is, in the words of the letter of the 6th August, 1982, that the appellant openly rejected the norms of behaviour and the ideals which the school existed to promote. The appellant has not contested, as a matter of principle, the right of school authorities to dismiss a teacher who openly rejects its norms and ideals. Nor has she denied that she is living by a code of conduct which is different in important respects from that which the school has been established to foster and instill in its pupils. Her claim is that her private life is her own affair and that there has been no “open” rejection by her of the school’s norms, as alleged.
17. In adjudicating on this dispute it is important to appreciate that two of the important circumstances in which the dismissal occurred are these. Firstly, the appellant was employed in a religious, not a lay, school and the evidence establishes that such a school has long established and well known aims and objectives as well as requirements for its lay staff which are different to those of a secular institution. Secondly, the evidence establishes that the dismissal occurred not as a punishment for breach of a code of conduct taught in the school, but arising from an assessment made of the effect on the school and its pupils of a continued breach of that code by the appellant. In making their assessment the respondents were, it seems to me, entitled to take into account that the appellant’s association was carried on openly and publicly in a country town of quite a small population; that within a short period of time it would have been common knowledge in the town (a) that the appellant was associating on a regular basis with a member of the town’s business community whose wife had recently left him, (b) later, that she had commenced to live with him as man and wife, and (c) that she had a child by him. But what is more to the point, the respondents were entitled to conclude that these facts must have become known to many if not all the pupils in the school, and that they would regard her conduct as a rejection of the norms of behaviour and the ideals which the school was endeavouring to instill in and set for them. I do not think that the respondents over emphasised the power of example on the lives of the pupils in the school and they were entitled to conclude that the appellant’s conduct was capable of damaging their efforts to foster in their pupils norms of behaviour and religious tenets which the school had been established to promote. In these circumstances they had substantial grounds for dismissing her.
18. Finally, the appellant submitted that as there was no express term in her contract of employment bearing on her private life or requiring her adherence to a particular moral code and as none is to be implied, then the dismissal is unfair because she was under no contractual obligation to act as the respondents had required of her. The contract of employment in this case was a very informal one. But because of the view I take of the 1977 Act it is unnecessary for me to decide what, if any, implied terms it contained. Undoubtedly, in certain circumstances it could be unreasonable to dismiss an employee for conduct which is not prohibited by the terms of the contract of employment. But in considering a claim under the Act the test is: in all the circumstances were there substantial grounds to justify the dismissal? and not: was the conduct relied on to justify the dismissal prohibited by contract? In reaching a conclusion on this issue the terms of an employee’s contract are part of, but only part of, the overall circumstances to be considered by the Court. In the present case, the appellant knew from her own upbringing and previous experience as a teacher the sort of school in which she sought employment, and should have been well aware of the obligations she would undertake by joining its staff. Even if the contract of employment was silent on the point, (a), she must have known that objection could be taken that her conduct violated her obligations to the school and, (b), she was in any event given an opportunity to alter it. It cannot therefore be said that in this case the absence of an express or implied contractual term relevant to the matters of complaint tainted with unfairness a dismissal which otherwise was justified. “
Employer v Employee
UD1201/2012
EAT
“The appellant was an employee with the Council as part of a FAS Community Employment Scheme on fixed term contracts. The first contract commenced on 16th March 2009 until 23rd October 2009. Her second contract ran from 26th October 2009 until 22nd October 2010. All contracts ended on 22nd October 2010 and a list was compiled with twelve names on it, including the claimant. Eleven of the people named on the list had their contract renewed. The clamant was the only person that was not given another fixed term contract. The claimant was dismissed on the recommendation of her Line Manager.
Determination:
Having considered the evidenced adduced at the hearing and the submission of the claimant and respondent the Tribunal finds that the claimant was unfairly dismissed in circumstances where there was a further two year’s work available on the scheme but it was not offered to the claimant and no reason was given to the claimant at the time for not so offering. The
Tribunal finds that the respondent did not act with mala fides but rather acted on the recommendation of the scheme supervisor as was their normal practice. The Tribunal finds that the scheme supervisor gave the respondent no reason for such recommendation and the respondent sought none at the material time.
Accordingly the claim under the Unfair Dismissals Acts 1977-2007 succeeds and the Tribunal directs reinstatement of the claimant as and from 22 October 2010 for the remaining two years.”
R & R v Hyper Trust Limited
Paul Kenny v Tegral Building Products Limited
UD837/2004
Employment Appeals Tribunal
16 January 2006
[2006] 17 E.L.R. 309
At the outset of the hearing the Tribunal heard a preliminary application, made by the respondent’s representative, that the claimant was ineligible to make a claim for unfair dismissal as the circumstances of his employment fell within s.4 of the Unfair Dismissals Act 1977 which reads:
“This Act shall not apply in relation to the dismissal of a person who is or was employed under a statutory apprenticeship if the dismissal takes place within six months after the commencement of the apprenticeship or within one month after the completion of the apprenticeship.”
The Tribunal heard that the claimant started his apprenticeship with the respondent in January 2000 and his employment was terminated on completion of his apprenticeship on September 26, 2003.
The claimant was then offered and accepted employment with the respondent on a fixed-term contract from October 20, 2003 to December 19, 2003. This was extended until April 16, 2004 on a week-to-week basis.
*311
It is the respondent’s position that s.4 of the Unfair Dismissals Act 1977 debars the claimant from making a claim for unfair dismissal as his employment was terminated within one month of the completion of his apprenticeship.
The period of the claimant’s subsequent employment also precludes the claimant from making a claim as the period October 2003 to April 16, 2004 does not provide him with the required one year’s service.
The claimant’s representative told the Tribunal that the claimant began his employment with the respondent in January 2000 and was let go September 26, 2003. A matter of just weeks later the respondent rehired the claimant under contract until December 19, 2003 and on week-to-week contracts until his dismissal in April 2004. It was submitted that to dismiss in September 2003 and re-employ a short number of weeks later should not constitute a break in service. Section 6 of the first schedule of the Minimum Notice and Terms of Employment Act 1973 reads as follows:
“The continuous service of an employee in his employment shall not be broken by the dismissal of the employee by his employer followed by the immediate re-employment of the employee.”
Service under the Unfair Dismissals Act 1977 to 2001 is defined in the same terms as found in s.6 of the Minimum Notice and Terms of Employment Acts 1973 to 2001. Section 4 of the Unfair Dismissals Act 1977 should not be used, as it appears in this case, to circumvent the above.
Determination
The Tribunal, having given due consideration to the matter including oral and written submissions from both parties determines as follows:
Section 6 of the first schedule of the Minimum Notice and Terms of Employment Acts 1973 to 2001 allows the Tribunal to determine immediacy and it relies on Martin Howard v Breton Ltd Employment Appeals Tribunal Determination UD486/84 whereby “immediate” is not necessarily taken literally.
The fact that the claimant got his P45 is not determinative; See Allison v Incorporated Law Society and Laurence Cullen UD 492/1986“that the issuing of tax forms, i.e P45, forms between periods of continuous employment will not be conclusive evidence of a break in continuity”.
The fact that the claimant was re-employed three weeks and three days after dismissal, the Tribunal determines that the claimant was not let go at all under s.4 of the Unfair Dismissals Acts 1977 to 2001. The Tribunal determines that because the claimant was re-employed three weeks and three days after the termination of his employment, that his service is continuous because the reemployment was immediate. In considering the points raised the Tribunal is *312 mindful of s.3(b)(iv) of the Unfair Dismissals (Amendment) Act 1993 which states that:
“in the opinion of the Rights Commissioner, the Tribunal or the Circuit Court, as the case may be, the entry by the employer into the subsequent contract was wholly or partly for or was connected with the purpose of the avoidance of liability under this Act—
then
(1) this Act shall, subject to the other provisions thereof, apply to the dismissal, and
(2) the term of the prior contract and of any antecedent contracts shall be added to that of the subsequent contract for the purpose of the ascertainment under this Act of the period of service of the employee with the employer and the period so ascertained shall be determined for those purposes to be one of continuous service.”
The Tribunal considers that the treatment of the claimant by the company, taking into account all the circumstances of the case, amounts to an avoidance of liability.
Circumstances where an employee who is dismissed and re-employed within “the month”, cannot be disadvantaged by s.4 of the Unfair Dismissals Acts 1977 to 2001, and by offering further employment to the claimant within a month, the Tribunal finds that the respondent cannot avail of the protection offered to it by s.4 of the Unfair Dismissals Acts 1977 to 2001.
The Tribunal finds in favour of the claimant and the matter will proceed to a full hearing.
On the second day of hearing the Tribunal, having found on the first day that the claimant had been dismissed, heard evidence of loss. An attempt by the claimant to add a claim under the Organisation of Working Time Act 1997 to the case was rejected on the grounds that such claim was out of time according to s.27(4) and (5) of that Act. The Tribunal found that the case for differential loss was not proven and chose not to exercise its discretion in favour of the claimant on the loss of statutory protection. The Tribunal awards €3,030 under the Unfair Dismissals Acts 1977 to 2001 and €606 being one week’s pay, under the Minimum Notice and Terms of Employment Acts 1973 to 2001.
Division of the Tribunal: Ms Daly (Chairman), Mr Prole, Mr Brezina
Representation
For the claimant:Mr Gregory Nolan of Malcomson Law on day one of the hearing and Ms Cynthia Ni Mhurchu BL instructed by Malcolmson Law on day two
For the respondent:Mr Jim Ryan, IBEC
UPC Communications Ireland Ltd (now Virgin Media Ireland Ltd) -v- Employment Appeals Tribunal
[2017] IEHC 567
THE HIGH COURT
JUDGMENT of Mr. Justice McDermott delivered on the 5th day of October, 2017
1. The applicant, UPC Communications Limited (UPC) seeks a declaration that the respondent erred in law in holding that it had jurisdiction to hear and determine an unfair dismissal claim by the notice party, Ann Marie Ryan, because it was instituted outside the time limit prescribed by the Unfair Dismissals Acts 1977 to 2007. The applicant also seeks an order of certiorari quashing the respondent’s determination dated 18th February, 2015, that it had jurisdiction to hear and determine the said claim notwithstanding the fact that it was not initiated until 7th January, 2013, in excess of twelve months following the date of dismissal being 18th October, 2011.
2. In the alternative, an order is sought quashing the determination on the grounds that the Tribunal purported to reach conclusions of fact without hearing any testimony and having refused to hear evidence despite being requested to do so by the applicant. A further order was sought restraining the respondent from continuing to hear the Notice Party’s claim.
Background
3. The applicant employed the notice party from 27th February, 2008 until her dismissal by letter dated 18th October, 2011, on grounds of serious misconduct following an investigation. The letter of dismissal stated that the conduct complained of justified summary termination with effect from that date, but that the applicant would pay the notice party one month’s salary in lieu of notice.
4. By letter dated 20th October, 2011, the solicitors for the notice party wrote to the applicant stating their intention to appeal the dismissal decision and requesting information pursuant to the Data Protection Act. However, it is claimed that this letter was never received by the applicant. The applicant alleges that no communication took place between Ms. Ryan, her solicitors and the applicant until 23rd January, 2012. In the meantime, the sum due in respect of the one month’s salary and a P45 was sent to Ms. Ryan under cover of a letter dated 14th November, 2011.
5. On 23rd January, 2012, the notice party’s solicitor wrote to the applicant again requesting information stating that if it were not furnished within seven days it would refer the matter to the Data Protection Commissioner. A date for the intended appeal against the dismissal decision was also requested.
6. The facts concerning the non-receipt of the letter of 20th October, 2011, were never addressed, it was claimed, because of the Tribunal’s alleged failure to hear oral evidence on the matter. It is denied by Ms. Ryan that the Tribunal was ever requested by the applicant to hear oral evidence.
7. An internal appeal hearing took place on 6th September, 2012, and the decision to dismiss Ms. Ryan was upheld. This was confirmed to her in a letter dated 12th September.
8. The applicant maintains that at no time did it ever represent to the notice party or her solicitors that the decision to dismiss her would not take effect pending the internal appeal, nor did the notice party contend that the dismissal was ineffective until the claim was initiated under the Unfair Dismissal Acts, in a Workplace Relations Complaint Form on or about 7th January, 2013, in which a dismissal date of 18th September, 2012, was relied upon .
9. At the time Ms. Ryan submitted her claim to the Employment Appeals Tribunal (hereinafter EAT) on 7th January, 2013 it was clear that the claim had been initiated outside the mandatory six month period prescribed by s.8(2) of the Unfair Dismissals Act 1977 (as amended), and the maximum period of twelve months if the date of dismissal is taken to be 18th October, 2011 but not if the date of dismissal was taken to be 18th September 2012. The period of twelve months would only apply upon proof of exceptional circumstances that would have prevented Ms. Ryan from taking her claim within six months, pursuant to s.8(2)(b) of the Act. In any event, the Notice Party did not seek to rely upon the twelve month period but on the submission that the claim was made within six months of notification of the internal appeal decision.
10. The matter came before the respondent sitting in Limerick on 24th September, 2014. The applicant raised a preliminary issue by way of written submission challenging the respondent’s jurisdiction to entertain the claim in advance of the hearing date. These submissions were furnished to the Tribunal Members in the course of oral submissions on the day of the hearing. Ms. Ryan’s legal representatives made oral submissions but were requested then to provide written legal submissions.
11. These were furnished to the applicant on 6th November, 2014. The applicant then wrote to the respondent on 21st November, expressing the view that its position had been clearly set out in its written and oral submissions and that the notice party’s submissions were inaccurate and irrelevant. It did not request that the respondent relist the matter to hear oral testimony.
12. The respondent issued its determination on the preliminary matter on 10th February, 2015. It held that the dismissal did not take effect until the appeal process had concluded and that the claim was initiated within the six-month time limit.
13. The applicant was granted leave to apply for judicial review (Noonan J.) on 23rd March, 2015.
Determination of the Employment Appeals Tribunal on the Preliminary Issue
14. At the Tribunal hearing UPC relied upon the fact that Form T1A which indicated that the notice party’s claim for unfair dismissal had been received on 7th January, 2013. This was outside the period of twelve months from the date of the termination of the claimant’s employment, the 18th October 2011. It was therefore claimed that the EAT had no jurisdiction to receive or determine the notice party’s claim.
15. The notice party claimed that the internal appeal acted as a stay on dismissal. It was submitted on her behalf that s.1 of the Unfair Dismissals Act 1977, defines dismissal and that it was within the respondent’s jurisdiction to determine the relevant date of dismissal in any particular case in accordance with the statute.
16. In its determination of 10th February, 2015, the Tribunal held that under the Unfair Dismissals Acts 1977 – 2007, the Notice Party/claimant was entitled to proceed with her claim. It ruled that the applicant should have dealt with the initial hearing of the appeal expeditiously, that the delay was largely the applicant’s fault and contrary to the claimant’s entitlement to natural, speedy and effective justice. It also found that the terms of employment led to a lack of clarity on the implications and effectiveness of the initial dismissal. The Tribunal accepted the claimant’s submission that her dismissal was stayed pending the outcome of the internal appeal. The Tribunal also held that the claimant had lodged her appeal with the EAT within time and directed that the case proceed on the substantive issues. It ruled as follows:
“Having carefully considered this issue and the submissions made , the Tribunal finds that under the Unfair Dismissal Acts 1977 to 2007, that the Claimant is entitled to proceed with her claim and is not precluded from prosecuting same on the basis of the following:
1. The respondent should have dealt with the initial hearing of dismissal and the appeal arising from same and the issuing of the decisions in relation to same expeditiously, which was not the case here, and more especially in relation to the hearing of the Appeal. In consequence the Tribunal finds that the delays which arose in the conduct and completion of such processes by and large lay at the feet of the respondent and were contrary to the Claimant’s entitlement to natural speedy and effective justice.2. The Terms of Employment were silent on the implications and effectiveness of the dismissal once issued and that when an appeal was lodged this did not act as a stay on such dismissal, then in that event, the Tribunal believes this led to lack of clarity and in consequence created ambiguity which resulted in the Claimant believing that her dismissal was stayed pending the outcome of the appeal. The Tribunal support her view.
The Tribunal finds that the Claimant has lodged her claim with the…Tribunal in time and directs the case proceed on the substantive issues.”
The Applicant’s Submissions
17. It is submitted on behalf of the applicant that the determination of the Tribunal was made following an oral hearing during which the Tribunal heard legal submissions only. The Tribunal failed to address the specific submissions made on behalf of the applicant. It purported to make findings of fact against the applicant without hearing evidence when there was a conflict of fact which had to be determined and upon which its ruling depended. It did so notwithstanding a request to hear such evidence by the applicant. The Tribunal purported to decide an issue of law without any proper consideration of the facts and without any apparent consideration of relevant case law.
18. It was submitted that pursuant to the definition of “dismissal” under s.1 of the Act, and the definition of “date of dismissal”, the date of dismissal must be considered to be the date when the period of notice required to bring the contract to an end expires or, where no notice is given, the date when that notice ought to have expired.
19. The applicant claims that the question as to whether a claim is made within time together with the issue of whether an employee has a relevant period of service before submitting a claim for dismissal are all matters which constitute “conditions precedent to jurisdiction” and are universally accepted as such. It was submitted that a claim must be submitted within six months of dismissal before jurisdiction may be accepted by the Tribunal (IBM Ireland Limited v. Employment Appeals Tribunal (O’Briain) [1984] ILRM 31).
20. The applicant also claims that the Tribunal’s jurisdiction is not comparable to the circumstances considered by the Supreme Court in Clarke v. O’Gorman [2014] IESC 72. It was submitted that the Tribunal has no original jurisdiction and is a creature of statute and accordingly could only act within the confines of the jurisdiction conferred upon it. In this regard, the Unfair Dismissals Act 1977 was amended in 1993, whereby under s.8(2)(b), the Tribunal was vested with a power to extend the time within which to bring a claim of unfair dismissal from six to twelve months in “exceptional circumstances”.
21. The applicant also submitted that there was no authority for the proposition that the date of dismissal is the date upon which notice party’s appeal failed. It was submitted that relying upon the relevant jurisprudence and undisputed facts confirming the date of dismissal, namely the 18th October, 2011, there was no basis upon which the Tribunal could have reached its conclusion. It was submitted that the dismissal was effective immediately and that a P45 issued under cover of letter dated 14th November, 2011, confirmed the date of dismissal as 18th October, 2011. The applicant therefore submits that the notice party should have submitted a claim within six months of 18th October , 2011, or alternatively, she would have to demonstrate “exceptional circumstances” as provided under section 8(2)(b) which was never relied upon.
The Notice Party’s Submissions
22. The notice party submits, inter alia, that the relevant dismissal date is 18th September, 2012, and that it was reasonable for the notice party to presume that this was so. The respondent had discretion in each case to determine on its facts the date upon which the relevant dismissal occurred.
23. The notice party furnished the applicant with detailed written submissions in the course of the Tribunal hearing. The applicant chose not to respond to them expressing the view that they were inaccurate and irrelevant in a letter of 21st November, 2014. It is submitted, therefore, that the applicant had an adequate opportunity to make representations to the Tribunal and to reply to the notice party’s written submissions and if necessary, to adduce such evidence as it wished in relation to these matters. The notice party also submits that the statement of grounds fails to identify the precise basis upon which there is said to be a conflict of fact relevant to the preliminary issue to be determined by the Tribunal.
24. The notice party also submits that the Tribunal had sufficient material to reach its conclusion. The respondent was furnished with comprehensive legal submissions. There was no breach of the applicant’s right to an oral hearing which may be limited according to the circumstances of the case (Potts v. Minister for Defence [2005] 2 ILRM 517 and Mooney v. An Post [1998] 4 I.R. 288).
The Time Limit
25. Section 7 of the Unfair Dismissals (Amendment) Act 1993, amending s.8 of the principal Act, provides:-
“(1) A claim by an employee against an employer for redress under this Act for unfair dismissal may be brought by the employee before a rights commissioner or the Tribunal and the commissioner or Tribunal shall hear the parties and any evidence relevant to the claim tendered by them and, in the case of a rights commissioner, shall make a recommendation in relation to the claim, and, in the case of the Tribunal, shall make a determination in relation to the claim.
…
(2) A claim for redress under this Act shall be initiated by giving a notice in writing (containing such particulars (if any) as may be specified in regulations under section 17 of this Act made for the purposes of subsection (8) of this section) to a rights commissioner or the Tribunal, as the case may be-
(a) within the period of six months beginning on the date of the relevant dismissal, or
(b) if the rights commission or the Tribunal, as the case may be, is satisfied that exceptional circumstances prevented the giving of the notice within the period aforesaid, then, within such period not exceeding twelve months from the date aforesaid as the rights commissioner or the Tribunal, as the case may be considers reasonable,
and a copy of the notice shall be given by the rights commissioner or the Tribunal as the case may be, to the employer concerned as soon as may be after the receipt of the notice by rights commissioner or the Tribunal.”
26. Section 1 of the principal Act as amended provides that “date of dismissal” means:
(a) where prior notice of the termination of the contract is given and it complies with the provisions of that contract and of the Minimum Notice and Terms of Employment [Acts 1973 to 1991], the date on which that notice expires,
(b) where either prior notice of such termination is not given or the notice does not comply with the provisions of the contract of employment or the Minimum Notice and Terms of Employment [Acts]…the date upon which such a notice would have expired if it had been given on the date of such termination and had been expressed to expire on the later of the following dates-
(i) the earliest date that would be in compliance with the provisions of the contract of employment,
(ii) the earliest date that would be in compliance with the provisions of the Minimum Notice and Terms of Employments [Acts]…”
27. The Act defines “dismissal” in so far as it is relevant to this case as
“(a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee…”
Time Limit and Jurisdiction
28. A number of earlier High Court decisions were relied upon by the applicant in support of the proposition that the failure to initiate a claim for redress within the six month period provided for under s.8(2) deprived the Tribunal of jurisdiction to hear the claim. It was submitted that the requirements of the section were distinguishable from the time limits applicable under the Statutes of Limitation in the initiation of civil proceedings before a court of competent jurisdiction. If the defendant wished to raise the issue that civil proceedings had been initiated outside the limitation period that was clearly a matter of defence and did not go to the jurisdiction of the court to hear the case. It was submitted that the Tribunal had no jurisdiction in respect of any claim which was not initiated within the time provided under the section: since its jurisdiction derived from statute the Tribunal should have ruled that it had no jurisdiction in the case which was clearly initiated outside the six month period.
29. In IBM Limited v. Feeney [1983] ILRM 50, an appeal to the Circuit Court from the Employment Appeals Tribunal, the respondent brought a claim for compensation against his former employer, the appellant. Counsel for the employer sought a ruling from the EAT that the claim was “time barred” because it was not sent to the employer within six months of his dismissal though it had been sent to the Tribunal within that period. The Tribunal ruled that the word “shall” in the subparagraph relating to the service of the notice of claim on the Tribunal was mandatory but when used in relation to the service of a copy of the notice on the employer was regulatory in nature. The Circuit Court (His Honour Judge Ryan) held that the service clause in respect of the employer was also mandatory. In a short discussion of the matter, the learned judge noted that a claim must be served upon the Tribunal within six months of the date of the relevant dismissal if it is to be validly initiated. The requirement to give notice to the employer was a mandatory requirement (later altered by statute) which obliged the employee to serve the necessary notice on the employer within the same six month period. The learned judge did not specifically address the issue of jurisdiction in the course of his short judgment. As is clear from his reliance upon the decision in Howard v. Boddington (1877) 2 P.D. 203, the issue raised concerned the statutory construction of section 8(1) and (2).
30. In The State (IBM) v. EAT & O’Briain [1984] ILRM 31, the notice party, Mr. O’Briain, gave the EAT a notice in writing of his claim within the six month period of dismissal. The Tribunal then furnished the employer (the prosecutor) with a copy of the notice within the required period. It was submitted to the Tribunal that it had no jurisdiction to hear and determine the claim made under the Act because the failure by the employee to give the requisite notice in writing to the employer deprived the Tribunal of jurisdiction. The Tribunal held that it had jurisdiction to hear the claim. An order of certiorari was sought quashing this decision. The issue considered was whether s. 8(2) of the 1977 Act, as amended, required that a copy notice must be served by the employee or his agent on the employer or whether the requirement of s. 8(2) was fulfilled once the employer was given a copy by any person such as the Tribunal.
31. Hamilton J. (as he then was) held that the Tribunal had jurisdiction to determine the claim and it did not matter who served the employer with a copy of the notice, whether the client or the Tribunal. The learned judge summarised the question for consideration as follows at p. 33:-
“The basic question for determination is whether, in view of the failure by the second named respondent to give to the prosecutor a copy of the notice in writing initiating his claim within six months of the date of his dismissal, the first named respondent has jurisdiction to hear and determine his claim.
The rights conferred by the Unfair Dismissals Act 1977 are statutory rights; the powers conferred on the first named respondent are statutory powers and in connection with their exercise the statutory requirement of the Act must be complied with.”
32. Having considered the judgment in the Feeney case, the learned judge stated at p. 34:-
“Before either the rights commissioner or the tribunal can deal with a claim for redress, a notice in writing of the claim must be given to them within six months of the date of the relevant dismissal and a copy of the notice must be given to the employer concerned within the same period viz, six months of the date of the relevant dismissal.
It is of course the responsibility of the dismissed employee to ensure that these statutory requirements are complied with because if they are not, the rights commissioner or the tribunal has no jurisdiction to hear and determine his claim.”
33. This judgment was considered and applied by Ó Caoimh J. in Bank of Scotland (Ireland) v. Employment Appeals Tribunal & Prisca Grady [2002] IEHC 119, (Unreported, High Court, Ó Caoimh J., 15th July, 2002). Ó Caoimh J. held that the Tribunal did not have jurisdiction to determine a claim unless it was brought within the period prescribed by statute namely the period of six months provided under s. 8(2)(a) of the Unfair Dismissals Act 1977 (as amended) or within a period of twelve months under s.8(2)(b) provided the Tribunal was satisfied that exceptional circumstances prevented the giving of the notice within six months. The court was satisfied that unless the Tribunal determined that the claim was made within the statutory period it did not have jurisdiction to determine it.
34. In reaching that conclusion, the learned judge noted that the case was not one in which there was a conflict of evidence. The essential factual matrix was not in issue. On the undisputed facts in the case, the Tribunal did not have jurisdiction to proceed to hear the case. It was a condition precedent to the continuation of the proceedings before the Tribunal that the claim be initiated within the six month period thereby vesting jurisdiction in the Tribunal. The learned judge also rejected the submission that he should refuse relief on the basis that the error was one made within jurisdiction and that the appropriate remedy for the applicant was by way of appeal. Reliance had been placed upon the decision of Barron J. in Nova Colour Graphic Supplies Limited v. Employment Appeals Tribunal [1987] I.R. 426, in which the issue was whether the claimant had the requisite continuity of service to ground a claim under the Act. In the course of his judgment, Barron J. stated at p. 429:-
“Whether there has been a continuity of service bringing the second respondent within the provisions of the Unfair Dismissals Act, 1977, is a question of fact which the Tribunal has jurisdiction to determine and this it has exercised. If it is wrong in its determination, then this can be remedied by appeal, which is clearly the appropriate manner in which its decision should be challenged. An appeal lies under s. 10, sub-s. 4 from any determination of the Tribunal in relation to a claim for redress under this Act. So, even if it had been that there was no basis in fact for the decision of the Tribunal on the evidence before it, nevertheless an appeal would lie, in the course of which the appellant would not be limited to such evidence. In these circumstances, no useful purpose would be served in any event by granting discretionary relief since ultimately the matter could always be heard afresh on appeal.”
35. Reliance had also been placed upon Memorex World Trade Corporation v. Employment Appeals Tribunal [1990] 2 I.R. 184; Harte v. Labour Court [1996] 2 I.R. 171; Rajah v. Royal College of Surgeons [1994] 1 I.R. 384; and The State (Davidson) v. Farrell [1960] I.R. 438. However, O’Caoimh J. was satisfied that since there was no conflict of evidence the only issue was whether on the established facts the respondent had jurisdiction to determine the claim. The authorities cited did not provide a sufficient reason in that case to refuse relief when the facts relating to the issue were undisputed.
36. In Clarke v. O’Gorman [2014] IESC 72, the Supreme Court considered whether the failure by a plaintiff seeking damages for personal injuries to make an initial application to PIAB deprived the High Court of jurisdiction to hear the claim. O’Donnell J. (delivering the judgment of the court) held that a failure to follow the PIAB process did not necessarily deprive the High Court of jurisdiction to hear the case but, if properly raised, might amount to a defence to a claim for damages for personal injuries. The learned judge stated:-
“37 In my view, s.12 does not operate as a jurisdictional provision. The very concept of jurisdiction is sometimes a broad one, but in this case, I think the word is used in its narrowest and purest sense. The defendant can only succeed here, given the manner in which the application was made and its timing, if the Act deprives the court of jurisdiction to hear and determine the claim. Section 12 is certainly significant. It imposes a legal prohibition. But it is significant that the prohibition is not directed towards the court, but rather towards the parties, and in particular the plaintiff. The operative part of the section provides that ‘no proceedings may be brought’ in respect of any such claim without an authorisation. Manifestly it is the plaintiff who brings proceedings to whom this prohibition is directed. If the section said, as it could have, that unless and until an application was made to the Board and an authorisation granted, a plaintiff or intending plaintiff could not bring proceedings in respect of any claim, the meaning of the section would, in my view, be identical, but it would be more difficult to contend that the impact of the section deprived the court of jurisdiction, rather than imposing a restriction on the right of a plaintiff to bring a claim.”
37. At para. 38, he states:-
“…The significance of this statutory language is considerable. It is well established that the provisions of the Statute of Limitations, framed in this way for over a century, operate to bar the remedy and not to extinguish the right. Thus, as set out in Brady and Kerr, The Limitation of Actions (Dublin; Incorporated Law Society of Ireland; 2nd Edition; 1994) it is well established that the Limitations Acts in most cases go only to the conduct of the suit leaving the claimants rights otherwise untouched. The authors continue at pages 4 and 5:
‘In this sense the Statutes are procedural. If, however, at the expiration of a period prescribed for any person to bring an action to recover land, the title of that person to the land is extinguished such a limitation goes to the cause of action itself and is thus substantive…
The Statutes must be specifically pleaded. In other words, a defence under the Statutes must be raised or waived by the defendant as a matter of choice. It is only with jurisdictional provisions that the court will formally raise the matter of time on its own motion. Since it is for the defendant to plead the statute, if he wishes to avail himself of it, it would appear to follow that it is the defendant who has the burden of proving that the plaintiff’s claim is statute barred.”
38. He continued at para. 41:-
“…It is not necessary to resolve the question whether even if this were a jurisdictional provision it would fall into this category, and even if it did not, whether that is a matter required to be raised by the pleadings under Order 19, Rule 15. It is sufficient to observe that it is not a provision which seeks to control the right to recover damages for a personal injury itself but rather controls part of the manner in which a claim may be brought and compensation received.”
39. At para. 42 he states:-
“…Accordingly, I am not persuaded that to interpret the Act as creating a matter of defence rather than jurisdiction would undermine the efficacy of the Act.”
40. In these proceedings, relying by analogy on the Clarke decision and other judicial review authorities the notice party submits that this application is misconceived. The issue as to whether the claim for unfair dismissal is made within time is a matter which can be raised by way of defence before the Tribunal. It is a matter for the Tribunal to determine whether the claim has been made within time or whether it should, if requested, on the basis that there are “exceptional circumstances” as to why the claim was not brought within time, extend the time for the bringing of the claim. The latter provision does not arise in this case because no such application was made. It is clear from s.8(2) that a claim is initiated by a claimant or on his or her behalf by giving notice in writing of a claim for redress in the form prescribed in the Regulations “within the period of six months beginning on the date of the relevant dismissal” or “within such period not exceeding twelve months from the date (of the relevant dismissal) as the Tribunal may consider reasonable”. It is also clear that the initiative for the bringing of the claim for redress lies upon the claimant. The Tribunal may receive the form containing the claim for redress and hear any relevant application thereafter in relation to any issue arising thereunder including the issue as to whether it was brought within time. A statutory right has been vested in the claimant to claim redress for unfair dismissal.
41. The court is not satisfied that s. 8(2)(a) or (b) is a provision which seeks to control the right to claim redress. It sets a time limit within which the claim must be initiated. The Tribunal is not specifically prohibited from dealing with a claim in respect of which notice in writing has not been given to the Tribunal within the period of six months. The court notes that unlike s.3 of the Principal Act which prohibits a rights commissioner from hearing a case in certain circumstances and s.41(6) of the Workplace Relations Act, 2015 which provides that an adjudication officer “shall not entertain a complaint…if it has been presented after the expiration of the period of six months..”, s.8 is not specifically directed towards the decision-maker (see para. 37 of the judgment of O’Donnell J. quoted above). However, the claim for redress must fail if it was not initiated by the claimant within time. It is a matter for the Tribunal to consider whether the claim for redress has been made within the appropriate period by exercising its statutory jurisdiction so to do. If the undisputed facts of and legal principles applicable to the case clearly and unambiguously establish that the claim was out of time but the Tribunal nevertheless proceeds to hear and determine the claim the earlier High Court authorities cited above indicate that such an error may constitute an error of jurisdiction which is challengeable by way of judicial review. If, on the other hand the issue is not clear-cut by reason of the existence of a real issue of fact and/or law which the tribunal is obliged to address, the resulting determination is in my view not one that is or ought normally to be the subject of judicial review proceedings but should be considered and determined by the Tribunal and is then subject to the normal appeal regime under the statutory scheme prescribed for that purpose. The court is satisfied that in those circumstances “the default position is that a party should pursue a statutory appeal rather than initiate judicial review proceedings”(EMI Records (Ireland) Ltd v Data Protection Commissioner [2013] 2 I.R. 669).
The Tribunal Hearing
42. In the course of submissions to the Tribunal, the claimant set out a number of facts which were said to be agreed. The following facts were said not to be in dispute:-
“(a) the claimant commenced employment on 27th February, 2008;
(b) by letter dated 18th March, 2011, the claimant was informed that she was going to be the subject of an investigation in accordance with the respondent’s disciplinary procedures concerning an alleged breach of the respondent’s e-mail usage policy and its code of conduct;
(c) the claimant was suspended from her employment pending the outcome of the investigation;
(d) the respondent’s investigation into the claimant did not conclude until 11th May, 2011;
(e) the claimant was one of a number of employees who were subjected to a disciplinary proceeding arising out of a series of allegations concerning e-mail usage;
(f) on 20th May, 2011, a disciplinary hearing took place concerning the claimant;
(g) by letter dated 18th October, 2011, some seven months after investigation commenced, the claimant was notified of the respondent’s decision to dismiss her;
(h) the said letter referred to the claimant’s right of appeal from the respondent’s decision to dismiss her;
(i) the claimant exercised her right of appeal and…both parties engaged in an appeals process;
(j) as stated, there is disagreement between the parties in relation to the period from 20th October [until] 23rd January, 2012;
(k) both parties agree that by letter dated 10th February, 2012, the respondent acknowledged the claimant’s solicitor’s letter dated 23rd January, 2012, seeking details about the appeals hearing;
(l) the respondent failed to confirm that the appeals process would be going ahead until its letter to this effect, dated 10th April, 2012;
(m) the said confirmation occurred some five months and 22 days after the decision to dismiss the complainant;
(n) following data access requests and a series of other delays, an appeal hearing was eventually held on 6th September, 2012;
(o) the claimant maintains that the appeals hearing was in effect a de novo hearing but this is denied by the respondent;
(p) by letter dated 18th September, 2012, the respondent notified the claimant of the outcome of her appeal; and
(q) on or around 7th January, 2013, the claimant lodged an unfair dismissal complaint pursuant to the UDA.”
43. The submission noted that in cases of a serious offence or gross misconduct, the respondent’s disciplinary and grievance procedures provided that the investigative process would take three days during which the employee would be suspended with pay for that period or any further period required for the purpose of the investigation. At each stage of the disciplinary process, the employee was vested with a right of appeal against the decision of the company. The Human Resource’s director should be notified within five working days of the notification of any disciplinary action taken against the employee if an appeal is sought. The appeal is heard by a member of the Human Resources Department and a manager/director not involved in the disciplinary process which led to the initial disciplinary action. It is clear that the appeal procedure does not specifically address the status of the employee when appealing a dismissal decision.
44. The claimant submitted that the “relevant dismissal” for the purpose of calculating the appropriate time limit under s.8(2)(a) ran from the date of the appellate decision upholding the dismissal made on 18th October, 2011. It was claimed that failure to so regard the appellate decision as the relevant dismissal for the purposes of the Act would result in a forfeiture by the employee of a right to take an unfair dismissal claim if the appeal procedure did not conclude within six months of the initial decision to dismiss. If the claimant made an application for unfair dismissal and it was listed for hearing before the conclusion of an appeal process, she would be dependent upon a successful application for an adjournment in order to safeguard her entitlement to pursue her claim. To ensure access to the remedy under the Act, it was claimed that she would be obliged to forgo her contractual right to appeal. In addition it would be open to an employer to challenge the Tribunal’s jurisdiction by arguing that the claim was premature where the appeal process had not yet concluded. It was submitted that if the respondent’s interpretation of the time limit applicable was correct, the claimant had forgone her right under the Act by 17th April, 2012, notwithstanding the fact that the appeal hearing did not take place until 6th September, 2012. The Tribunal was invited to consider the consequences of the respective interpretations of the time limit under s. 8(2) for the claimant. It was invited to consider the intention of the legislature in framing the statutory remedy and the importance of fairness of procedures which was of central in the statutory framework for redress. It was submitted that the consequences for the claimant of adhering to the employer’s submissions on the time limit applicable under s.8(2) was contrary to the purpose of the legislature and had the effect of depriving her of the benefit of both her statutory and contractual rights.
45. For its part, the employer submitted to the Tribunal that the provisions of the disciplinary code did not provide that the sanction of dismissal would not take effect pending the outcome of the appeal process and that in the absence of any such contractual term the dismissal must be taken as effective from the time the decision was taken. Hogan J. in Wallace v. Irish Aviation Authority [2012] IEHC 178, granted an interlocutory injunction restraining an employer for continuing a suspension which had been imposed pending her appeal against a recommendation of dismissal. However, this arose in circumstances where the disciplinary procedure stated in writing that a disciplinary sanction would not take effect pending the outcome of the appeal process. There was no such statement or assurance provided to employees contained in the disciplinary code in suit. The policy document was silent as to the consequences for the employee pending the determination of an internal appeal and in particular as to whether the dismissal took effect from the date of the initial decision.
46. The respondent relied upon three English authorities. In J. Sainsbury Limited v. Savage [1981] ICR 1, the English Court of Appeal held that a contract of employment terminates on the date of the original decision to dismiss. The court held that the contract could be “saved” if the appeal were successful. In that case, the procedure governing an internal appeal stated that pending the decision on that appeal the employee would be suspended without pay and if reinstated would receive full back pay for the period of suspension. The employee was dismissed but appealed against the decision. He applied to an Industrial Tribunal for compensation for unfair dismissal following notification that the appeal had been dismissed. The company took the preliminary point that the Industrial Tribunal had no jurisdiction to hear the claim because the applicant had not been continuously employed for a period of not less than 26 weeks ending with the effective date of termination provided for under the Trade Union and Labour Relations Act 1974 (United Kingdom). The employee contended that he remained an employee of the company until notified that his internal appeal had been unsuccessful and consequently had been in continuous employment for the requisite period. The Tribunal held the applicant was correct in this regard and entitled to proceed with his application. The Employment Appeals Tribunal allowed an appeal by the company. The employee’s appeal was dismissed by the Court of Appeal which held that following the applicant’s dismissal the provisions of his contract relating to the internal appeal procedure continued to apply so that he was to be treated as being suspended without pay pending the determination of the appeal. It was held that on dismissal of that appeal the applicant was then to be regarded as having being deprived of the right to both work and remuneration from the date he was dismissed from employment and, therefore, the date from which time began to run was the effective date of termination of the contract of employment i.e. the date of the dismissal prior to appeal. Brightman L.J. delivering the lead judgment of the court (Sir David Cairns and Roskill L.J. concurring) adopted the reasoning of the Employment Appeals Tribunal [1979] ICR 96 102 which stated:-
“In our view, when a notice of immediate dismissal is given, the dismissal takes immediate effect. The provisions of this contract as to the appeal procedure continue to apply. If an appeal is entered then the dismissed employee is to be treated as being ‘suspended’ without pay during the determination of his appeal in the sense that if the appeal is successful then he is reinstated and he will receive full back pay for the period of the suspension. If the appeal is not successful and it is decided that the original decision of instant dismissal was right and is affirmed, then the dismissal takes effect on the original date. In our view, that is the date on which the termination takes effect for the purposes of the Act.”
47. Brightman L.J. stated that the effective date of termination in the case of instant dismissal was the date upon which the termination of the contract takes effect. He noted that all submissions pointed to the proposition that the suspension of the contract of employment involved the continuation of the relationship of master and servant until the period of suspension had come to an end. Many of the arguments advanced in the course of that appeal reflect arguments advanced on behalf of the claimant before the Tribunal in this case. Brightman L.J. stated at p. 7:-
“It seems to me clear, that to take an example, if an employee is dismissed on January 1, on the terms that he then ceases to have the right to work under the contract of employment, and that the employer ceases likewise to be under an obligation to pay the employee, the contract of employment is at an end. That must be the position in the present case unless paragraph 4.5 can be read as saving the contract of employment in all the circumstances pending conclusion of the appeal. In my view, the contract of employment is saved if the appeal succeeds, because the employee is reinstated with full back pay. But if the appeal fails, then the inevitable result is that the employee is not only to be deprived of his right to work as from January 1, but also of his right to remuneration from that date. If he has had no right to work after January 1 and no right to be paid after January 1, the contract of employment must have been determined as from January 1.”
48. The House of Lords considered and applied the reasoning in the Sainsbury case in West Midlands Cooperative Society Limited v. Tipton [1986] ICR 192.
49. In Roberts v. West Coast Trains Limited [2004] EWCA Civ 900, the English Court of Appeal considered the case of a chef who was dismissed for alleged gross misconduct. Under the contractual disciplinary code, he appealed against the dismissal internally. He also initiated proceedings in the Employment Tribunal claiming unfair dismissal before the determination of the internal appeal. The internal appeal was successful in that the penalty of dismissal was reduced to demotion and the period between his dismissal and demotion was treated as a period of suspension without pay. The employee never returned to work and was treated as a person who had resigned from his employment. However, he continued to pursue his claim for unfair dismissal on the basis that his employment had been terminated by his initial dismissal which he had successfully appealed. He submitted that the effect of the decision on appeal was to offer him a new contract which he had chosen not to accept. An Employment Tribunal determined as a preliminary issue that he had not been dismissed and it therefore had no jurisdiction to consider his claim. The Employment Appeals Tribunal dismissed the employee’s appeal against this finding holding that the decision to demote him did not involve the termination of his original contract or the entry into a new contract. The Tribunal determined that the decision on the internal appeal was not a matter of creating a new contract for a position but of giving effect to a decision to apply a different sanction specified in the existing contract than had been applied at first instance. The EAT rejected the submission that the jurisdiction of the Tribunal to hear the claim of unfair dismissal was established at the moment the application was presented and that nothing done by the internal appeal body altered that position at that date. It concluded that the decision of the appeal body to demote him had retrospective effect so that the employee was to be treated as if he had never been dismissed. The Court of Appeal, upheld this decision and determined that the applicant had not been dismissed by his employers so as to entitle him to pursue a complaint of unfair dismissal where within the terms of a contractual disciplinary procedure the initial sanction of dismissal had been reduced on internal appeal notwithstanding that he brought unfair dismissal proceedings before his appeal was allowed. The court considered the effect of the decision on the appeal and the nature and effect of the earlier dismissal. It held that where a contractual disciplinary procedure permits the employers on appeal to impose a sanction of demotion in place of an earlier decision to dismiss, that demotion does not involve the termination of the existing contract of employment or the entering into of a new contract. The effect of the decision on the appeal was to revive retrospectively the contract of employment terminated by the earlier decision to dismiss so as to treat the employee as if he had never been dismissed. The court noted that the imposition of the sanction of demotion and a period of suspension without pay on appeal was provided for in the agreed disciplinary procedures. Lord Justice Mummery stated:-
“22. It was held by the Appeal Tribunal, correctly in my view, that the decision on the internal appeal was not a matter of creating a new contract for a new position: it was a question of giving effect to a decision to apply a different sanction on appeal than had been applied at first instance. The sanction applied on appeal was one specified in the existing contract. Within that existing contract it was possible to demote Mr Roberts without terminating his existing contract and without making an offer to enter into another contract re-engaging him into a different position.
…
27. The fact that he had made a complaint of unfair dismissal to the Tribunal at a date when he was still in a state of dismissal, and before the appeal had been heard, does not affect the legal position. It is legally irrelevant. It would have been relevant, if he had never instituted an appeal and/or if he had instituted an appeal, he had withdrawn his appeal before a decision was made. In such circumstances, the initial dismissal would have stood. I am unable to accept the submission made …that somehow the date of the issue of the proceedings freezes the position on jurisdiction, and that it is not permissible for the Employment Tribunal to look at the real world as it existed at the date when the case came on before them at the hearing.”
50. It is noteworthy that the decision in Feeney and the English cases relied upon by the applicant were determined within the statutory framework of unfair dismissal provided for in the respective jurisdictions and the appellate regime applicable. In particular, emphasis was placed in each of the English decisions on the fact that each case differs from another and the limitations that apply in relying upon one decision concerning the statutory framework in support of a case which arises in different circumstances. This highlights the importance of adherence to the statutory framework and extensive appellate jurisdiction when considering cases of this kind (See Mummery L.J. in Roberts at para. 28 and Roskill L.J. in Sainsbury pp. 111 – 112) .
51. In addition, the point raised by the applicant in respect of jurisdiction before the Tribunal was one which had not been specifically addressed in this jurisdiction. While the English authorities may be of considerable persuasive authority when read with the academic commentaries relied upon, it should not be assumed that English authorities will be regarded as automatically applicable in this jurisdiction. The Employment Appeals Tribunal and the courts in this jurisdiction are of course not bound to follow English judicial decisions. Indeed the point is made that the English statutory framework is different to that applicable in Ireland. In that regard considerable emphasis was placed by the notice party on the importance of the phrase “relevant dismissal” in s.8(2) as a point of difference between the two statutory schemes when determining the date from which time runs in the submissions made to the Tribunal. In my view, the point relied upon by the applicant that the initial dismissal is the one from which time must be deemed to run has yet to be determined in this jurisdiction and is not at this stage to be regarded as clear-cut and well-settled as to justify the quashing of the Tribunal’s decision. The issue falls to be determined definitively by the Employment Appeals Tribunal and, if appropriate, by the appellate courts in which the appropriate jurisdiction is vested by statute.
Fair procedures/grounds (vii), (viii), (xi), (xii) and (xiii)
52. The applicant relying upon these grounds challenges the Tribunal’s decision on the basis that though it was informed that the applicant wished to call evidence in respect of the preliminary issue and cross-examine the claimant in respect of aspects thereof, the Tribunal following the hearing of the 24th September, 2014 failed to afford an opportunity to the applicant to adduce oral evidence or to cross-examine witnesses who ought to have been tendered on behalf of the claimant. It is claimed that the Tribunal wrongly based its findings on conclusions of fact in respect of matters concerning which there was a conflict of evidence. These conclusions are said to be based on inaccurate and incorrect findings of fact in the absence of any relevant evidence. The statement of grounds does not identify any relevant conflict of fact relied upon. It is clear that following receipt of the claimant’s submissions which contained an outline of what were terms to be “agreed facts” and on which it was clearly submitted the Tribunal should rely, the applicant sent a rather terse response concerning the submissions and declined to make any further submissions. It is clear that at the conclusion of the hearing the Tribunal indicated that it required further submissions on the preliminary issue. These were furnished by the claimant on 6th November 2014. The applicant’s letter dated 21st November states that it refutes the submissions made by the complainant “which we believe are entirely inaccurate and vastly irrelevant”. The letter emphasises that the claim was made over twelve months out of time because it was lodged on 7th January, 2013 and the decision was made on 18th October, 2011. It points out that the complainant had also failed to acknowledge that she received her P45, payslip and notice payment from the employer under cover of a letter dated 14th November, 2011 as contained in the booklet of papers provided at the hearing. A cheque was cashed by the claimant within a couple of days of its receipt. The employer therefore claimed that the employee could not have believed that her employment continued after that date. The letter concluded:
“We believe our position has been clearly submitted in our written and oral submissions. If, however, there is a specific point the Tribunal wish us to specifically clarify or address we would gladly assist the Tribunal and provide whatever additional information is required.”
53. There was no further correspondence between the parties or with the Tribunal in respect of calling of any further evidence or convening a further hearing for that purpose nor was any dissatisfaction expressed on behalf of the applicant in that regard. It was the clear intention of the Tribunal to determine the matter on the basis of the submissions made and the material adduced during the course of the hearing on 24th September.
54. The original verifying affidavit in the application contains no reference to any specific conflict of fact thought to be relevant or important to the determination of the preliminary issue in respect of which oral evidence is said to be relevant.
55. A notice of opposition was delivered on 8th June, 2015. The notice party denied that the respondent refused to hear evidence despite being requested to do so by the applicant. The notice party stated that the applicant was aware that as of the date of the hearing following oral submissions on 24th September the respondent would not be hearing any evidence on disputed facts and that the preliminary issue be determined on the basis of the hearing and written submissions from the parties. The case was not re-listed for further hearing. Thus the notice party submits that the applicant had reasonable opportunity to make submissions of fact and law in the circumstances of the case. She also relies upon the fact that at no stage following the hearing was any application made for an opportunity to produce any evidence to the Tribunal by the applicant.
56. The first reference of a specific nature beyond the general complaint at grounds (vii) and (viii) in respect of this issue is contained in the supplemental affidavit of Peter McCarthy, solicitor sworn on the 6th July, 2015. At paras. 6 and 7 of the affidavit it is averred that Counsel on behalf of the applicant at the Tribunal hearing on 24th September made oral submissions. The Tribunal requested additional submissions on behalf of the claimant. Counsel for the applicant, it is claimed, then sought an opportunity to cross-examine Ms. Ryan’s solicitor and Ms. Ryan “as there were several material questions of fact that need to be addressed”. Only two such questions were raised in para. 7 these were:
(a) the question why if an application had been prepared in October 2012, it was not made to the Tribunal before January 2013;
(b) how it came to be that correspondence sent in October 2011 by the appellant solicitor had never actually been received by the applicant.
57. It is averred that the Tribunal did not then decline any opportunity to cross-examine but indicated that it would pause its deliberations, receive written submissions from the appellant and then review the position thereafter.
58. Mr. Ciaran O’Donnell solicitor in a replying affidavit of 20th July addressed this issue and exhibited a detailed attendance at the Tribunal which does not contain any reference to the issue concerning cross-examination said to have been raised on behalf of the applicant. Mr. O’Donnell states that his attendance and recollection differed substantially from that of Mr. McCarthy. He had no recollection of Counsel for the applicant seeking the opportunity to cross-examine Mr. Darcy, solicitor or the notice party in the context of the preliminary issue.
59. Mr. Darcy in an affidavit stated that he similarly had no recollection of Counsel seeking an opportunity to cross-examine him or the notice party and at no stage during the course of the hearing on 24th September did he believe that the outline of events given by the Counsel for the notice party concerning the correspondence would be open to cross-examination. He considered Mr. McCarthy to be mistaken. Mr. Darcy stated that the respondent was informed by the parties of potential difference between his assertion in respect of sending the internal appeal letter and the version of events proffered on behalf of the applicant that the letter was not received. Mr. Darcy and Ms. Sarah-Jane Cantwell, a member of the applicant’s HR Department, confirmed that both would be prepared to swear to their respective versions of events. Mr. Darcy states that:
“The respondent immediately indicated that there would be no need to receive sworn evidence in the context of the preliminary issue the subject of these proceedings and that it was satisfied that it understood the party’s respective submissions on this discrete point.”
60. Insofar as there is any conflict that might be relevant to the issue to be determined on this application, no application was made to cross-examine Mr. Darcy or Mr. O’Donnell by the applicant. In those circumstances having regard to the burden of proof, I am satisfied to proceed on the basis that no such application was made to adduce further evidence or to cross-examine any party and that the Tribunal was satisfied to proceed on the basis of the materials which had been submitted in the course of the hearing and on the written submissions made (see Fearon v DPP (Unreported, High Court, Ó Caoimh J., 24th July 2002), Carey v Finn [2003] I.L.R.M. 217 and Conway v DPP [2007] IEHC 434) . This view is supported by the failure by the applicant in its letter of 21st November 2014 to seek a further oral hearing or to adduce any evidence in support of the preliminary issue.
61. The court also notes that notwithstanding the applicant’s suggestion that it never received the letter invoking the internal appeals procedure, it nevertheless, following further correspondence agreed to accord the claimant an opportunity to appeal her dismissal internally which resulted in the decision rejecting that appeal and affirming her dismissal on 6th September, 2012. The further issue as to why an application prepared in October 2012 had not been made to the Tribunal before January 2013 does not in the court’s view materially assist the applicant in relation to what is essentially a legal point upon which it relies namely, whether the first dismissal rather than the decision on appeal is the one in respect of which time should be deemed to run for the purposes of s. 8 of the Act. Consequently, I do not consider that, even if correct, the failure by the Tribunal to hear evidence on these matters prejudiced the applicant in respect of that issue. Therefore I am satisfied that the applicant is not entitled to relief on these grounds.
62. It is recognised in the statement of grounds upon which the applicant relies that the respondent determined that the dismissal was not to take effect until the appeal process had ended (ground viii). It is clear from the summary of facts and the legal submissions set out in the Tribunal’s decision that it fully considered the facts, materials submitted and legal submissions made in the course of the oral hearing and subsequently concerning the date of the relevant dismissal. It found that the claimant was not precluded from prosecuting her claim because the terms of employment were silent on the implications and effectiveness of the dismissal once issued “and that when an appeal was lodged this did not act as a stay on such dismissal”. It then noted that the Tribunal considered that this led to a lack of clarity and created ambiguity which resulted in the claimant’s belief that her dismissal was stayed pending the outcome of the appeal. The Tribunal was satisfied that this was so. In reaching that conclusion it is clear that it rejected the submissions of the applicant and accepted the submissions of the claimant that the dismissal only became effective on the conclusion of the appeal. The claim was deemed to have been made within time and the claimant was permitted to pursue her claim. That claim still remains to be determined.
63. The court is satisfied for the reasons set out above that this decision was one reached within jurisdiction. If the applicant considers it to be incorrect in law, it has a right of appeal in accordance with the statutory framework provided for that purpose.
Conclusion
64. For all of the foregoing reasons the application is therefore refused.
Nova Colour Graphic Supplies Ltd. v. The E.A.T.
Barron J.[1987] IR 427
Barron J.
6th May 1987
The second respondent commenced employment with the applicant (“Nova Colour”) on the 2nd January, 1985, and was dismissed on the 13th December, 1985. He sought relief pursuant to the provisions of the Unfair Dismissals Act, 1977. Prior to his employment with Nova Colour, he had been employed by Offset Graphics Dublin Limited (“Offset”). That company had been unable to continue in business and his change of employment followed an agreement reached between him, on behalf of Offset, and Nova Colour.
It was contended on his behalf that by virtue of this agreement there was continuity of employment, so that the period of his employment with Offset might be taken into account in determining the period of his employment with Nova Colour. This contention was accepted by the first respondent who, by an award dated the 24th July, 1986, awarded the second respondent the sum of £8,665 as compensation for unfair dismissal. Nova Colour has appealed against this award to the Circuit Court.
On the 3rd November, 1986, Nova Colour was given leave to apply for an order of certiorari to quash the award upon the ground that the first respondent acted in excess of jurisdiction. On the 5th November, 1986, Nova Colour obtained an injunction to restrain the hearing of the appeal pending the hearing of this application.
The submission made on behalf of Nova Colour is that the first respondent exceeded its jurisdiction in finding as a fact that the second respondent had continuity of service as between Offset and Nova Colour. The test to determine whether or not such continuity of service exists is contained in para. 7 of the First Schedule to the Minimum Notice and Terms of Employment Act, 1973, as inserted by s. 20 of the Unfair Dismissals Act, 1977. That paragraph is as follows:”
“7. Where the whole or part of a trade, business or undertaking was or is transferred to another person either before or after the passing of this Act, the service of an employee in the trade, business or undertaking, or the part thereof, so transferred shall be reckoned as part of the service of the employee with the transferee and the transfer shall not operate to break the continuity of the service of the employee.”
The decision of the first respondent on this issue as set out on page 3 of its award was as follows:”
“After careful consideration the Tribunal is of the view that the result of the transaction was that the vast majority of trade customers transferred their business to the [second] respondent. The transfer of the claimant’s employment was the major factor in effecting this transfer of customers. The process was assisted by the transitional period during which the secretary at Offset Graphics Dublin Limited diverted sales enquiries to the [second] respondent. We recognise that goodwill is an intangible, but it is an intangible without which a trading company could hardly function as a living business. We are therefore of the view that “whole or part of (the) trade, business or undertaking” was transferred to the [second] respondent during the first few months of 1985. We therefore hold that there was continuity of employment and that the claimant is within the scope of the Act.”
The application is opposed by both respondents upon the ground that the finding of fact was fully supported by the evidence and by the second respondent also upon the ground that, as Nova Colour appealed the decision of the first respondent, it should now pursue that appeal.
The transfer of a trade, business or undertaking is a question of fact. I was referred to Kenmir Limited v. Frizzell [1968] 1 W.L.R. 329 and Woodhouse v. Peter Brotherhood Limited [1972] 1 W.L.R. 401. It is clear from these cases that there is no hard and fast rule as to what constitutes such a transfer. In the first case, the vital test was taken to be whether the effect of the transaction was to put the transferee in possession of a going concern. In the second case, the vital test was taken to be whether the
employees had continued to work as if no change of ownership had occurred. In the present case, it seems to me that there was evidence upon which it could be found as a fact both that Nova Colour was put in possession of a going concern and that the second respondent continued to work as if no change of ownership had occurred. Further, there does not seem to me to be any ground for holding that the finding of the first respondent was perverse taking the ordinary meaning of the words of the statutory rule.
Whether there has been a continuity of service bringing the second respondent within the provisions of the Unfair Dismissals Act, 1977, is a question of fact which the Tribunal has jurisdiction to determine and this it has exercised. If it is wrong in its determination, then this can be remedied by appeal, which is clearly the appropriate manner in which its decision should be challenged. An appeal lies under s. 10, sub-s. 4 from any determination of the Tribunal in relation to a claim for redress under this Act. So, even if it had been that there was no basis in fact for the decision of the Tribunal on the evidence before it, nevertheless an appeal would lie, in the course of which the appellant would not be limited to such evidence. In these circumstances, no useful purpose would be served in any event by granting discretionary relief since ultimately the matter could always be heard afresh on appeal.
The relief sought will be refused.
Raymond Hutton v Marjorie Philippi,
now deceased and Major George Philippi, Personal Representative of the deceased
1980 No. UD 291
Employment Appeals Tribunal
9 October 1980
[1982] I.L.R.M. 578
(Maurice Gaffney, Chairman with Michael Cleary and Captain Myles OMalley ODonoghue)
This appeal came before the Tribunal on a preliminary point on 28 March 1979. Mr John Buckley of Messrs. Hickey, Beauchamp, Kirwan and O’Reilly, Solicitors, appeared for the appellant. Mr Christopher Prentice of Messrs, Matheson, Ormsby and Prentice. Solicitors *579 appeared out of courtesy to the Tribunal on behalf of the executor of the late Mrs Philippi.
On 8 November 1978 the appellant filed his claim against his employer Mrs Philippi with the tribunal in accordance with s. 8 of the Unfair Dismissals Act, 1977. On 30 November 1978 a notice of appearance signed by the late Mrs Philippi was duly lodged. On 28 February 1979 Mrs Philippi died. She had made a will which was in the possession of her Solicitors Messrs. Matheson, Ormsby and Prentice whereby she appointed her son Major Philippi her executor.
On 6 March 1979 the said solicitors informed the tribunal of Mrs Philippis death and stated that they assumed therefore that the claim would be withdrawn.
The tribunal gave notice of the said letter to the solicitors for the appeallant and intimated to both parties that the tribunal would sit to hear representations from both sides as to the position arising by reason of the death in regard to the appellants claim.
Mr Prentice effectively made two points. The first was that the definition of employer given in s. 1 of the Act does not include the personal representatives of the employer. That is in contrast with the fact that employee is defined as including in the case of the death of the employee concerned at any time following the dismissal, his personal representative. Mr Prentice said that since employer is not defined to include in the case of the death of the employer concerned at any time following the dismissal, his personal representative, the claim by the employee must lapse for want of a person against whom it might be brought. His second point was that even if the claim should not lapse it would be necessary to change the title of the claim so as to show it was not maintained against the personal representative of the deceased. He pointed out that representation had not yet been raised and he thought that the title could not properly be changed until Mrs Philippis will had been proved in the High Court.
Mr Buckley referred to s. 8 of the Succession Act, 1965 which expressly provides that the personal representative of a deceased person may be sued in respect of all causes of action which by virtue of Part 2 of the Civil Liability Act, 1961 survive against the estate of the deceased.
The Civil Liability Act 1961 at s. 8(1) provides that on the death of a person all causes of action (other than excepted causes of action) subsisting against himself survive against his estate. A claim under the Unfair Dismissals Act is not an excepted cause of action. In the Civil Liability Act 1961, said Mr Buckley action is defined to include counterclaimand proceedings by way of arbitration. Accordingly Mr Buckley maintains that the appellants claim against the former employer still subsisted. He agreed that there would be a necessity to amend the title in the proceedings and that the amendment of the title must await the raising of representation to the estate of the deceased.
In reply Mr Prentice did not accept that proceedings under the Unfair Dismissals Act constituted an Action as defined in the Civil Liability Act, 1961. He referred to s. 15 of the Unfair Dismissals Act, 1977 as supporting what he said. The tribunal have determined that it was not the intention of the Unfair Dismissals Act that an unfairly dismissed employee should be deprived as redress by the subsequent death of his employer before a claim brought against *580 the employer in the employers life time had been brought to a determination. It is true that where an employee has been unfairly dismissed and it is found by the tribunal to have been unfairly dismissed the death of the employer may make impossible the reinstatement of the employee in his former position or his re-engagement in a similar position. That certainly would be the case if on the death of the employer his business was brought to an end. But it would not make impossible the awarding of compensation in respect of financial loss.
According to Halsburys Laws of England vol. 14 (1910 ed) at para. 710 all claims founded upon any obligation under a contract, bond or covenant or upon any debt or duty which might have been enforced by suing the deceased in his lifetime are in like manner enforceable to the extent of assets against the personal representative. The authority for the statement is given as Bacons Abridgement, Shepherds Touchstone and two 18th century cases, one of which is Hambly v Trott (1776) 1 Cowp. 371, 375.
The proceedings before the tribunal under the Unfair Dismissals Act are intended to lead to a determination so called rather than an award so called. But the nature of the proceedings is so close to the nature of the proceedings in a court action or in the case of an arbitration that the tribunal is satisfied that it is giving effect to the intention of the Statute in ruling that the appellants claim had not been defeated by the death of his former employer.
In the circumstances a further hearing has been adjourned on consent until the appellant is in a position to apply to the tribunal to have the name of the respondent altered to show the name of the legal personal representative of the deceased and the proceedings properly constituted.
Between the first and second hearing of this case, one of the members of the tribunal, Mr Jim Robertson, died. He was replaced at the second and subsequent hearing by Captain Myles O’Malley O’Donoghue.
At the second hearing, Mr Roddy Horan, BL, for the respondent submitted that because of the re-constitution of the tribunal, the matter should be heard ab initio and contended that since Mrs Marjorie Philippi died, the personal representative who is her son, Major George Philippi should not be named as the respondent and that these proceedings should therefore lapse. Mr John Buckley, for the appellant, objected to a fresh hearing on this point and stated that since this matter was argued on the first occasion, he was not prepared to argue it again. After listening to some argument by Mr Horan on this point, the tribunal decided that this claim should be continued against Major George Philippi as the personal representative of the late Marjorie Philippi.
The fact of dismissal was in dispute in this case.
The tribunal heard the evidence of the appellant and Major George Philippi and accepted as evidence extracts from the late Marjorie Philippis diary, which were submitted by Mr Horan. She had sent these extracts to her solicitor after he had received the notice of appeal in this case.
The tribunal was told of the disharmony which existed between the appellant and Mrs Philippi almost from the commencement of his employment with her. Mr Horan submitted that according to Mrs Philippis diary entry the appellant gave her two days notice on 24 June 1978, when she refused to provide him with *581 protective clothing which he requested for spraying roses. She told him he should give one months notice and when he did not leave after the two days, she concluded that he was taking the months notice. Mrs Philippi then went to France on holidays and when she returned on 10 July she was surprised to find him still there so on 11 July she gave him one months notice.
Major George Philippi told the tribunal that he was involved in hiring the appellant. At that time, he spoke to appellant on the telephone, who gave him an up to date account of his work background which included three years gardening experience and an excellent driving record. The appellant seemed to suit perfectly and Major Philippi recommended him to his mother.
In January 1978, Major Philippi said his mother became ill and went to London for medical treatment. She returned in February 1978 and was in a very frail state. She visited him in France in July 1978. While she was there she mentioned household affairs and said she was concerned that she had not the same relationship with the appellant as she had with his predecessor, who left to go to a better job. She said that on one particular occasion, she asked the appellant to clean the car. He replied that he cleaned it once a week. It was dirty so he eventually cleaned it. With regard to the garden he did not seem to be up to it, she complained that he did not tend the roses properly and told him that the appellant wanted protective clothing for doing this particular job. He had said he wanted to go and she told him that he could not leave until she returned from France, that she needed a month to get a replacement. When she returned from France, she telephoned her son to say that the appellant had not handed in his notice so she gave him one months notice and he was very rude to her. Major George Philippi said that his mother got on well with the rest of the staff, some of which had long service in her employment.
The appellant told the tribunal that when he was interviewed for the job of chauffeur/driver, he informed Mrs Philippi that he was not a qualified gardener but had some experience in gardening. He was accepted on those terms. The reason he was changing his job at all was because of an accommodation problem. His family had increased and the house he had was too small for them and Mrs Philippi was offering a two bedroomed cottage with free rent and electricity. She criticised his way of gardening from the start. She disagreed with the way in which he pruned the roses. The spray he used for spraying the roses was toxic and gave him a rash on his hands and face. She refused to give him protective clothing. On one occasion, she asked him to put manure on the roses and then told him to take it off again as it smelled too much.
After a short time, she employed a qualified gardener. The appellant said that she told him he was no good of a gardner, but he maintained that he was capable of looking after all of the garden except the shrubs.
He said they also had differences with regard to parking when she went shopping in the city. She expected him to park on double yellow lines while she went into the shops. He refused to do this as it was illegal. The problem was solved when a parking spot adjacent to the shopping area was acquired and it was agreed that he would wait for her there.
On one occasion when appellant went to the airport to collect Mrs Philippi, *582 she was in a wheelchair. When he asked her why she was in the wheelchair, she replied never mind, get the baggage. When she got home she was perfectly normal and able to get around. He told her it was deceitful behaviour but let it continue until he found out she had dismissed him. He said he did not give in his notice. He would have had nowhere to go. The first he knew of his dismissal was when he was asked by a colleague if he had been sacked as his job was advertised in the paper. He went to Mrs Philippi and asked her if he had been sacked and she said yes. When he asked for the reason, why, she did not give any.
The tribunal, having heard the evidence, is of the opinion that the appellant was dismissed by the late Mrs Philippi. The extract from her diary, which the tribunal accepts as authentic, states that she gave him one months notice on 11 July which expired on 11 August 1978.
With regard to the merits of this case the tribunal notes that there was an unhappy atmosphere between Mrs Philippi and the appellant and this was borne out by the hearsay evidence of her son which was accepted by the tribunal. However, the appellant did not admit to being fully capable in the garden and there is no evidence of misconduct. The onus is on the employer to show substantial grounds for the dismissal, and the tribunal is of the opinion that the respondent in this case failed to discharge such onus. Therefore the tribunal determines that the dismissal of the appellant was an unfair dismissal within the meaning of the Act.
Having considered the remedies open to us under s. 7 of the Unfair Dismissals Act, 1977, the tribunal is of the opinion that the most appropriate remedy in this case having regard to all the circumstances lies in compensation and we award the appellant compensation as set out hereunder. The tribunal feels that the appellant contributed to his dismissal in that he did not go out of his way to accommodate Mrs Philippis peculiarities and we measure such contribution at 33%. We therefore reduce his award by applying this percentage to the total amount awarded under the Act.
The tribunal notes that the appellant was unemployed from the date of dismissal 11 August 1978 up to 23 November 1978, when he secured alternative employment and we award him compensation for loss of earnings at the nett weekly wage of 42 less social welfare receipts of 32 per week for that priod.
We note that appellant was allowed to remain on in the house until he took up his new employment and we therefore make no award under this heading.
With regard to future loss, we note that appellants wages in his new job were much higher than that which he enjoyed with the respondent and since he suffered no loss under this heading, we accordingly make no award.
We note that appellant had been in the respondents employment for slightly over one year, therefore he had accrued more than half the period of time necessary to acquire rights under the Redundancy Payments Acts. We accordingly award him a nominal 10 under this heading.
*583
Loss of earnings from 11 August 1978 to 23 November 1978 14 weeks at the nett weekly wage of 42 less social welfare benefits of 32 per week.
140.00
Loss of rights under the Redundancy Payments Acts
10.00
Gross Award
150.00
less 33% contribution
50.00
Total nett award
100.00
Central Bank of Ireland v Martin Leo Gildea
1995 No. 346
Supreme Court
14 March 1997
[1997] 2 I.L.R.M. 391
(Nem. Diss.) (Hamilton CJ, Barrington and Keane JJ)
KEANE J
(Hamilton CJ and Barrington J concurring) delivered his judgment on 14 March 1997 saying: The respondent was employed as a security guard by the appellant (hereafter ‘the bank’) from 21 July 1981 to 4 February 1992, on which latter date he was dismissed for what was alleged to be gross misconduct. He made a claim to the Employment Appeals Tribunal established under the Unfair Dismissals Act 1977 (hereafter ‘the 1977 Act’) that he had been unfairly dismissed. The tribunal ruled in his favour and ordered his re-engagement by the bank. The bank appealed from that determination to the Circuit Court.
At the hearing in the Circuit Court, it was submitted on behalf of the bank that the respondent was employed ‘by or under the State’ within the meaning of s. 2(1)(h) of the 1977 Act and that, accordingly, the provisions of the 1977 Act were not applicable to his employment. Having heard submissions from counsel on behalf of the bank and the respondent, the President of the Circuit Court acceded to an application by the bank for a case stated to this Court. The question on which the opinion of the court is requested is as follows:
Is the respondent a person employed by or under the State within the meaning of s. 2(1)(h) of the Unfair Dismissals Act 1977?
Mr Hugh O’Neill SC, on behalf of the bank, submitted that the bank was an integral part of the government of the State performing essential functions of government. He pointed to the fact that the preamble to the Central Bank Act 1942 (hereafter ‘the 1942 Act’) describes the bank as ‘the principal currency *394 authority in the State’ and provides in s.6 (1) that the ‘general function and duty’ of the bank is:
safeguarding the integrity of the currency and ensuring that, in what pertains to the control of credit, the constant and predominant aim shall be the welfare of the people as a whole.
Mr O’Neill said that, following the abolition of consolidated bank notes, the bank was now the sole currency authority in the State.
Mr O’Neill referred to the decision of the former Supreme Court in McLoughlin v. Minister for Social Welfare [1958] IR 1, in which the former Supreme Court held that an assistant solicitor in the Chief State Solicitor’s office, although not a civil servant of the government, was a civil servant of the State. That judgment had been applied by Blayney J in Murphy v. Minister for Social Welfare [1987] IR 295 when he held that an ordinary member of the Labour Court was also in the civil service of the State. Similarly, the employees of the bank, although not civil servants of the government, were civil servants of the State and were properly described as employed ‘by or under the State’.
Mr O’Neill further submitted that since s. 23(3) of the 1942 Act provided that the Civil Service Regulation Acts 1924 and 1926 were not to apply to directors of the bank, it was clear that the intention of the legislature was that those provisions should apply to the other employees of the bank, including the respondent. He said that a similar inference could be drawn from the provisions of paragraph 1 of the Schedule to the Civil Service Regulation Act 1924, as adapted, removing from the ambit of the Act offices such as that of governor of the bank.
On behalf of the respondent, Mr Ercus Stewart SC submitted that the bank was a separate corporate entity created by statute which did not form any part of government. He referred to the provisions of s. 15(2) of the Central Bank Act 1989 under which the bank were empowered to appoint such officers and servants as it from time to time considered necessary for the due performance of its statutory function and which also provided that the officers and servants so appointed were to hold office upon such terms and subject to such conditions as it might appoint. He submitted that it was clearly not the intention of the Oireachtas that the bank’s employees should be in the same position as civil servants in respect of whom a self contained code providing for their recruitment, remuneration and dismissal had been provided under the relevant legislation, such as the Civil Service Regulation Act 1956.
Mr Stewart further submitted that the bank had itself recognised that this was the position by including in the terms of employment of the respondent the following at paragraph 14:
when probation has been completed and the officer made permanent, appoint *395 ments are subject to termination at the discretion of either party at any time on one week’s notice or in accordance with the Minimum Notice and Terms of Employment Act 1973. Normal industrial relations procedure will apply in accordance with the Unfair Dismissals Act 1977.
Mr Stewart also submitted that, as a body created by statute and carrying out admittedly important public functions, the bank was in a similar legal position to bodies such as Telecom Éireann and An Post, the employees of which had been recognised as being entitled to rely on the provisions of the 1977 Act, citing in support the decision of Barron J in Loftus and Healy v. An Bord Telecom High Court (Barron J) 13 February 1987 and the decision of the Employment Appeals Tribunal in the case of Hayes v. B & I Line, 21 December 1979.
In considering these submissions, it should be said at the outset that this Court is not concerned with whether the bank might have been in any way estopped from contending that the respondent was not entitled to make a claim under the 1977 Act, having regard to the apparent acceptance by the bank in his terms of employment that the legislation was applicable to the post which he held. That would be a matter which would fall to be determined (if at all) by the learned President of the Circuit Court at the hearing of the appeal before him. The Employment Appeals Tribunal is, moreover, a creature of statute and it may be that, in the case of any of the classes of employment which are expressly excluded from the ambit of the 1977 Act, it is not open to the employer and employee by agreement to confer on the tribunal, and the Circuit Court on appeal, a jurisdiction which is expressly excluded by the statute itself. Again, however, it is not necessary for this Court to decide that issue: we are solely concerned with the question posed for determination by the case stated, i.e. as to whether the respondent is a person employed ‘by or under the State’ within the meaning of s. 2(1)(h) of the 1977 Act.
The bank, when it was established in 1942, took over the currency functions which had been the responsibility since 1927 under the Currency Act of that year of the Currency Commission. As a result of the 1942 Act and subsequent legislation, the bank is the only body in this country with authority to issue currency, the exchequer and other government accounts are entrusted to it and (in the words of s. 6 of the 1942 Act) it has the general function of taking such steps as it considers appropriate and advisable ‘towards safeguarding the integrity of the currency’. It is beyond argument that the bank thus discharges functions which are of central importance in the government of a modern state.
The bank is also (by virtue of s. 5 of the 1942 Act) a body corporate with perpetual succession, an official seal, and power to sue and be sued in its corporate name and to hold and dispose of land. It is conducted and managed by a board of directors consisting of a governor who is appointed by the President on the advice of the government and six directors who are appointed by the *396 Minister for Finance.
S. 15(2) of the Central Bank Act 1989 provides that:
the bank shall appoint a secretary and such other officers and servants as the bank shall from time to time consider necessary for the due performance of its functions under this Act and every secretary, officer, and servant so appointed shall hold office upon such terms and subject to such conditions as the bank shall determine.
S. 2(1) of the 1977 Act provides that:
This Act shall not apply in relation to any of the following persons …
(h) A person employed by or under the State other than persons standing designated for the time being under s. 17 of the Industrial Relations Act 1969.
There was annexed to the case stated a schedule of posts in various Departments of State and in the Offices of Public Works and of the Revenue Commissioners which were designated for the purpose of the Industrial Relations Act 1969 and to whom, accordingly, the 1977 Act applied. No posts in the bank were so designated, although it was pointed out in the course of argument that, in the case of the Department of Transport and Power (as it was then called) the post of airport security officer at Shannon was so designated.
It should also be noted that certain other classes of employment in the public service are also excluded from the ambit of the 1977 Act, including members of the defence forces and the Garda Síochána and officers of local authorities, health boards, vocational education committees and committees of agriculture.
If the exclusion in s. 2(1)(h) was of persons ‘employed by the State’, the claim by the respondent that he was not excluded would be almost irresistible: it is clear that he is not employed by the State, but by the bank. It is urged on behalf of the bank, however, that the expression ‘a person employed by or under the State’ brings within its scope persons such as the respondent who could not be regarded as directly employed by the State but who are employed by a body which performs functions essential to the operation of the State.
In support of their respective positions, Mr O’Neill and Mr Stewart both invoked the decision of the former Supreme Court in McLoughlin v. Minister for Social Welfare [1958] IR 1. In that case, an assistant solicitor employed in the Chief State Solicitor’s office claimed that he was not an ‘employed contributor’ for the purposes of the Social Welfare Act 1952, since he did not come within the only relevant class of employment, i.e. ‘employment in the civil service of the government’. His claim failed in the High Court, but succeeded in the Supreme Court. However, the decisions of the majority in that court (Kingsmill Moore and Ó Dálaigh JJ) made it clear that, although he was not *397 employed in the ‘civil service of the government’, he was employed in the ‘civil service of the State’. Kingsmill Moore J explained the meaning of the expression ‘civil service’ as follows (at pp. 14–15):
It was argued for Mr McLoughlin first, that he was not a civil servant, and secondly that, if a civil servant, he was not a civil servant in the service of the government. The words ‘civil service’ and ‘civil servant’, though in frequent use on the lips of politicians and members of the general public, are not terms of legal art. The British Royal Commission on the Civil Service which reported in 1931 stated that ‘there is nowhere any authoritative or exhaustive definition of the civil service’. The phrase seemed to have been first used to describe the non-combatant service of the East India Company, and was well established in English political language by the middle of the nineteenth century.
Though it may be difficult to frame an exact definition, it does not seem in any way impossible to reach an approximation to the meaning of the words sufficient to meet the requirements of the present case. In Britain civil servants were servants of the Crown, that is to say servants of the King in his politic capacity, but not all servants of the Crown were civil servants. Those who used the strong arm — military, naval and police forces — were excluded from the conception, for the service was civil, not combatant, and so also, by tradition, were judges and holders of political offices. Civil servants were paid out of monies voted by parliament and, if permanent, had the benefit of the Superannuation Acts. In theory, as servants of the King, they held their positions at pleasure but in practice they were treated as holding during good behaviour.
The conception may have been a little vague in its connotation, a little ragged around the edges of its denotation, but, as the civil service and its regulation fell within the scope of the prerogative, any inconvenient difficulties could be set right by an order in council.
The bulk of British civil servants working in Ireland were taken into the service of Saorstát Éireann and the phrase, with the ideas attached to it, was assimilated into Irish political life. Soon it made its appearance in the Irish statute book, and, after the passing of our present Constitution, in statutes of the Republic. Borderline cases have been dealt with by special legislation. Persons have been deemed to be civil servants for one purpose and deemed not to be civil servants for another. But, if we substitute ‘State’ for ‘King’ the summary which I have already given corresponds to the present conception of civil servant in Ireland.
Having said that he had no doubt that the plaintiff in that case was a civil servant, Kingsmill Moore J went on (at p. 16):
Assuming then that Mr McLoughlin is a civil servant, is he a civil servant employed in the civil service of the government? The expression, ‘civil service *398 of the government’, unless given a restrictive interpretation is a contradiction in terms. The status of a civil servant is that of a servant of the State. He may indeed be assigned to serve in any civil department of the State, or in the service of any organ of the State, including the government, and the power of so assigning him may be conferred by law on the government; but he is still a servant of the State. If, however, his service happens to be in one of the departments of the government he may conveniently be described as being also a servant of the government.
The learned judge then went on to consider the consequences for the plaintiff’s status of the fact that he was a member of the staff of the Attorney General, who was the holder of one of the specific organs of State created by the Constitution and who was not a member of the government. That led him to the conclusion that the plaintiff, although properly described as ‘a civil servant of the State’, was not employed in the ‘civil service of the government’.
It has been seen that Kingsmill Moore J said that, where a civil servant is assigned to one of the departments of the government, he may conveniently be described as being also ‘a servant of the government’. It had been held by the High Court of Saorstát Éireann in Carolan v. Minister for Defence [1927] IR 62 that members of the defence forces and the Minister for Defence were fellow servants in the employment of the government. However, in Byrne v. Ireland [1972] IR 241 Walsh J indicated that this might be a somewhat inexact description, saying (at pp. 286–287):
In McLoughlin v. Minister for Social Welfare it was indicated that persons in the civil service may be in the civil service of the State rather than the civil service of the government, but I think that the correct view is that they are all in the service of the State. In Carolan v. Minister for Defence Sullivan P referred at p. 66 of the report to the Minister for Defence and his subordinates as ‘both being servants of the public’ and at p. 68 he referred to the subordinates as ‘servants of the public in the employment of the government and, as such, fellow servants of the Minister for Defence ….’ As the minister is not a servant of or in the employment of the government, it seems quite clear that the court in that case was not deciding that the subordinate was in the service of the government as distinct from the State. It is in the latter instance only that he is a fellow servant with the minister.
It may be that the somewhat different nuances which emerge from these decisions reflect the fact that the consequences of the State or ‘Ireland’ being treated as a juristic entity took some time to emerge in the evolving jurisprudence of the courts. Indeed, it was not until 1949, in Comyn v. Attorney General [1950] IR 142, that the principle was unequivocally asserted, Maguire CJ saying (at p. 165): *399
Under our Constitution the State is a juristic person with a capacity to hold property. In the opinion of this Court, the State cannot be regarded as a government department.
In Byrne v. Ireland the issue was as to whether the State, as such a juristic person, was liable vicariously for the tortious acts of civil servants. Walsh J, who was one of a majority of four members of this Court holding that it was so vicariously liable, said in words which are of significance in the present context (at p. 285):
The officials and other employees in the [Department of Posts and Telegraphs] are not the employees of the Minister for Posts and Telegraphs, and he cannot be made liable in damages for the tortious acts committed by these employees, even though they may have been appointed by him to their particular employment. Both they and the minister are persons employed by or under the State and in my view it makes no difference if, being civil servants, they are civil servants in the service of the government or are civil servants in the service of the State — a distinction which was adverted to in McLoughlin v. Minister for Social Welfare. [emphasis added].
Thus, civil servants who are part of the staff of discrete organs of state such as the President, the Attorney General and the Auditor and Comptroller General, are properly regarded as civil servants ‘employed by the State’. Civil servants who are employed in the various departments of state are not properly regarded as employees of the minister responsible for the particular department. Nor are they appropriately described as civil servants employed by the government: apart from any other considerations, the government, in Professor Kelly’s phrase, lacks the ‘well rounded persona’ available to the individual ministers. (See Kelly on The Irish Constitution , 3rd ed. at p. 225). They do, however, clearly fall within the second limb of Walsh J’s classification as ‘persons employed … under the State’.
To which of these categories does the respondent belong? The answer is clear: he belongs to neither. He is not a member of the staff of any of the organs of state created by the Constitution and accorded a role in the constitutional order separate and distinct from the three organs of government, legislative, executive and judicial, such as the Attorney General. He is not a civil servant in any of the departments responsible to the individual ministers who constitute the government and hence is not a ‘civil servant of the government’ and thus a person ‘employed … under the State’. He is employed by a body which has been created by statute, the powers of which, however essential they may be to the functioning of the State, can be removed from them at any stage by the Oireachtas. He is thus in no different position from those employed in a vast range of what have come to be called ‘semi-state bodies’, the employees of which may, by specific *400 legislative provision, be deemed to be civil servants but who, in the absence of any such provision, are not to be so regarded.
Since the respondent is not a person ‘employed by or under the State’, it follows that the provisions of the 1977 Act are applicable to him. That conclusion is not disturbed by the fact that it was thought necessary or desirable in the 1942 Act to provide expressly that the provisions of the Civil Service Regulation Act 1924 were not to apply to directors of the bank. The directors are not employed by the bank; they are appointed to their positions by the Minister for Finance and their remuneration, allowances and conditions of service are to be determined by him or her. It was understandable that, in these circumstances, it was considered appropriate to provide that they should not be subject (as they otherwise might have been) to the provisions of the 1924 Act.
As in the case of two other categories of employment in the public service excluded from the ambit of the 1977 Act — the defence forces and the Garda Síochána — the civil service is the subject of detailed legislation dealing with the terms and conditions of employment of civil servants, and, in particular, with the circumstances in which they may be suspended or removed from the offices which they hold. It would be an anomalous state of affairs if a person in the position of the plaintiff were to be similarly excluded from the ambit of the Act, although his terms and conditions of employment are not subject to any form of statutory regulation and are solely governed by the terms of any contract entered into between him and the bank. If that was indeed the intention of the Oireachtas when they excluded from the ambit of the Act persons employed ‘by or under the State’, so be it. However, for the reasons which I have given in this judgment, I am satisfied that, in the light of the authorities to which I have referred, the respondent is not a person ‘employed by or under the State’ within the meaning of s.2(1)(h) of the 1977 Act.
I would answer the question posed by the case stated in the negative.
The State (IBM Ireland Ltd) v The Employment Appeals Tribunal and Sean F. O’Briain
1982 No. 702SS
High Court
25 April 1983
[1984] I.L.R.M. 31
(Hamilton J)
HAMILTON J
delivered his judgment on 25 April 1983 saying: S. 8 of the Unfair Dismissals Act 1977 provides that: *32
(1) A claim by an employee against an employer for redress under this Act for unfair dismissal may be brought by the employee before a rights commissioner or the tribunal and the commissioner or tribunal shall hear the parties and any evidence relevant to the claim tendered by them and, in the case of a rights commissioner, shall make a recommendation in relation to the claim, and, in the case of the tribunal, shall make a determination in relation to the claim.
Sub-s. (2) provides that:
A claim for redress under this Act shall be initiated by giving a notice in writing (containing such particulars (if any) as may be specified in regulations under s. 17 of this Act made for the purposes of s. 8 of this section) to a rights commissioner or the tribunal, as the case may be, within six months of the date of the relevant dismissal, and a copy of the notice shall be given to the employer concerned within the same period.
The determination of the fundamental issue in these proceedings, which are applications to make absolute notwithstanding cause shown, conditional orders of mandamus, certiorari and prohibition granted to the prosecutor herein on 17 December 1982 depends on the interpretation of the latter subsection of s. 8 of the said Act.
The facts relevant to the issue before the court are not in dispute and may be stated briefly as follows:
1. The second-named respondent was employed by the prosecutor as an office products salesman.
2. On 6 April 1981 he was dismissed from such employment by the prosecutor for alleged misconduct.
3. The second-named respondent initiated a claim for redress under the Unfair Dismissals Act, 1977 by giving to the first-named respondent a notice in writing in accordance with the provisions on the said s. 8(2) of the Act within the period specified in the Act.
4. The second-named respondent did not give to the prosecutor, the employer concerned, a copy of the said notice.
5. The first-named respondent did, however, furnish to the prosecutor a copy of the notice in writing within the time or period specified in the Act.
6. When, on 27 May 1982, the first-named respondent sat for the purpose of hearing the second-named respondents claim against the prosecutor, it was submitted that having regard to the decision of Judge Ryan in the case of IBM v Feeney [1983] ILRM 50 the first-named respondent had no jurisdiction to hear and determine the claim made under the Act by the second-named respondent in view of the failure by the said respondent to give the notice in writing to the employer concerned, the prosecutor herein.
7. At an adjourned hearing on 20 July 1982, the first-named respondent heard submissions on behalf of both parties with regard to its jurisdiction to hear and determine the claim.
8. By letter dated 1 October 1982 the first-named respondent communicated to the parties its decision that it had jurisdiction to hear the second-named respondents claim.
9. Requests were made by the prosecutor to the first-named respondent to make up a formal determination in relation to the decision arrived at by them as communicated to the prosecutor by letter dated 1 October 1982 but they refused to do so.
10. The prosecutor appealed against the said determination and the appeal was listed for hearing before Judge Ryan on 10 December 1982 but no order was made.
*33
11. The claim was then listed for hearing on 4 and 5 January 1983 before the first-named respondent.
12. On 17 December 1982 conditional orders of mandamus, certiorari and prohibition were granted by McMahon J.
13. By affidavit dated 12 January 1983 sworn by Patrick O’Bryne, the first named respondent purported to show cause against the making of the said orders.
The basic question for determination is whether, in view of the failure by the second-named respondent to give to the prosecutor a copy of the notice in writing initiating his claim within six months of the date of his dismissal, the first-named respondent has jurisdiction to hear and determine his claim.
The rights conferred by the Unfair Dismissals Act 1977 are statutory rights; the powers conferred on the first-named respondent are statutory powers and in connection with their exercise the statutory requirements of the Act must be complied with.
S. 8(2) of the Act requires that (1) a claim for redress under this Act shall be initiated by giving a notice in writing (containing such particulars as may be specified in regulations under s. 17 of this Act made for the purposes of sub-s. (8) of this section) to a rights commissioner or the tribunal, as the case may be, within six months of the date of the relevant dismissal and that (2) a copy of the notice shall be given to the employer concerned within the same period.
In the case of IBM v Feeney which was heard and determined by Judge Ryan in the Dublin Circuit on appeal from the second-named respondent, the requirements of the sub-sections were considered by him.
The facts in Feeneys case were different to the facts in this case. In Feeneys case, the employer had not received from any source within the relevant period a copy of the notice in writing, whereas in the instant case the prosecutor had received a copy of the notice from the first-named respondent.
In Feeneys case, the first-named respondent had held that the requirements of s. 8(2) of the Act with regard to service on the employer concerned were regulatory and not mandatory. Judge Ryan disagreed with this view and in the course of his judgment stated:
It is the employee who is obliged to take the necessary steps to initiate the claim.
In my view in order validly to initiate a claim an employee must himself serve the necessary notice upon the tribunal or the rights commissioner as the case may be within six months of the date of the relevant dismissal. The second part of the subsection which requires notice to be given to the employer concerned is in my view, contrary to the order of the tribunal in this case, a mandatory requirement which obliges the employee to serve the necessary notice not only on the tribunal but also on the employer
In my view therefore the expression shall be given to the employer concerned within the same period which is contained in s. 8 (2) of the Unfair Dismissals Act 1977 is mandatory and requires that the employee shall furnish a copy of the notice in question to the employer within six months of the date of the relevant dismissal.
As the said copy notice in writing had not been given to the employer concerned the appeal was allowed and the employees claim was dismissed.
*34
Having regard to the facts of that particular case, the decision of the learned Circuit Court Judge was undoubtedly correct but his interpretation of the requirements of the said s. 8 (2) of the Act is challenged by the respondents herein.
As stated by Judge Ryan the general object of the Unfair Dismissals Act 1977 is found in its long title which reads as follows:
An Act to provide for the redress for employees unfairly dismissed from their employment, to provide for the determination of claims for such redress by rights commissioners and by the tribunal established for the purpose of determining certain appeals by the Redundancy Payments Act 1967, to provide that such tribunal shall be known as the Employment Appeals Tribunal, to make provision for other matters connected with the matters aforesaid and to amend the Minimum Notice and Terms of Employment Act 1973.
The objects of the Act are principally to provide for the redress for employees unfairly dismissed from their employment and to provide for the determination of claims for such redress, by a rights commissioner or the tribunal.
Before either the rights commissioner or the tribunal can deal with a claim for redress, a notice in writing of the claim must be given to them within six months of the date of the relevant dismissal and a copy of the notice must be given to the employer concerned within the same period viz. six months of the date of the relevant dismissal.
It is of course the responsibility of the dismissed employee to ensure that these statutory requirements are complied with because if they are not, the rights commissioner or the tribunal has no jurisdiction to hear and determine his claim.
The sub-section however is silent as to who should give the said notices. Obviously the notice in writing initiating the claim for redress will be given by the employee, his solicitor, trade union or anybody on his behalf.
Obviously notice must be given to the employer. The sub-section and the interests of natural justice require it.
But does the sub-section require that the copy notice required to be served on the employer concerned be served by the employee or his agent or is the requirement of the sub-section met once the employer concerned is served with a copy of the notice in writing by any person, such as the first named respondent?
In my view, having carefully considered the terms of the section, I am satisfied that the requirements of the s. 8 (2) of the Act are complied with once
(a) the notice in writing claiming redress is given to the rights commissioner or tribunal within six months of the date of the relevant dismissal and
(b) a copy of the notice is given to the employer concerned within the same period.
Once the said latter notice is served on the employer concerned within the said statutory period, it does not appear to me to matter whether it was served by the claimant or by the tribunal.
*35
Consequently I am satisfied that the first-named respondent has jurisdiction to determine the claim of the second-named respondent against the prosecutor.
Gearoid Walsh v Irish Coast Guard—Department Of Transport
UD1137/2013
Employment Appeals Tribunal
25 February 2015
[2015] 26 E.L.R. 214
(February 25, 2015)
This case came before the Tribunal by way of a claim by the claimant in respect of his dismissal from his employment by the respondent.
Preliminary issue
The respondent’s legal representative raised a preliminary issue concerning the Tribunal’s jurisdiction to hear the case. It was submitted that the claimant was not an employee within the meaning of the definition of an employee as set out in Unfair Dismissals Act 1977 to 2007. The respondent’s representative submitted a detailed and lengthy submission the substance of which was that the claimant was a volunteer as defined within s.51A(1) of the Civil Law (Miscellaneous) Act 2011 which defines voluntary work and volunteer as follows:
“‘voluntary work’ means any work or other activity that is carried out for any of the following purposes:
(a) a charitable purpose within the meaning of the Charities Act 2009;
(b) without prejudice to the generality of paragraph (a), the purpose of providing assistance, advice or care in an emergency or so as to prevent an emergency;”
“‘volunteer’ means a person who does voluntary work that is authorised by a volunteer organisation and does so without expectation of payment (other than reasonable reimbursement for expenses) or other reward;”
The respondent’s representative drew the Tribunal’s specific attention to voluntary workers.
The respondent’s representative also referred to the case of Singh Oberoi v Commissioner of An Garda Síochána Equality Officer Decision DEC-E2012-040, March 16, 2012 and the decision of Feeney J. in Commissioner of An Garda Síochána v Singh Oberoi [2014] E.L.R. 17:
“For there to be a contract of employment and for a person to be an employee, the requirement of mutuality of obligation must be present. That is, there must be mutual obligations on the employer to provide work for the employee and on the employee to perform work for the employer. In the absence of such mutuality, there is no contract of employment as there is no contract for services. In the absence of a mutuality of obligation, I could not conclude that there was in existence a contract of service or a contract of employment.”
*216
The respondent further referred the Tribunal to a High Court decision of Edwards J. in the case of Minister for Agriculture and Food v Barry [2008] E.L.R. 245 wherein the court decided that in order for a relationship of employer/employee to exist “there must be mutual obligations on the employer to provide work for the employee and on the employee to perform work for the employer. If such mutuality is not present, then either there is no contract at all or whatever contract there is must be a contract for services or something else, but not a contract of service”. It was submitted by the respondent that the case before the Tribunal lacked any obligation on the respondent to provide work or furthermore on the claimant to be available for work.
The claimant submitted P60’s and payslips in respect of monies received for the services which he provided as an officer in charge with the respondent. He told the Tribunal that since 2006 he had full responsibility for arranging training for coastguard volunteers within his unit. In addition he had responsibility for arranging a call out service and co-ordinating search and rescue missions one of which lasted 21 days. The Tribunal notes that the claimant receives an allowance of €222.20 per annual quarter and in addition receives €12.70 for attendance at each exercise. The Tribunal also notes that the language used in the claimant’s appointment letter would suggest that the claimant had an expectation that he was an employee. In that regard the letter stated “I am directed by the Minister for Transport to inform you that you have been recommended for appointment as Area Officer of the Irish Coast Guard Unit in Costello Bay… Your appointment will initially be for a probation period of one year and it carries no rights to pension and is terminable at any time by one month’s notice in writing.”
Determination on preliminary issue
Notwithstanding the expectation of the claimant that he believed he was an employee, the Tribunal notes the requirements for a contract of service to exist as set out in the judgments of Feeney J. and Edwards J. and in view of the nature of the service provided by the claimant which was that of a volunteer, the Tribunal is satisfied that the claimant was not employed under a contract of employment. Accordingly the Tribunal declines jurisdiction.
Elke Williams v Camphill Communities of Ireland
UD/20/108
Labour Court
7 September 2021
[2022] 33 E.L.R. 340
This is an appeal by Camphill Communities of Ireland against an adjudication officer’s decision ADJ-00021196 given under the Unfair Dismissals Acts 1977 to 2015 (“the Acts”) in a claim by Elke Williams that she was unfairly dismissed by her former employer. The adjudication officer upheld the complaint of unfair dismissal and awarded compensation of €41,400.
In line with the normal practice of the court, the parties are referred to in this determination as they were at first instance. Hence, Ms Williams is referred to as the complainant and Camphill Communities of Ireland are referred to as the respondent.
Background
The complainant joined the respondent, a registered charity, in September 1994 and performed a variety of roles within the organisation. The nature of the respondent’s organisation is that they provide support on a residential and non-residential basis to those with intellectual disabilities and other needs in a community setting. The complainant’s role within the community was as a LTCW. The complainant with her family lived within the community and their accommodation and reasonable needs were met by the community. The complainant’s husband was also taken on as a LTCW. The ethos of the organisation is that the relationship to the community is based on mutual trust, a shared vision and inner commitment to the principles values and aims of the community. The complainant was classified as an LTCW and she worked within the community structure. In extracts from the respondent’s website provided by the respondent to the court, LTCW are described as “keen to take on major responsibilities in the home, work, administration, social and spiritual life of the community.” The extract goes on to say that “Co-workers do not draw a salary, but their reasonable needs are met by the community from its funds.” It notes that some LTCW will carry major responsibilities for the contractual relationships to placement and funding bodies and the statutory obligations that go with these. It identifies the type of roles that LTCWs will carry out such as house guardian, workshop leader, teacher, therapist administrator. In terms of responsibilities the website states that LTCWs will be responsible for the resident’s daily welfare and safety arrangements, managing and supervising the domestic provisions and also liaising with the resident’s families, social workers and other agencies involved *344 with the resident’s welfare. It goes on to say that as an LTCW you are also bound to carry out specialist responsibilities in areas such as teaching, therapies, leading day activities, craft workshops, admissions work among other things. The website states that the levels and nature of responsibilities that a LTCW takes on usually requires a commitment of a minimum stay of two years. However, LTCWs often stay on for five or more years. LTCW do not draw a salary but their reasonable needs, including discretionary provision for their needs in retirement are met by the community from its funds. The complainant submits that she was an employee of the respondent and that her employment was terminated by the respondent on 31 December 2018. The respondent submits that the complainant was never an employee and that she left of her own volition on 15 October 2018 when she and her family moved out of their community accommodation.
The complainant lodged her complaint with the WRC on 23 April 2019. The cognisable period as defined by the Act is 24 October 2018 to 23 April 2019.
Preliminary issues
The respondent submitted that there were a number of preliminary issues that the court needed to consider: 1) there was no contractual arrangement between the parties and there was no intention to create legal relationships; 2) the complainant was not at any time an employee of the respondent, she provided her services on a voluntary basis and was not paid a salary; 3) there was no mutuality of obligation; 4) as the complainant had left the community in October 2018 her complaints were out of time. The court having reviewed the preliminary issues raised by the respondent concluded that these issues could not be considered without hearing the case in full. The court proceeded to hear the case in full. As dismissal was in dispute the burden of proof lies with the complainant to show that a dismissal as defined by the Act took place
Summary of complainant’s submission and evidence
Mr O’Sullivan BL on behalf of the complainant submitted to the court that her employment was terminated by the respondent on 31 December 2018. This was the final date for vacating the apartment that had been provided for the use of the complainant and her family. December was also the last month that the complainant received a monthly allowance of €1,000 in respect of meeting her needs. While the complainant and her family had moved out in October 2018, they still had the keys of and access to the apartment up until 31 December 2018. During her tenure with the respondent the complainant caried out many roles and at one time was a member of the Board of Directors which at the time she was on it was known as the Council. The complainant does not accept that each community group was autonomous, they all fell under the control and direction of the Board of Directors. From about 2012 onwards the HSE as one of the main funding bodies raised a number of issues in respect of the Camphill model and *345 required that more formalised structures be put in place. A number of new policies and procedures were introduced at national level and rolled out to the various communities. While the role of LTCW ceased to exist after 31 December 2018, unlike most of her colleagues the complainant was not offered an opportunity to transition to the new employee model. It was never clarified for the complainant why she was not afforded that opportunity other than she was told that a decision had been made. While the complainant did not receive a salary during her tenure, she did receive emoluments and/or consideration in the form of accommodation being provided and all her needs including family holidays being paid for by the community in exchange for the work she caried out in the various roles assigned to her. It is the complainant’s submission that her case can be distinguished from the case of Melhuish v Redbridge Citizen Advice BureauUKEAT/0130/04/DM. In that case the complainant only received reimbursement of expenses incurred and therefore it was held that as no consideration passed between the parties there was not a contractual arrangement. Mr O’Sullivan BL submitted that in this case consideration in the nature of providing her accommodation and meeting her needs did pass from the respondent to the complainant.
The complainant was rostered to do various elements of her work during the week and was subject to performance review caried out by the national safeguarding officer who was a paid employee of the respondent. The complainant was also subject to a number of policies such as grievance and disciplinary procedures, these procedures clearly distinguish between volunteers and LTCWs. It is the complainant’s submission that the nature of the relationship between herself and the respondent was in the nature of an employment relationship and that she was at all times working for the respondent. In the application form that they all had to fill out as part of the transition process she clearly indicated that she wished to transition into the new model. However, she was never given that option and her employment was unilaterally terminated by the respondent.
The complainant in her evidence to the court stated that she became aware of a vacancy in Duff Carraig one of the Camphill communities in 1994. She submitted an application on behalf of herself and her family. The application process was through a written application to the management team. This was followed by an exchange of phone calls cumulating in the complainant and her family being invited to attend for a two-week trial period. During that period, they were interviewed and had a meeting with the management team in Duff Carraig. Initially they were not successful, and the position was offered to a different family. They were at a later stage offered a position in Duff Carraig which they took up. Both herself and her husband were given positions within the community. In 2008 a new community was set up in Ballymoney and her family moved there. Initially her role was as a house co-ordinator proving support to all the residents and the short- term co-workers. In return for fulfilling that role the community met all their needs including paying for holidays and *346 putting their eldest son through college. Shortly after the new centre was set up in Ballymoney, role descriptions started to be used. In and around 2012 national templates in respect of various policies and procedures were drawn up nationally and circulated to the communities for implementation. These policies were drawn up by a subcommittee of the Board of Directors and then approved by the Board of Directors. These procedures were drawn up in advance of HIQA taking on a role in the sector. Some national policies existed prior to 2012 such as policies on safe-guarding vulnerable adults. It was the complainant’s evidence that there was also supervision and appraisal of the LTCWs from about 2008 and while this was carried out initially by the community team, from 2011/2012 onwards, it became more formalised. As a social care worker, the complainant had to undergo supervision training and meet with her supervisor every six weeks. Appraisals were annual and both line managers and supervisors would attend the appraisal meetings.
It was the complainant’s evidence that the Board of Directors which in 2012 was referred to as the Council was her employer. There were two national employees who liaised between the Board of Directors and the community. The Board of Directors initially consisted of representatives from all the communities. It was the complainant’s evidence that she as an LTCW had for a period of time, been a member of the Board. The Chair of the Board was an external person, and the company secretary was the only paid member of the Board. The communities were required to report monthly to the Board of Directors and submit their financial plans for the future. In and around 2012 a national template was developed for reporting. All communities had to report in once a month in respect of their budget and the finance group who were a sub-group of the Board of Directors, would give feedback. Yearly budgets were submitted in advance to the finance group who would report to the Board of Directors. It was the complainant’s submission that from about 2017 she was aware that there was an engagement with Revenue about their status, but she was not involved in the discussions.
Prior to 2017, it is the complainant’s evidence that her role was social care co-ordinator which involved being the day service co-ordinator for the community which had six residents and 12 day attendees. She also had responsibility for admissions of short-term and long-term volunteers and for the residents and the day residents. From 2017 Ms Byrne was appointed as the person in charge (PIC) for Ballymoney, she was only there part-time but she took over the role of the social care co-ordinator and also got involved with the admissions procedures. It is the complainant’s evidence that these were all roles that she had carried out. It is the complainant’s evidence that she was out on certified sick from 13 August 2018 until her employment was terminated. It is the complainant’s evidence that from early December 2018 her picture was removed from the poster in the community setting out who was who. In mid-2018 she became aware of the proposals to *347 change the model and to transition to an employee model as her husband was involved with the transition working group. The transition was going to mean a change to their living arrangements. Herself and her husband started looking for alternative accommodation for their family. In October 2018 they found a suitable house to rent and moved out of the community. However, they retained access to the community accommodation until 31 December 2018 and continued to receive an allowance from the community until that date. The transition document suggested that there would be options of either leaving and coming to a financial arrangement with the respondent or being offered the opportunity to transition to become an employee. It is the complainant’s evidence that she indicated in her transition form that her preference was to transition to become an employee. It was the complainant’s evidence that she was never offered a role post-transition and it was never explained to her why other LTCWs were offered roles and she was not. The complainant’s evidence is that the first she knew that she was not going to be offered a contract was on 17 December 2018 when she was told by the CEO. She was not given any explanation as to why she was not being offered a contract. In the run up to 17 December it is the complainant’s evidence that she had been trying to find out what was happening, while she did miss two meetings with the transition team, she was only given very short notice of the meetings. It was the complainant’s evidence that she had co-operated with ongoing change, but she had a fractious relationship with the PIC. The complainant stated that from May 2018 onwards her monthly budget had been reduced from €1500 to €1000 and that was the amount she received monthly up to the end of December 2018. The complainant in support of her contention that she was an employee gave evidence of having been through a disciplinary procedure in 2017 where she was given a verbal warning. The complainant went on to say that in April 2018 there was a complaint from one of the resident’s relatives about her, and she was suspended but asked to keep herself available for work. The complaint was not upheld so the complainant returned to work.
It is the complainant’s evidence that after 31 December 2018 when her employment with the respondent came to an end, the complainant found alternative employment in January 2019. However, with the onset of Covid-19 in March 2020 the employment closed.
It is the complainant’s evidence that the respondent was funded by the HSE and received a capitation grant for each resident or day resident. Initially they had separate credit cards for personal expenses but that was changed, and the personal credit cards were removed. When the complainant moved out of the community house, she asked for support with their housing costs, but this was not forthcoming. It was the complainant’s evidence that as part of the transition process, she had written out job descriptions for the roles she had carried out. Timesheets only started in 2018 and the purpose of the timesheets was to assist them understand the amount of time that was needed for different tasks.
*348
It was the complainant’s evidence that there was national oversight of the various community budgets, and the expectation was that they should not have any losses. When the complainant joined the respondent, she did not pool personal assets. It was her understanding that it was not the norm to pool in Ireland. Tax arrangements in UK came into existence in 2000 as far as she is aware.
It was put to the complainant in cross-examination by Ms Tennyson BL for the respondent that her evidence had been that she and her family had applied in 1994 and that families do not enter into employment contracts. It was put to the complainant that she had been invited by another community, Duff Carraig, which had been set up by LTCWs and that there had been no contract or intentions to create a contract, nothing in writing, no arrangement in relation to salary other than that she was informed that the needs of her family would be met. The complainant confirmed that she knew it was a needs-met system that was being offered and that she had accepted. From 1994 to 2008 the budget had been organised by the communities. Duff Carraig community had asked her to set up a new community which they did in 2008 in Ballymoney. When they moved to Ballymoney they had their own flat at the top of the house where the residents lived. The management team in Ballymoney was the complainant, her husband, another co-worker and possibly one or two local employees.
The complainant in response to a question from Ms Tennyson BL confirmed that each community had their own payroll and employer number and between 2008 and 2012 they could employ social care supports. It was the complainant’s evidence that she had responsibility for admissions: she would make suggestions to the management group who if they approved them would then send them to the community who would ultimately decide. If the community did not agree it would go back to the management committee. It was put to the complainant that her evidence had been that Ms Finn the national safeguarding manager had been her line manager. However, Ms Finn only started with the organisation in 2015. The complainant stated that from 2013 HIQA had required some level of supervision and that in 2016 she got a specific line manager but prior to that different people had done her supervision. Ms Tennyson BL put it to the complainant that LTCWs could leave at any time of their own volition, that they were not required to give notice and that there were no repercussions, if they did walk out. The complainant did not accept that and submitted that you could not walk out without notice. If you were considering leaving you were expected to give notice at your annual appraisal where you would be asked what your plan for the next 12 months was. It was put to the complainant that in respect of the timetable that she had mentioned this timetable was organised by the community and was not rostered work as such. It was put to the complainant that each community negotiated locally with the HSE and that the money received went straight into the community and was used to meet the need of the community. The complainant accepted that and stated that after HIQA became involved in *349 2013, they had to employ more people in the communities. She also stated that governance issues arose in respect of some of the communities, issues also arose about the composition of the Board of Directors and at that point co-workers were taken off the board. The complainant accepted that in 2017 there were discussions about the viability of the model and that engagement around transition to a new model took place in 2018.
It was the complainant’s evidence that there was a transition group made up of the CEO, CFO and LTCWs. The complainant confirmed that she was aware that there was a possibility that the role of LTCWs could cease to exist. A transition document was circulated in September 2018 but there was no decision at that time in respect of who would be kept on or the criteria for same. It was put to the complainant that the budget process she had referenced in her evidence was not available to employees and that in fact the complainant had not done any work since April 2018 because she was on sick leave. It was the complainant’s evidence that this was not true she went on sick leave in August 2018 and there was plenty evidence of her being in work and available for work up to that point in time. The complainant confirmed that she had been invited to a meeting in November 2018, but she did not attend, her husband attended. It was her evidence she only received an email about that meeting the night before. It was put to the complainant that at a meeting with Ms Sheehan she had indicated that she did not see a future in Camphill because of ongoing conflict. It is the complainant’s evidence that she recalls making comment about the difficulties she was experiencing. The complainant accepted that there were huge changes. In respect of the meeting scheduled for 5 December 2018, there had been confusion over the date and the meeting of 11 December 2018 she only got notification the night before and already had a previous commitment. At the meeting on 17 December 2018, she was accompanied by a friend, she raised issues in relating to her finances and to the fact that her picture had been removed. The complainant confirmed that at that meeting she was informed that she was not being offered a job and that they had some discussions in respect of a leaving package. The figure €39,500 was arrived at in the course of the meeting. The settlement deed was emailed to her on 17 December 2018. There were further negotiations which resulted in an outcome that was not approved by the Board. The complainant stated that in April 2019 she was given an opportunity to reconsider the offer of €39,500 but she declined that offer.
In response to a question from the court the complainant stated that she could not decide not to do any duties on a given day. If she was taking holidays, she had to provide cover and normally it would be provided by someone from one of the other communities.
Mr O’Sullivan BL opened the case of Moyne Veterinary Clinic v NowackiEDA 198 to the court in support of the complainant’s contention that she was an employee. It was his submission that the complainant like Ms Nowacki in *350 the above referenced case was a subordinate in the relationship and was very dependent on the respondent. The complainant derived her accommodation, and all means to meet all her needs from the respondent. Mr O’Sullivan also drew the court’s attention to the decision in Barry v Minister for Agriculture[2008] IEHC 216 and referenced the requirement for mutuality of obligation and the reference in that case to the fact that mutuality must be shown to exist as without it there cannot be a contract of service. It was Mr O’Sullivan’s submission that the complainant had given a 24/7 commitment to the respondent, she was obliged in order to have her needs met as set out above to provide her labour and to carry out the required tasks in respect of the respondent’s clients. The complainant in advance of taking her holidays had to get them approved by the community and had to provide cover for when she was gone. The complainant had a list of tasks that she had to carry out in respect of the residents and the service users. In respect of the obligation on the employer to provide work to the employee, the respondent through its servants and agents entered into service level agreement with the HSE to provide residential and other services. The arrangement entered into at the commencement of the relationship was that the respondent had residents in their communities that required care and that, in return for providing care to the residents in the community she was living in, the complainant’s needs as set out above would be met. It was Mr O’Sullivan BL’s submission that this was the mutuality of obligation and it continued until 31 December 2018. Mr O’Sullivan BL submitted that this case differs from the Barry case referenced above and the case of McKayed v Forbidden city t/a Translation.ie[2016] IEHC 722 as the complainant was not on a panel whereby, she may be offered work. In this case the service being provided is a 24/7 service and the work arose from the nature of the service. In the case of Preston v President of the Methodist Conference[2013] 4 All E.R. 477 the UK Supreme Court noted that the complainant had a vocation in that case and had entered into a Deed of Union and standing orders whereby she committed to submit herself to the discipline of church life. The court found that therefore the complainant was not an employee. Mr O’Sullivan submitted that the Methodist Church case facts are peculiar to itself and irrelevant to the case to hand.
Mr O’Sullivan BL submitted that contracts can be expressed or implied, oral or in writing and the fact that there was no written contract does not mean that a contract does not exist., The evidence before the court is that the complainant is fully integrated into Camphill Communities and submitted that the position she went into evolved over time particularly post 2012, with changes to operational responsibilities. It was his submission that even if it wasn’t an employment contract at the beginning it evolved into an employment contact over time. It was his submission that the contract was either implied or oral but most likely implied. It is generally accepted that legislation is there for the protection of the worker because of the imbalance of power. In this case the imbalance was *351 marked by the fact that her home was provided through the organisation and all her needs were to be met by the respondent, which made her vulnerable and dependent on the respondent.
Summary of respondent’s submission and evidence
Ms Tennyson BL submitted on behalf of the respondent that the complainant is not an employee. Ms Tennyson BL set out for the court the background to Camphill Communities and their operating model. It was her submission that LTCWs are not viewed or treated as employees. It is a way of life that they chose as a desirable alternative to employment, and it is not for everyone. This model is distinct from the employment model in that LTCWs share the house with the clients and are there 24/7. In this case the complainant had a self-contained apartment within the house where the residents lived.
It was submitted that there were a number of reasons for transitioning out of the LTCW model in Ireland even though it continues to operate in the UK. In 2013 HIQA brought in a suite of regulations which required that a number of formal procedures be put in place by providers such as Camphill who were providing care services. One such procedure was to have a trust in care policy. This policy applied to employees and volunteers. These procedures were obligatory under HIQA regulations. Ms Tennyson BL directed the court to a study on volunteering which was in the appendices to her submission and submitted that LTCW were volunteering in that they undertook the work of their own free will on a voluntary basis without payment.
Ms Tennyson BL submitted that the complainant was not an employee and therefore does not have locus standi to take a case under the Act and that it is clear from the Barry case that mutuality of obligation must exist. It is Ms Tennyson’s submission that no mutuality of obligation existed in this relationship. The LTCW model continues to exist in the UK and the Inland Revenue there does not consider them employees. While the respondent has engaged with Revenue in Ireland in relation to their status, to date no agreement has been reached. It is Ms Tennyson BL’s submission that this model of working is not covered by employment law. A fundamental element of a contractual relationship is the intention to create legal relationships, this did not exist in this relationship. The respondent further submitted that even if the court were to find that the complainant was an employee her complaint is out of time as the relationship ended on 15 October 2018 when she moved out of the community house. In the alternative Ms Tennyson BL submitted that the decision by the respondent to change the operating model and the fact that the other model is no longer in existence meets the requirement of other substantial grounds as set out in the act and therefore it was not an unfair dismissal.
Mr Paul Henry, special project lead with the respondent, gave evidence. It was his evidence that he started as an employee of the respondent in January *352 2016 but prior to that he had a paid role as a farm manager in day services in a community in Monaghan. Mr Henry set out his understanding of the background to and operating of Camphill communities. It was his evidence that Camphill communities set up its first Irish community in Duff Carraig in 1972. The community have LTCWs and short-term co-workers. It was Mr Henry’s evidence that to the best of his recollection the first paid employee was in Duff Carraig in 1992. The funding the respondent received would have come from the HSE or its predecessor. This funding was used to cover the housing and expenses of the LTCW’s as well as the needs of the residents. LTCWs were people, who had made a long-term commitment. If a LTCW went on holidays or was absent the community would make arrangements for cover. Generally, the core group within the community would make the decisions. Each community would organise the priorities within the community and there would be a management structure in place that would decide who would do what on any particular day. It was Mr Henry’s evidence that a LTCW gave a life commitment. A short-term co-worker gave a commitment of one to three years. It was his evidence from about 2016 onwards they had to take on more employees as it was getting harder to get people to come in as LTCWs and make a long-term commitment. It is Mr Henry’s evidence that originally, he was a part-time regional manager but from about December 2017 he was carrying out the role full time. It is his understanding that at that time Camphill was being funded as a national entity. The Camphill Board of Directors realised that in order to meet the regulations each community would have to have a PIC and they set about putting that structure in place. They also created regional roles to provide support to the communities. In was Mr Henry’s evidence that in his regional role he would have visited Ballymoney community where the complainant was based. At the time he visited the management group consisted of the complainant, her husband and three LTCWs. In respect of supervision each staff member had regular supervision, it is a requirement for anybody who is employed or engaged in providing care to residents in this sector to have supervision. The trust in care policies apply to everyone. The respondent had grievance and disciplinary procedures for employees and then a separate policy for volunteers and LTCWs. In respect of the difference between timetables and rosters it was his evidence that timetables are built around the people they support and the supports they need. Rosters show who is on duty. Mr Henry did not accept that there were job descriptions it was his evidence that there was no requirement for the complainant to develop a job description for LTCWs. In September 2018 in terms of the transition they did look at the purpose behind the various roles and what tasks were being carried out. It was Mr Henry’s evidence that he had worked in management type roles for 25 years and had a lot of experience. It was his evidence in the respondent’s operation national governance was a challenge that they were trying to get to grips with.
In response to a question in cross-examination from Mr O’Sullivan BL, Mr *353 Henry confirmed that the complainant had expressed a willingness to embrace the change that was happening. He confirmed that he had seen timetables for July 2017 and that the timetables would indicate that LTCWs were doing the work. Mr Henry stated that it was his understanding that the HSE and or its predecessor provided money under a service agreement for Camphill to provide a suite of services. Mr Henry confirmed that employees reported to LTCWs and that LTCWs managed employees. Mr Henry accepted that some of the titles and job description carried out by LTCWs such as house co-ordinator existed after the transition. It was put to Mr Henry that the reason given to the complainant for her dismissal was financial difficulties but in fact more people were employed after the transition. Mr Henry accepted that more people were employed during and after the transition. It was his evidence that he was not involved in the decision not to offer the complainant a contract. Mr Henry accepted that there was a cross-over between the work of employees and LTCWs. It was his evidence that the main difference between a paid employee and a LTCW is that an employee gets a wage for doing the work whereas the LTCW gets their needs met. It was put to Mr Henry by Mr O’Sullivan BL that LTCWs were provided with things that you would normally buy with money. Mr Henry accepted that. Mr Henry also accepted that a person could have a vocation and still be paid a wage. Mr Henry was asked if LTCWs could disappear for a few weeks. It was his evidence that LTCWs cannot make the decision not to do the work on any given day, there would need to be a genuine reason and they would have to arrange cover. It was Mr Henry’s evidence that if they did not provide cover there could be consequences.
The next witness for the respondent was Ms Anne Sheehan CEO. Ms Sheehan informed the court that she became CEO in 2018: prior to that she had worked for the HSE in the disability sector. It was Ms Sheehan’s evidence that she was familiar with the model before she joined the respondent in September 2018.
Ms Sheehan stated that she could see difficulties in respect of the provision of care in a voluntary LTCW model. From her perspective when she joined the respondent there were significant financial and governance issues in terms of poor financial and governance oversight by the Board of Directors. The decision to end the LTCW model was made by the Board of Directors before she commenced working for the respondent. It was Ms Sheehan’s evidence that the transition group comprised of two Board Members, the CEO, the HR manager and three LTCWs one of whom moved into an employee role. A process was put in place to allow for the transition out of a life-sharing post into an employee post and a number of staff transitioned in this way.
While it predated her employment with the respondent it was Ms Sheehan’s understanding that significant issues about lack of control over the communities, over-spending by the communities, along with the fact that the HSE who paid per resident were looking for a centralised location for making the payments in *354 the interest of good governance all fed into the decision to change the model. It was Ms Sheehan’s evidence that the Board of Directors started the process of reform in 2017-18.
It was Ms Sheehan’s evidence that her first formal engagement with the complainant was on 26 October 2018 when she attended a meeting with the complainant and her husband in relation to their financial support. At that stage they had moved out of the community housing ahead of the transition process. The Board of Directors had at that stage decided to remove the individual credit cards. The discussions were in respect of the quantum of financial support and how it could be provided for them in circumstances where the credit cards had been withdrawn. It was Ms Sheehan’s evidence that at that meeting the complainant mentioned difficult and fractured relationships and that she did not see a future in Ballymoney. In respect of the meeting in November the email set out that there were two issues to be discussed: (1) community issues, and (2) transitional arrangements. The complainant did not attend the meeting around her transitional needs. The next meeting was a separate meeting with the complainant’s husband where they came to an arrangement with him.
It is Ms Sheehan’s evidence that she does not accept that the complainant did not know about the meeting on 5 December 2018. A further meeting was arranged for 11 December 2018 and the complainant was not available for that either. A meeting was held on 17 December which the complainant attended, where she was advised at that stage that she was not being offered a contract. At that stage the respondent was still reviewing the transitional costs, a settlement figure was agreed at the meeting and the complainant was given time to review same with her solicitor. Even though the complainant turned down the offer it was made available to her again in April 2019, but she still declined same.
It was Ms Sheehan’s evidence that anyone who was offered the opportunity to stay on was given a contract of employment. It was Ms Sheehan’s evidence that out of about 35 co-workers, 26 transferred on to employment contracts. In respect of the status of LTCWs from a Revenue perspective they still have no decision from Revenue but have been making provision in their budgets for the possibility that Revenue might seek PAYE and PRSI payments in respect of LTCWs. It was Ms Sheehan’s submission that England still have LTCWs, and the Inland Revenue do not classify them as employees.
In cross-examination by Mr O’Sullivan BL, Ms Sheehan confirmed that it was her belief that there had been no significant change until she took up her position in in September 2018. Ms Sheehan accepted that there had been some national posts in place prior to that but it was her evidence that there were still significant issues.
In respect of the December meeting, it was Ms Sheehan’s evidence that the decision not to offer the complainant a contract was made by herself as CEO, the CFO and the COO. It was her evidence that she could not remember when *355 they made the decision but that the complainant was deemed not suitable for the posts available. It was Ms Sheehan’s evidence that she did not have any confidence in the complainant and that this was based on what she had been told by one of her colleagues. Ms Sheehan accepted that as she herself was only new to the organisation at the time she did not have any reason not to have confidence in the complainant and that she had not investigated the issues that her colleague had told her about or sought a second opinion in respect of them. Ms Sheehan accepted in cross-examination that the complainant’s relationship with the respondent formally ended on 31 December 2018, and she was no longer supported by the organisation after that date.
Ms Tennyson BL on behalf of the respondent submitted that the complainant did not deem herself to be an employee when she joined the respondent in 1994. In the High Court case of Barry, it is clearly set out that mutuality of obligation must be established. While it is accepted that the factual scenario in this case is different than in the Barry case mutuality of obligation must still be present. In this case there is no obligation on Camphill to provide work. The community spotted a need and off their own initiative set up Ballymoney. HSE funds were used to develop the community. The relationship between the respondent and the complainant does not fall within the scope of an employment relationship. The EAT in previous cases has held that relationship might have some features that are indicative but if there is no mutuality between the parties the court has to go no further.
The McKayed case again stress mutuality of obligation. Ms Tennyson BL submitted that mutuality of obligation cannot exist in the nature of this relationship because of the nature of the work. Other considerations that the court can take account of are that the operations in the UK are not deemed to be employees in respect of their tax status. They are considered because of the unique set up not to be employees. Ms Tennyson BL informed the court that another LTCW had sought a decision in respect of their status from a social welfare deciding officer who found that they were not in insurable employment because of the unique circumstances of the relationship. That decision is under appeal. Ms Tennyson BL submitted that the relationship was not covered by employment legislation. The Moyne Veterinary case was under the Employment Equality Act which was more extensive legislation. In the case to hand the parties have not entered into a contract of employment. The English Supreme Court 2013 in the Methodist case states there must be intention to create legal relations. In the case before this court benefits were given in exchange for work the complainant entered into an arrangement as an alternative to being employed. Ms Tennyson BL submitted that employees have duties in their contract. In this case neither party’s intended to create legal relations. The court should look at the manner in which the complainant was engaged and issues like control and integration. Looking at the control test the complainant had significant autonomy. In respect *356 of the integration test the decisions were made collectively by the communities. Looking at the enterprise test there was no contract and no invoices. Ms Tennyson submitted that these factors all supported the respondent’s submission that the complainant was not an employee.
The law
The Unfair Dismissals Act 1977, as amended states, in relevant part, as follows:
“1. Definitions
(1) In this Act—
‘contract of employment’ means a contract of service or of apprenticeship, whether it is express or implied and (if it is express) whether it is oral or in writing;
‘employee’ means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment and, in relation to redress for a dismissal under this Act, includes, in the case of the death of the employee concerned at any time following the dismissal, his personal representative.”
Section 6 of the Unfair Dismissals Act 1977, as amended, states,
“6.—(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.
(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:
(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,
(b) the conduct of the employee,
(c) the redundancy of the employee, and
(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.”
The Civil Law (Miscellaneous) Act 2011 defines voluntary work and volunteer as follows: s.51A(1) “voluntary work” means any work or other activity that is carried out for any of the following purposes:
“(a) a charitable purpose within the meaning of the Charities Act 2009;
(b) without prejudice to the generality of paragraph (a), the purpose of providing assistance, advice or care in an emergency or so as to prevent an emergency; *357 ‘volunteer’ means a person who does voluntary work that is authorised by a volunteer organisation and does so without expectation of payment (other than reasonable reimbursement for expenses) or other reward;”
Issues for the court to consider
The first issue the court needs to consider is whether or not a contract existed between the parties. If the court determines that no contact existed, the matters will end there. If the court determines that a contract did exist, the court then needs to consider the nature of such a contract. If the court determines that the contract was a contract of employment, it then needs to consider if the complaint was received within the time-limits set out in the legislation. If the court concludes the complaint was received in time the court, then needs to consider if in the circumstances of this case the decision to dismiss was fair.
Discussion
Both parties agree that no written contact was entered into in September 1994 when the complainant joined the respondent. However, it is the complainant’s submission that a contract either oral or implied existed between the parties. The respondent does not accept that, and submits that the requisite elements of offer, acceptance, consideration and intention to create legal relations required to establish a contract do not exist. The court having reviewed the evidence in respect of how the complainant came to take up a position notes that after being initially turned down, the complainant was offered a position which she accepted, the agreed terms were that in return for her labour the complainant would be provided with accommodation and her needs would be met by the respondent. The court finds that offer and acceptance occurred and that consideration in the nature of income passed from the respondent to the complainant in return for her labour. In respect of the intention to create legal intentions neither party submitted that they had in September 1994 clearly stated either by words or actions that they did or not intend to create legal relations, therefore the court’s task is to ascertain their intentions. In Emo Oil Ltd v Sun Alliance and London Insurance Plc[2009] IESC 2 the Supreme Court noted with approval the views expressed by Laffoy J. in UPM Kymmene Corporation v BWG Ltd, unreported, High Court, Laffoy J., 11 June 1999 when she stated:
“The basic rules of construction which the court must apply in interpreting the documents which contain the parties’ agreements are not in dispute. The court’s task is to ascertain the intention of the parties and the intention must be ascertained from the language they have used considered in the light of the surrounding circumstances and the object of the contract. Moreover, in attempting to ascertain the presumed intention of the parties the court should adopt an objective, rather than subjective approach, and should consider what would have been the intention of reasonable persons in the positions of the parties”.
*358
In the case to hand there was no written contract. The court in line with Emo Oil has to take an objective view of the situation that prevailed and the actions of the parties. The uncontested evidence of the complainant is that she entered into an arrangement with the respondent whereby she would provide her labour on a 24/7 basis in return for the respondent providing her with a place to live and meeting her needs. Both parties at the hearing accepted this would include holidays, travel, accommodation, food, clothing, education, medical expenses and shared access to a car as required. As set out below, the respondent accepts that for Revenue purposes at least that these benefits constitute taxable income. In those circumstances it is difficult to see how the intention to create legal relations did not exist. The court having considered the Emo Oil case which the parties were afforded an opportunity to comment on, and the conduct of the parties set out above, finds that the actions of the parties demonstrate an intention to create legal relations. On that basis the court finds there was a contractual arrangement between the parties.
The next issue for the court to consider is the nature of the contract. The respondent submits that the complainant was doing voluntary work and therefore not covered by employment law. While the complainant could be described as doing voluntary work as in, she worked for a charitable organisation, the question for the court is, was she a volunteer. The court notes that the Civil Law (Miscellaneous) Act 2011 defines volunteer as follows:
“‘volunteer’ means a person who does voluntary work that is authorised by a volunteer organisation and does so without expectation of payment (other than reasonable reimbursement for expenses) or other reward;”
While the complainant was not in receipt of what would normally be considered a salary or a wage. she did receive more than reimbursement for expenses. As set out above the arrangement was that she would receive holidays, travel, accommodation, food, clothing, education, medical expenses and shared access to a car as required. Therefore, the court finds that she was not a volunteer as defined by the Civil Law (Miscellaneous) Act 2011.
The respondent submitted that as the complainant did not receive a wage, she could not be considered to be an employee. The Payment of Wages Act 1991 defines wages in s.1 of the Act as follows:
“1. Interpretation
(1) In this Act—
‘wages’, in relation to an employee, means any sums payable to the employee by the employer in connection with his employment, including—
(a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise, and
*359
(b) any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice:
Provided however that the following payments shall not be regarded as wages for the purposes of this definition:
(i) any payment in respect of expenses incurred by the employee in carrying out his employment,
(ii) any payment by way of a pension, allowance or gratuity in connection with the death, or the retirement or resignation from his employment, of the employee or as compensation for loss of office,
(iii) any payment referable to the employee’s redundancy,
(iv) any payment to the employee otherwise than in his capacity as an employee, (v) any payment in kind or benefit in kind.”
The Unfair Dismissals Act 1977, as amended states at s.7(3):
“In this section—
‘financial loss’, in relation to the dismissal of an employee, includes any actual loss and any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts 1967 to [2014], or in relation to superannuation;
‘remuneration’ includes allowances in the nature of pay and benefits in lieu of or in addition to pay.”
Noting the definitions set out above and noting that the respondents as set out below accept that the benefits the complainant received from the respondent do constitute taxable income, it is clear to the court that benefits of the nature of the ones received by the complainant fall within the definition of wages under the Payment of Wages Act 1991 and the definition of remuneration in the Unfair Dismissals Act. The respondent drew the court’s attention to discussions it had with the Revenue Commissioners and an agreement it had reached with the Inland Revenue in the United Kingdom that LTCWs would not be treated as employees for tax purposes. The court notes that, the extract from the Inland Revenue that the respondent provided indicate that from an Inland Revenue perspective, the substantial benefits that LTCWs receive would be subject to tax in other parts of the economy. The extract also indicates the manner in which the income of the LTCW should be calculated. The correspondence before the court in respect of the respondent’s engagements with the Revenue Commissioners starts with a letter dated 25 July 2012 from an Officer of the Revenue Commissioners which appears to indicate that the Revenue Commissioners could see no basis not to treat the LTCWs as PAYE workers. There then follows a detailed letter from the respondent setting out their perspective and indicating that there is no suggestion *360 that LTCWs are not liable for tax, the respondent’s position being that the liability arises under Sch.D of the Taxes Consolidation Act 1997 and not Sch.E. The court understands that at the time of the hearing of this case before the Labour Court this issue still remained unresolved. It seems to the court that arising from the engagements with both the Inland Revenue and the Revenue Commissioners that the respondent is not disputing that the benefits that the LTCW received from it constituted an income that was taxable in nature. This suggests to the court that it is accepted that the complainant received an income from the respondent.
Having satisfied itself that there was a contractual relationship between the parties and that the complainant was in receipt of an income from the respondent, the court went on to consider if the contract was a contract of employment.
In considering what the nature of the contractual arrangement was the court notes that both parties agree that mutuality of obligation must exist for there to have been a contract of employment and even if it does exist mutuality of obligation on its own will not be sufficient to establish an employment contract. In Barry v Minister for Agriculture the court at para.47 states:
“The requirement of mutuality of obligation is the requirement that there must be mutual obligations on the employer to provide work for the employee and on the employee to perform work for the employer.”
the court goes on to say:
“where one party to a work relationship contends that that relationship amounts to a contract of service, it is appropriate that the court or tribunal seized of the issue should in the first instance examine the relationship in question to determine if mutuality of obligation is a feature of it”.
While in the case to hand the relationship had some unusual elements, such as being remunerated through a needs-met system, and the needs-met system extending to the family and not just the LTCW, that in and off itself cannot in the court’s view be sufficient to say there is not mutuality of obligation as contested for by the respondent. The service provided by the respondent was to provide residential and day care services for people with disabilities. The service differed to the services provided in the Barry and McKayed cases in that the service requirements were in the main regular and predictable carried out at the same location week in week out. The contract entered into was that the complainant would do the work that was required to be done in return for her accommodation and needs met. In order for the complainant to get her needs met (which the respondent had undertaken to do) the respondent had to provide the complainant with work. In the nature of this case once the mutuality of obligation was established at the commencement of the contract it continued *361 without break or interference. The respondent in their submission submitted that the complainant could have moved into the accommodation and had her needs met without giving of her labour. However, this was contradicted by the evidence of Mr Henry that an LTCW cannot make the decision not to go to work on any given day and that if they did there would be consequences. The court notes that Mr Henry also stated in his evidence that the LTCW were interchangeable with paid employees and that the main difference between LCTWs and paid employees was that employees got a wage. It was not put to the court that the respondent did not accept that in respect of paid employees there was not a mutuality of obligation. If in line with Mr Henry’s evidence the only difference in terms of the roles that they carried out was the nature of the payment the received, the court struggles to see how mutuality of obligation existed for the group that got paid a wage but did not exist for the group that got paid in kind. The court having studied the case law opened to it by the parties, carefully read the submissions and listened to the evidence of the witnesses finds that having examined the relationship between the respondent and the complainant that there was a mutuality of obligation.
Having determined that there was a mutuality of obligation the court went on to look at other elements of the relationship. In respect of what is generally referred to as the integration test it is the complainant’s submission that she was fully integrated into the respondent’s organisation. It is the respondent’s submission that while the complainant was integrated into the Ballymoney community she was not an integral part or integrated into Camphill Communities. The court notes the uncontested evidence of the complainant that she served for a time on the Board of Directors of Camphill and reported at various times to employees of Camphill at national or regional level. The complainant’s evidence in terms of reporting to employees of Camphill is supported by the evidence of Mr O’Shea who confirmed that he held a regional position with the respondent, and, in that capacity, he had visited the community where the complainant was based. The respondent submitted that the complainant was self-directed and not under their control and that if any control existed this was exercised by the community within which the complainant lived and operated. The complainant submitted that she was subordinate to the Board of Directors, she had to attend regular supervision, was subject to the respondent’s policies and procedures and the respondent approved or amended her applications for finance. It was the complainant’s submission that when she wanted to take leave the cover had to be approved by the community. The complainant was not in a position to move someone into her apartment and have them cover her duties unless they had been approved by the community. Mr Henry on behalf of the respondent in his evidence accepted that any cover for leave that the complainant sought to put in place had to be approved by the community.
The court having considered the different elements set out above and the *362 relevant case law opened to the court by the parties finds that the requisite elements of mutuality of obligation, integration and control existed to establish a contract of employment. While the respondent touched on the enterprise test the court finds that there was no evidence before it to demonstrate that the complainant was in business for herself or could profit by managing the work more efficiently.
Having concluded that the complainant was an employee the next issue for the court to consider is the time-limits issue raised by the respondent. The CEO Ms Sheehan in her evidence to the court confirmed that the complainant finished with the respondent on 31 December 2018 and received remuneration up to that date. On that basis the court finds that the complaint is on time.
The complainant has established that a dismissal did take place in that her employment was terminated on 31 December 2018. It is for the respondent to establish that in all the circumstances of this case the dismissal was fair. The respondent submits that there were substantial grounds justifying the dismissal as provided for under the section 6 of the Act citing the substantial transformation to a new model of work. The respondent in their evidence accepted that a large number of LTCWs were transitioned to the role of paid employee and that additional staff were recruited during and after the transitional period. In those circumstances it is not clear to the court why the complainant could not have transitioned to the role of paid employee. The evidence before the court was that the complainant had clearly indicated that was her preferred option. The complainant in her evidence submitted that she was never given an explanation as to why other staff were allowed to transition and she was not. This was confirmed by Ms Sheehan in her evidence where she confirmed that she was one of three people involved in the decision not to offer the complainant a contract going forward. Ms Sheehan did not dispute that the complainant was informed of that decision without explanation as to why. It was Ms Sheehan’s evidence that the reason the complainant was not offered a contract going forward was because of trust issues. It was her evidence that she and one of the other people involved in making the decision not to offer the complainant a post were new to the organisation but were informed of the trust issue by the third member of the group. Ms Sheehan who was the CEO at the time, accepted in her evidence that she had no trust issue with the complainant and that she had not investigated the issue raised by the third party or given the complainant an opportunity to address these alleged issues. Ms Sheehan also confirmed that there was no appeal available in respect of that decision.
The court having considered the submissions of the parties and the oral evidence given determines that terminating the complainant’s employment based on unsubstantiated allegations from a third party involved in the decision to terminate comes nowhere near the standard required to establish that the complainant was afforded fair procedure. S.I. No. 146 of 2000 Code of Practice *363 on Grievance and Disciplinary Procedures at para.4.6 states:
“The procedures for dealing with such issues reflecting the varying circumstances of enterprises/organisations, must comply with the general principles of natural justice and fair procedures which include:
• That employee grievances are fairly examined and processed;
• That details of any allegations or complaints are put to the employee concerned;
• That the employee concerned is given the opportunity to respond fully to any such allegations or complaints;
• That the employee concerned is given the opportunity to avail of the right to be represented during the procedure;
• That the employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors or circumstances.”
While the complainant in this case was accompanied by a friend the allegations of mistrust and the basis for same were not put to her and she was not afforded an opportunity to respond to those allegations. On that basis the court determines that the complainant was not afforded fair procedures or an opportunity to defend herself therefore the dismissal was unfair. The court having heard the parties on the three forms of redress available under the Act considers that compensation is the appropriate form of redress in this case. The court notes that the complainant has made efforts to mitigate her loss and has obtained some part-time employment. The nature of the remuneration in this case presents some difficulties in determining the quantum of compensation. The court based on the submissions it received in respect of the calculation of earnings for 2018 put forward by the complainant, which was not contested in the course of hearing, and taking account of her attempts to mitigate her loss and her earnings to the date of the hearing, determines that the compensation of €60,640 is the appropriate amount in the circumstances of this case.
Determination
The court determines that the dismissal was unfair and that compensation of €60,640 is to be paid to the complainant.
The decision of the adjudication officer is varied accordingly.
The court so determines.
O’Donovan v Over-C Technology Ltd & ANOR
(Approved) [2020] IEHC 291 (12 June 2020)
JUDGMENT of Mr Justice David Keane delivered on the 12th June 2020
Introduction
1. This is an employment injunction application, brought against the background of an action for wrongful dismissal challenging both the decision made on 7 January 2020 by the first defendant/respondent, Over-C Technology Limited (‘Over-C Technology’), to terminate the employment of the plaintiff/applicant, Donal O’Donovan, and its subsequent confirmation of that decision on 17 January, when it deemed Mr O’Donovan’s appeal against dismissal to have been withdrawn. The second defendant/respondent, Over-C Limited (‘Over-C’), an English-registered company, is the parent of Over-C Technology. Thus, collectively, Over-C Technology and Over-C are the defendants.
Procedural history
2. On 29 January, Mr O’Donovan issued proceedings. A memorandum of appearance was entered on behalf of each of the defendants on 5 and 6 February, respectively. On 18 February, Mr O’Donovan delivered a statement of claim in which he seeks, among other reliefs: declarations that his dismissal was unlawful and, hence, invalid and that he remains employed by the defendants; permanent injunctions requiring the defendants to acknowledge and maintain the position as such; and damages against the defendants for breach of contract, breach of duty, and breach of his constitutional right to fair procedures.
3. On 31 January, Mr O’Donovan sought, and was granted, leave ex parte to effect short service of the present motion. He filed and issued a notice of motion on 31 January, initially returnable to 6 February on the direction of Reynolds J. The principal interlocutory reliefs that Mr O’Donovan seeks are injunctions pending trial in terms of the permanent injunctions that he claims as substantive relief. The application is grounded on an affidavit sworn by Mr O’Donovan on 30 January. Michael Elliot, the chief executive officer (‘CEO’) of each of the defendants, swore an affidavit in reply on 14 February, supplemented by a short affidavit of John Boylan, a partner in the firm of solicitors representing the defendants, sworn on the same date. Mr O’Donovan swore a second affidavit on 18 February, as did Mr Elliot one week later. Still further affidavits sworn by Mr O’Donovan on 26 February and Mr Elliot on 10 March were later exchanged. Finally, Liam Wade, the general manager and company secretary of Over-C Technology, swore a short affidavit on its behalf on 25 May that I gave the defendants leave to file in court. I have considered the contents of each of those affidavits.
4. The defendants gave an undertaking to the court (O’Connor J) on 6 February that they would not appoint another person to the role of CFO pending the determination of the present application.
5. The application was argued before me on 25 May. The defendants had not yet delivered a formal defence.
Background
6. Mr O’Donovan is a chartered management accountant. By letter dated 30 May 2019 (‘the employment offer letter’), Mr Elliot offered him the position of chief financial officer (‘CFO’) of ‘our Irish company Over-C Technology and Over-C Ltd in the UK’.
7. On 31 May 2019, Mr O’Donovan signed a contract with Over-C Technology, headed ‘Statement of Main Terms of Employment’ (‘the contract’), which recites that it forms part, and sets out the main terms, of his ‘Contract of Employment’. The contract states that Mr O’Donovan’s employment with Over-C Technology as CFO was to begin on 22 July 2019, and that the CEO was to be his line manager.
8. Among the other express terms of the contract, are the following:
‘PROBATIONARY PERIOD
An initial probationary period of six months applies to this position. During this period your work performance will be assessed and, if it is satisfactory, your employment will continue. However, if your performance is not up to the required standard, we may either take remedial action or terminate your employment.
…
TERMINATION TO BE GIVEN BY EMPLOYER: One month in the first year, [t]hree months thereafter.
…
DISCIPLINARY RULES AND PROCEDURES
The disciplinary rules and procedures that apply to your employment are shown in the Employee Handbook to which you should refer.
DISCIPLINARY APPEAL PROCEDURE
The disciplinary rules and procedures which form part of the Contract of Employment incorporate the right to lodge an appeal in respect of any disciplinary action taken against you. If you wish to exercise this right, you should apply either verbally or in writing to the General Manager or the CEO within five working days of the decision you are complaining against.’
9. Mr O’Donovan has exhibited the Employee Handbook that was furnished to him in conjunction with the contract. It contains little in the way of disciplinary rules and nothing on disciplinary procedures.
10. Mr O’Donovan began work as CFO of Over-C Technology in Cork on 6 August 2019. Between 13 December 2019 and 6 January 2020, he was on annual leave.
11. Upon his return from leave on 7 January, Mr O’Donovan was called to a meeting with the CEO, Mr Elliot. At that meeting, Mr Elliot informed Mr O’Donovan, that his employment with Over-C Technology was terminated with immediate effect and that he was to receive one month’s pay in lieu of notice.
12. As CEO of Over-C Technology, Mr Elliot later wrote to Mr O’Donovan, confirming that decision. The letter (for ease of reference, ‘the letter of termination’) is dated 8 January, though Mr O’Donovan contends that post office records show it was sent by registered post on Friday, 10 January, and delivered on Monday, 13 January. The letter states that Mr O’Donovan’s performance in the role of CFO was sub-standard and had been identified to him as such by Over-C Technology board members at earlier meetings. In particular, it alleges that Mr O’Donovan had: (a) provided an inflated and, hence, misleading projected sales figure at a board meeting on 2 December 2019; (b) failed to prepare adequately for a board meeting on 19 December 2019; and (c) failed to answer a question from the board about the company’s ‘basic cash position.’ The letter concludes by confirming that Mr O’Donovan’s employment with Over-C Technology had been terminated the day before with immediate effect in line with the terms of his contract of employment and within his probationary period and that he would receive one month’s pay in lieu of notice.
13. Meanwhile, on the afternoon of 8 January, Mr O’Donovan emailed Mr Elliot, asserting that, under his contract of employment, he had an entitlement to appeal the decision to terminate his employment. Just over two hours later, Mr Elliot emailed in reply:
‘You are correct that there is an [a]ppeal process. A member of our [b]oard of [d]irectors will hear your [a]ppeal and this will be arranged shortly. You will be contacted next week to agree a date and location for this meeting.’
14. On 14 January, Eileen Moloney, a director of Over-C Technology, wrote to Mr O’Donovan in the following terms:
‘I’m in receipt of your mail of 8th Jan in which you wish to appeal against the decision to dismiss you on 7th January. This was confirmed in writing to you in the letter dated 8th January (attached).
I write to confirm that I will hear your appeal, the hearing details are as follows:
Date: Fri 17th January
Time: 14.30 hours
Venue: Over-C Boardroom, 12 South Mall [Cork]
The hearing will be conducted by way of a review of the original decision. The appeal hearing will be chaired by me in the presence of a Company witness, who will take notes.
You may wish to be accompanied at the appeal. If you wish to be accompanied, please contact me on the number below, by Thursday 16th at 17.00 hrs to advise me of the name of the person, so that any necessary arrangements can be made.
The decision of this appeal hearing is final and there is no further right of review. If you have any queries concerning the content of this letter please contact me.’
15. Mr O’Donovan received that letter via an email sent to him by Ms Moloney at 6.23 p.m. on 14 January. He replied by email on 16 January, opening by stating that the time fixed for the proposed appeal hearing was not convenient for him or his legal representative, then raising a number of procedural issues, before concluding with the assertion that Over-C Technology must address those issues ‘as quickly as possible as delay will allow matters to fester and worsen.’
16. Ms Moloney responded by letter, dated 17 January, stating in material part:
‘I note you do not now wish to proceed with the appeal today.
I now confirm your dismissal stands.’
17. On 24 January, Mr O’Donovan’s solicitors wrote a letter before action to each of the defendants, claiming that his dismissal ‘for misconduct’ was unlawful and had been effected in breach of his contract of employment. On behalf of Mr O’Donovan, they called upon the defendant to: (a) withdraw the allegations of ‘misconduct’ contained in Mr Elliot’s letter of 8 January; (b) make a full written apology to Mr O’Donovan; and (c) reinstate him as CFO, by close of business on 28 January 2020, failing which proceedings for wrongful dismissal would issue and injunctive relief would be sought.
18. The defendants’ solicitors responded by email on 30 January 2020, stating that: (a) Mr O’Donovan had received one month’s pay in lieu of notice and his employment would finish on 7 February 2020; (b) Mr O’Donovan’s employment had been terminated during his initial six-month probationary period for reasons clearly set out by Mr Elliot; and (c) Mr O’Donovan’s claims were without foundation and would be vigorously defended.
19. Here, it is convenient to consider briefly two issues that the defendants have raised on affidavit.
20. First, their solicitor Mr Boylan has averred that the statement in that email that Mr O’Donovan’s employment would end on ‘7 February 2020’ was a typographical error and should have read ‘7 January 2020’ because that is the date upon which Mr Elliot informed Mr O’Donovan that his employment was terminated with immediate effect. It seems to me that whether Mr O’Donovan was summarily dismissed with immediate effect on 7 January 2020 or was given one month’s notice of dismissal on that date in accordance with the relevant term of his contract of employment (so that his employment finished on or about 7 February 2020), depends in significant part on the true interpretation of the letter of termination (‘your employment with Over-C Technology was terminated with immediate effect in line with the terms of your Contract of Employment within your stated [p]robationary [p]eriod’); see, for example, the decisions of the England and Wales (‘EW’) Court of Appeal in I. Brindle v H W Smith (Cabinets)[1972] IRLR 125 and R J Dedman v British Building and Engineering Appliances Ltd [1973] IRLR 379. While that may or may not be an issue at trial, I cannot see that it is material to the determination of the present application.
21. Second, Mr Elliot has averred that the effect of the term of Mr O’Donovan’s contract of employment stipulating a six-month probationary period was to create, in effect, a six-month fixed term contract, subject to extension or continuation only upon satisfactory performance. In so far as it is necessary to address that assertion for the purpose of the present application, there is a strong case to be made that Mr O’Donovan’s contract of employment was one of indefinite duration, subject to the entitlement of his employer to terminate his employment if his performance was ‘unsatisfactory’ or ‘not up to the required standard’ during his initial six-month probationary period; that is to say, a contract that would continue unless terminated on the ground of unsatisfactory performance, rather than one that would expire after six-months unless extended on the ground of satisfactory performance, as Mr Elliot claims.
22. To conclude the chronology of events that are not in dispute, Mr O’Donovan did receive the payment of one month’s salary on 30 January, which was the day after the these proceedings issued and the day before the present motion did.
The case for an employment injunction
23. In these proceedings, Mr O’Donovan advances several different causes of action beyond breach of contract. There is a claim in misrepresentation, alleging that he was induced to enter the defendants’ employment in reliance upon statements that were untrue concerning both the size of the defendants’ revenue stream and client base and his eligibility as CFO to acquire equity in the business. And there is a claim in defamation, alleging that the dismissal letter of 8 January 2020 is defamatory in content and was published to third persons. Those claims, which are denied by Mr Elliot on behalf of the defendants, are of no relevance to the present application.
24. Also of no relevance, are Mr Elliot’s averments, on behalf of the defendants, that Mr O’Donovan has acted in breach of their confidence – a claim that Mr O’Donovan denies. Mr Elliot deposes to having recently become aware of the unauthorised disclosure by Mr O’Donovan on 8 November and 4 December of certain of the defendants’ confidential commercial information to a third party, an identified business consultant. In response, Mr O’Donovan avers that, at all material times, his interactions on behalf of the defendants with that business consultant were known to, and authorised by, Mr Elliot, a claim that, in turn, Mr Elliot denies. Mr Elliot has since expanded on the defendants’ claims by suggesting that Mr O’Donovan had wrongly sent the defendants’ confidential information to his personal email account. Mr O’Donovan’s position is that he accessed his work email account on his home computer with the defendants’ express consent and that he has offered to make his computer available for inspection. According to Mr Elliot, Over-C Technology may issue separate proceedings against Mr O’Donovan for breach of contract or breach of confidence, or both.
25. The part of Mr O’Donovan’s case, as pleaded, that underpins the present application for injunctive relief is his claim that his dismissal was effected in breach of contract and in breach of his constitutional right to fair procedures, such that (in addition – or as an alternative – to damages) he is entitled to a declaration that he continues to be employed by the defendants as CFO or that his purported dismissal from that position is invalid, or both.
26. From his pleadings, it is clear that Mr O’Donovan rejects the assertion that his performance in the role of CFO was unsatisfactory or, differently put, that it was below the required standard. Further, he pleads that the defendants never informed him of any issue with, or concern about, the standard of his performance, prior to his meeting with Mr Elliot on 7 January 2020. Mr O’Donovan and, on behalf of the defendants, Mr Elliot have joined issue on those two propositions at length over three exchanges of affidavit. Indeed, Mr Elliot now avers to a number of alleged instances of unsatisfactory or sub-standard performance by Mr O’Donovan in the role of CFO in addition to those identified in the letter of termination, each of which Mr O’Donovan denies or rejects on oath.
27. Quite apart from any issue concerning his conduct or performance as CFO, Mr O’Donovan goes on to plead that the procedures used to effect his dismissal breached both the express and implied terms of his contract of employment. According to Mr O’Donovan, the express terms breached are those dealing with ‘disciplinary rules and procedures’ and ‘disciplinary appeal procedure’, set out earlier in this judgment. In addition, Mr O’Donovan contends that the defendants breached an implied term of that contract that those rules and procedures would be fair and in accordance with the requirements of natural and constitutional justice.
28. Mr O’Donovan’s central contentions are that the defendants breached those terms by: (a) effecting his dismissal before affording him an opportunity to appeal; (b) failing to provide him with adequate notice of the arrangements for the conduct of the appeal, once that entitlement was conceded after his dismissal; and (c) wrongly and unreasonably deeming his appeal to have been withdrawn when informed by him that the arrangements they had unilaterally made for it were not convenient. Through Mr Elliot’s averments, the defendants join issue with those claims, adopting the position (simply stated) that Mr O’Donovan: (a) was offered an appeal (albeit only upon requesting one after he was informed of his summary dismissal); (b) was given adequate notice of the arrangements they had made for the conduct of his appeal; and (c) did, in effect, withdraw that appeal by writing to inform them that those arrangements were not convenient for him but without proposing alternative ones.
29. Finally, in describing the issues between the parties, I do not overlook Mr Elliot’s averment on behalf of the defendants that, despite Mr O’Donovan’s express plea that he was employed by both defendants (as reflected in the terms of the employment offer letter signed by Mr Elliot), his contract of employment was with Over-C Technology alone (as reflected in the contract that Mr O’Donovan signed).
The test for an employment injunction
30. The proper approach to an application for an interlocutory injunction was recently restated in Merck Sharp & Dohme Corp v Clonmel Healthcare Ltd [2019] IESC 65 (Unreported, Supreme Court (O’Donnell J; Clarke CJ, McKechnie, Dunne and O’Malley JJ concurring), 31 July 2019) (‘Merck’).
31. The general principles remain those identified by Lord Diplock in American Cyanamid Co v Ethicon Ltd [1975] AC 396 (HL) (at 407-9) and approved by the Supreme Court in Campus Oil v Minister for Industry (No. 2) [1983] 1 IR 88 (O’Higgins CJ and Griffin J, Hederman J concurring) (‘the Campus Oil principles’).
32. At the risk of crude over-simplification, I consider those principles to be that the applicant must establish that: (1) there is a serious question to be tried on the applicant’s entitlement to a permanent injunction; (2) the balance of convenience favours the grant of interlocutory relief, which requires, but is not limited to, a consideration of whether damages would be an adequate and effective remedy for an applicant who fails to obtain interlocutory relief but later succeeds in the action at trial and, if not, whether the applicant’s undertaking to pay damages would be an adequate and effective remedy for a respondent against whom interlocutory injunctive relief is granted but whose defence to the action succeeds at trial. While Lord Diplock’s speech in American Cyanamid was ambiguous on whether the adequacy of damages was a consideration antecedent to, or part of, that of the balance of convenience, the judgment of O’Donnell J in Merck (at para. 35) has now clarified that it is preferable to consider adequacy of damages as part of the balance of convenience, thus emphasising the flexibility of the remedy.
33. Where a mandatory injunction is sought, such as where an applicant seeks an injunction restraining dismissal (which is, in substance, an injunction mandating the continuation of an employment relationship), the Campus Oil principles are subject to the significant refinement that an applicant must establish at least a strong case, likely to succeed at the hearing of the action, and not merely surmount the lower threshold of establishing a serious question to be tried; Maha Lingam v Health Service Executive [2005] IESC 89, [2006] 17 ELR 137 (per Fennelly J at 140). Mr O’Donovan accepts – correctly, in my view – that the strong case test is the one that he must meet in order to obtain the relief that he seeks in the present application.
34. In Merck, O’Donnell J pointed out that it would be an error to treat the Campus Oil principles as akin to statutory rules (at para. 34), before later outlining the steps that might usefully be followed in considering an interlocutory injunction application (at para. 64):
‘(1) First, the court should consider whether, if the plaintiff succeeded at the trial, a permanent injunction might be granted. If not, then it is extremely unlikely that an interlocutory injunction seeking the same relief upon ending the trial could be granted;
(2) The court should then consider if it has been established that there is a fair question to be tried, which may also involve a consideration of whether the case will probably go to trial. In many cases, the straightforward application of the American Cyanamid and Campus Oil approach will yield the correct outcome. However, the qualification of that approach should be kept in mind. Even then, if the claim is of a nature that could be tried, the court, in considering the balance of convenience or balance of justice, should do so with an awareness that cases may not go to trial, and that the presence or absence of an injunction may be a significant tactical benefit;
(3) If there is a fair issue to be tried (and it probably will be tried), the court should consider how best the matter should be arranged pending the trial, which involves a consideration of the balance of convenience and the balance of justice;
(4) The most important element in that balance is, in most cases, the question of adequacy of damages;
(5) In commercial cases where breach of contract is claimed, courts should be robustly sceptical of a claim that damages are not an adequate remedy;
(6) Nevertheless, difficulty in assessing damages may be a factor which can be taken account of and lead to the grant of an interlocutory injunction, particularly where the difficulty in calculation and assessment makes it more likely that any damages awarded will not be a precise and perfect remedy. In such cases, it may be just and convenient to grant an interlocutory injunction, even though damages are an available remedy at trial;
(7) While the adequacy of damages is the most important component of any assessment of the balance of convenience or balance of justice, a number of other factors may come into play and may properly be considered and weighed in the balance in considering how matters are to be held most fairly pending a trial, and recognising the possibility that there may be no trial;
(8) While a structured approach facilitates analysis and, if necessary, review, any application should be approached with a recognition of the essential flexibility of the remedy and the fundamental objective in seeking to minimise injustice, in circumstances where the legal rights of the parties have yet to be determined.’
35. Finally, in approaching the test I must apply to the evidence that I have attempted to summarise, I am conscious of Lord Diplock’s admonition in American Cyanamid (at 407):
‘It is no part of the court’s function at this stage of the litigation to try to resolve conflicts of evidence on affidavit as to facts on which the claims of either party may ultimately depend nor to decide difficult questions of law which call for detailed argument and mature considerations. These are matters to be dealt with at trial.’
A serious question to be tried?
36. In his statement of claim, Mr O’Donovan pleads that he was dismissed for misconduct. In particular, he pleads that, in asserting in the letter of termination that he had provided an inflated and, hence, misleading sales figure to the board, the defendants meant – and were dismissing him for the reason that – he had deliberately misled the board and, hence, was dishonest and untrustworthy. Further, Mr O’Donovan goes on to plead that this in turn by innuendo meant that he was in breach of the Code of Conduct of the Institute of Management Accountants. Thus, Mr O’Donovan makes the case that he was dismissed on grounds of alleged misconduct, without the benefit of the appropriate disciplinary procedures, including an appeal.
37. Through the averments of Mr Elliot, the defendants adamantly deny that Mr O’Donovan’s dismissal was based on any allegation of misconduct. They point to the express terms of the letter of termination, which makes no reference to misconduct and specifically states instead that Mr O’Donovan’s performance in his role was, variously, sub-standard and unacceptable and that his employment had been terminated in line with the terms of his contract, ‘within his stated probationary period’.
38. Remember, the ‘probationary period’ term in the contract signed by Mr O’Donovan required Over-C Technology to assess his performance within the initial six months of his employment and, if it was not up to the required standard, permitted Over-C Technology to either take remedial action or terminate his employment. In that context, Mr O’Donovan pleads that at no time during his employment was he ever informed of any issue with his performance nor was he afforded any, or any adequate, opportunity to address the alleged shortcomings identified by Mr Elliot at their meeting on 7 January and in the letter of termination.
39. Remember, also, that Mr O’Donovan emailed Mr Elliot on 8 January, stating ‘as per the contract there is an appeal process’, and Mr Elliot emailed in reply on 9 January, stating ‘[y]ou are correct that there is an [a]ppeal process.’ Mr Elliot has since averred, in the affidavit that he swore on behalf of the defendants on 25 February, that Mr O’Donovan had no contractual entitlement to an appeal but was offered one ‘as a matter of courtesy’. The circumstances in which the defendants came to deem Mr O’Donovan’s appeal to have been withdrawn have already been described.
40. Mr O’Donovan pleads that, what he describes as, the ‘disciplinary’ process established by the defendants was unfair and conducted in breach of both his entitlement to natural and constitutional justice and the implied contractual obligation of mutual trust, good faith and confidence between employer and employee.
41. On the basis of the evidence and arguments just described, I am not satisfied that Mr O’Donovan has established a strong case, likely to succeed at the trial of the action, that he was dismissed, wrongly and in breach of his entitlement to fair procedures, for ‘misconduct’. Having regard to the present state of the evidence and, in particular, the express terms of the letter of termination, it seems significantly more probable that the ground for his dismissal was that of poor performance during his probationary period.
42. The question that then arises is whether Mr O’Donovan’s dismissal on that ground was properly effected in accordance with the terms of his contract. On that issue, I conclude, on the current state of the evidence, that Mr O’Donovan has established a strong case, likely to succeed at trial, that it was not. As matters stand, there is nothing to suggest that either the instances of alleged sub-standard or unsatisfactory performance identified in the letter of termination or any of the various other instances of alleged poor performance since averred to by Mr Elliot were ever drawn to Mr O’Donovan’s attention as performance issues, either orally or in writing, prior to the meeting of 7 January at which he was summarily dismissed on that basis.
43. Of course, Mr O’Donovan’s case at trial will be stronger if he can persuade the court that the express terms of the contract dealing with ‘disciplinary rules and procedures’ and ‘disciplinary appeal procedure’ directly apply to allegations of sub-standard or unsatisfactory performance raised in the context of the ‘probationary period’ term of the contract. But, even if Mr O’Donovan cannot do so, there remains a strong case that, in the specific circumstances of his contractually required performance assessment, he was entitled to a level of procedural fairness that he did not receive, most obviously in the context of both a right to be heard and a right of appeal.
44. In referring to the specific circumstances of that assessment, I have in mind principally the following: first, that it was contractually mandated and capable of resulting in either remedial action by Over-C Technology or the termination of Mr O’Donovan’s employment if his performance was found not to have reached a required standard; second, the specific nature of Mr O’Donovan’s probation, whereby, as a qualified management accountant, he was directly appointed to a senior role, rather than – as is more frequently the case with probationary employment – required to successfully complete an initial course of training or instruction in the skills required for an entry-level position; third, the potential seriousness of an adverse performance assessment, reputationally and economically, for a qualified person engaged in a professional role; and fourth, the exchange of email correspondence on 8 and 9 January, whereby, in response to Mr O’Donovan’s assertion of a contractual entitlement to an appeal, Mr Elliot acknowledged there was an appeal process, without any qualification to the effect that it was being offered only as a courtesy and not as a contractual entitlement. In those circumstances, I judge that there is a strong case to be made that Mr O’Donovan was dismissed for sub-standard performance during his probationary period without being afforded his implied contractual right to be heard as part of that assessment or to appeal against an adverse assessment, or both.
45. The strength of Mr O’Donovan’s case in this regard derives from the defendants’ express reliance in the letter of termination on the allegation that his performance in the role of CFO was sub-standard and unacceptable and the express statement in that letter that his employment had been terminated in line with the terms of his contract, ‘within his stated probationary period’. Thus, while – on the present state of the evidence – it seems to me that the termination of Mr O’Donovan’s employment was not a ‘misconduct’ dismissal, nor was it merely a dismissal on notice.
46. As Ms Kimber SC for the defendants sought to emphasise and Ms Bolger SC for Mr O’Donovan candidly acknowledged, the traditional common law position is that a contract of employment can be terminated by an employer on reasonable notice whether for good or bad reason (or, indeed, no reason at all); see, for example, the judgment of Fennelly J in Maha Lingam (at 140). The contract in this case contains an express term that the notice of termination to be given by the employer shall be ‘[o]ne month in the first year.’ However, as Fennelly J went on to observe (at 141):
‘… [W]here a dismissal is by reason of an allegation of misconduct by the employee, the courts have in a number of cases at any rate imported an obligation to comply with the rules of natural justice and give fair notice and a fair opportunity to reply.’
47. In Carroll v Bus Atha Cliath/Dublin Bus [2005] 4 IR 184 (at 208), Clarke J explained that, while in general an employer may, if contractually free to do so, dismiss an employee for any reason or no reason at all, it is no less the case that, where an employer chooses to rely upon stated misconduct as the reason for dismissal, an obligation arises to conduct the process leading to that determination in accordance with the principles of natural justice.
48. Although, on the evidence before me, I am not persuaded that this is a misconduct dismissal case, nonetheless, depending upon the terms of the relevant contract, the same obligation may apply to a ‘poor performance’ dismissal, as Laffoy J made clear in Naujoks v Institute of Bioprocessing Research & Training Ltd [2006] IEHC 358, [2007] ELR 25.
49. The facts of the present case are different to those in Hughes v MongoDB Ltd [2014] IEHC 335, (Unreported, High Court (Keane J), 6 June 2014). The employer in that case gave did not give an adverse performance assessment as the reason for the employee’s dismissal but relied solely on its asserted contractual entitlement to dismiss on notice. The letter of termination went on to state that the employee would be provided with a standard reference. That is not the position here, where the reason given for dismissal was sub-standard or unsatisfactory performance during the probationary period; a claim that has since been amplified and expanded upon in the three affidavits that Mr Elliot has sworn on behalf of the defendants.
50. I have found that Mr O’Donovan has established a strong case that: (1) the stated reason for his dismissal was his sub-standard or unsatisfactory performance during his probationary period; (2) a fair procedures obligation in the conduct of the relevant performance assessment arises under the terms of his contract of employment; and (3) there was a breach of that obligation in this case.
51. In view of the interlocutory nature of the present application, it will suffice to say only that I am not persuaded that the analogy the defendants seek to draw between the ‘probationary period’ term of the contract now at issue and the statutory power to terminate the services of a civil servant working in a probationary capacity under s. 7 of the Civil Service Regulation Act 1956, as amended, is a valid one, sufficient to deprive Mr O’Donovan’s case of the strength necessary to obtain relief. That is to say, I am not persuaded of the force of the argument that an employer’s entitlement to dismiss a probationary employee, regardless of the specific terms of the contract between them, is the same as, or co-extensive with, that of the appropriate State authority to terminate the services of probationary civil servant under that Act as a matter of public law. Thus, I glean no assistance from a consideration of the line of authority relied upon by the defendants in that regard, culminating in the decision of the High Court (per Barron J) in The State (Daly) v Minister for Agriculture [1987] 1 IR 165.
52. For the same reason, I cannot see that the decision of the Supreme Court in Hickey v Eastern Health Board [1991] 1 IR 210 – holding that the rules of natural justice had no application to a decision to dismiss, by reason of redundancy rather than misconduct, a person who, by operation of the provisions of the Health Act 1970, was a temporary officer of the health board – is of any relevance to the present case, which must be determined by reference to the proper construction of the contract between the parties as a matter of private law and which does not involve a decision that is, or can be, susceptible to judicial review.
53. I can find no meaningful analogy between the position here and that which arose before O’Connor J in Earley v Health Service Executive [2015] IEHC 841, (Unreported, High Court, 27 November 2015), another authority upon which the defendants seek to rely. That decision was subsequently reversed on appeal in Earley v Health Service Executive [2017] IECA 158, (Unreported, Court of Appeal (Hogan J; Finlay Geoghegan and Peart JJ concurring), 5 May 2017) and an injunction was ultimately granted reinstating the appellant to the contractual position with the HSE from which she had been transferred; Earley v Health Service Executive (No. 2) [2017] IECA 207. As the decision of each court in that case made clear, the issue in cases of this kind is always the proper construction of the relevant contract.
The balance of convenience or least risk of injustice
54. Following the steps suggested in Merck, it seems to me that: (1) if Mr O’Donovan succeeded at trial, a permanent injunction might well be granted directing his reinstatement, or restraining his dismissal on the ground invoked, in the absence of a performance assessment conducted in accordance with his entitlement to fair procedures; and (2) this is not a case in which the grant of an interlocutory injunction will per se determine the issues between the parties, thus rendering any trial superfluous, although I do not overlook the tactical significance attributed to the grant or refusal of interlocutory relief in employment cases, as evidenced by the limited proportion of them that ultimately proceed to trial. Clarke J observed in Bergin v Galway Clinic Doughiska Ltd [2008] 2 IR 205 (at 212) that, when dealing with employment injunctions, it would be ‘somewhat naïve not to surmise that a significant feature of the interlocutory hearing is concerned with both parties attempting to establish the most advantageous position from which to approach the frequently expected negotiations designed to lead to an agreed termination of the contract of employment concerned.’
55. It is thus necessary to consider (3) how the matter should be arranged pending trial, with due regard to the balance of convenience and the balance of justice. This requires a consideration (4) of the adequacy of damages, bearing in mind that this is an employment, rather than a commercial, claim, and that the former may not require (5) the same robust scepticism about the claimed inadequacy of an award of damages as the latter. In considering the adequacy of damages, it is also necessary to take into account (6) as a factor any difficulty there may be in assessing damages. It is also necessary to consider (7) any other factors that come into play and must be weighed in the balance in considering what arrangement is fairest pending trial, bearing in mind there may be no trial. Finally, as an overarching principle, the application must be approached recognising (8) the essential flexibility of the remedy and the fundamental objective of seeking to minimise injustice prior to the determination of the legal rights of the parties at trial.
56. There is not the slightest doubt in this case that a relationship of mutual trust and confidence no longer exists between Mr O’Donovan and the defendants. Mr O’Donovan claims, among other things, that he was induced to enter the defendants’ employment by misrepresentation and that, in the manner and circumstances of his dismissal, they have traduced his reputation. The defendants claim, among other things, that Mr O’Donovan’s performance as CFO was sub-standard and that, while in that position, he wrongly disclosed sensitive commercial information to a third party in breach of confidence. That is, to put it no higher, a very weighty factor against the grant of an interlocutory order that would require, rather than permit, the defendants to allow Mr O’Donovan to resume his duties as CFO; see, for example, Harte v Kelly [1997] 8 ELR 125; and Bergin, already cited.
57. Mr O’Donovan apprehends that he will suffer reputational, as well as direct financial, damage in consequence of a performance assessment that he claims was conducted in breach of his entitlement to fair procedures and was wrong in its result. While it is possible to assess damages for reputational injury, that might not be a precise and perfect remedy in the circumstances.
58. More fundamentally, Mr O’Donovan has averred, albeit tersely, that without remuneration pending trial, he will be unable to discharge his debts as they fall due; including his monthly mortgage payments, insurance premiums and the expenses associated with rearing a young family. In Brennan v Irish Pride Bakeries (In receivership) [2017] IECA 107, (Unreported, Court of Appeal (Finlay Geoghegan J; Irvine and Hedigan JJ concurring), the Court of Appeal approved the following passage from the judgment of Laffoy J in Giblin v Irish Life & Permanent plc [2010] ELR 173 (at 184):
‘As a general proposition, in the context of employment injunctions, the jurisprudence of the courts has developed over the last quarter century so that it is generally considered that the prospect of an award of damages following the trial of the action is not an adequate remedy for a successful plaintiff who has been deprived of his salary pending the trial of the action.’
59. The defendants argue that, should an injunction be granted and should they later succeed in their defence to Mr O’Donovan’s claims, his undertaking to pay damages in that event may not adequately compensate them for two reasons; first, because he has not provided sufficient detail of his means to enable the court to assess the extent to which it is realistic for him to fully compensate them; and second, because, they claim, not unreasonably, that their inability to appoint a new CFO is causing them ongoing damage – as averred to in the affidavit sworn on their behalf by Mr Wade, the general manager of Over-C Technology – that may not be easy to quantify.
60. In support of the first reason, the defendants pray in aid the decision of O’Sullivan J in Martin v An Bord Pleanála [2002] 2 IR 655. However, that was not an employment injunction case, nor was it one in which it could have been argued, as it may be here, that any impecuniosity there may be on the part of the applicant has been caused or contributed to by the alleged wrongful conduct of the respondent(s).
61. There is obvious force in the argument that the defendants suffer significant ongoing prejudice through being without a CFO. In view of what is, in all probability, the irretrievable breakdown of the relationship of mutual trust and confidence between the parties, it is highly improbable that Mr O’Donovan will ever resume that role, even if he is entirely successful at the trial of the action. The substantive remedy he seeks is the annulment of the decision to terminate his employment during his probationary period for sub-standard performance. Mr O’Donovan acknowledges that the defendants are nonetheless entitled to terminate his employment on one month’s notice in accordance with the terms of his contract of employment. As is their right, the defendants have chosen to join issue on Mr O’Donovan’s claim that they were not entitled to dismiss him in the manner and circumstances that they did for sub-standard performance. But it is on that issue that I have found that Mr O’Donovan has made out a strong case.
A Fennelly Order
62. With those considerations in mind, I judge that the balance of convenience (that is to say, the least risk of injustice) lies in making a modified form of what has become known as a Fennelly order, after the decision of Costello J in the case of Fennelly v Assicurazioni Generali S.P.A. (1985) 3 ILT 73, (Unreported, High Court (Costello J, ex tempore), 12 March 1985). In its most basic form, that is an interlocutory order directing an employer to pay an employee all salary and other benefits to which the employee is entitled under the relevant contract of employment, on the undertaking of the employee to carry out such duties under that contract as the employer may require.
63. The defendants submitted in the course of argument that a Fennelly order is an exceptional relief that the court should be slow to grant. For my part, I share the view expressed in Kirwan, Injunctions: Law and Practice (2nd edn, 2015) (at 9-206) that ‘given the Fennelly orders evolutionary path, and the way in which subsequent cases followed Fennelly, it can now be said with some confidence that whatever about its status at the time Costello J delivered his judgment [in 1985], it can no longer be considered an exceptional – in either sense of the word – case at all’.
64. On behalf of Mr O’Donovan, Ms Bolger SC invited the court to consider instead an interlocutory injunction directing the defendants to conduct a fresh assessment of Mr O’Donovan’s performance during the probationary period in a manner consistent with his entitlement to fair procedures or, alternatively, directing that Mr O’Donovan’s appeal against the existing adverse assessment must proceed. In my judgment that would be inappropriate. It would alter, rather than preserve, the status quo pending trial. More significantly, it would involve prejudging what is likely to be a central – if not the central – issue at trial, namely, whether Mr O’Donovan’s dismissal was indeed effected in breach of his contractual entitlement to fair procedures. In addition, in the absence of the necessary determination at trial concerning the nature and extent of that entitlement, if it is found to exist, any such order would be difficult, if not impossible, to police.
65. It should not be necessary to reiterate that, in dealing with the present interlocutory application, I am not purporting to finally decide any of the legal or factual issues in controversy between the parties in the action. As Hardiman J observed in Dunne v Dun Laoghaire-Rathdown County Council [2003] 1 IR 567 (at 581), on a full hearing the evidence may be different and more ample and the law will be debated at greater length.
Summary
66. In my judgment, Mr O’Donovan has established a strong case that he had an implied contractual right to fair procedures in the assessment of his performance during his probationary period, which right was breached in the manner and circumstances of both the decision on 7 January to summarily dismiss him for sub-standard performance and the decision on 17 January to deem his appeal against that decision to have been withdrawn.
67. I am satisfied that the balance of convenience or, differently put, the least risk of injustice favours the making of a Fennelly order in the following terms:
(1) That the defendants are restrained from repudiating Mr O’Donovan’s contract of employment pending the trial of the action on the following specific terms:
(i) That Mr O’Donovan is to be paid his salary for a period of six months from the end of January 2020 (and any applicable bonus and other benefit arising during that period), on the provision by him of an undertaking to carry out any of the duties of CFO that the defendants may require of him.
(ii) That the defendants are not required to assign any of the duties of CFO to Mr O’Donovan at any time pending the trial of the action but, insofar as they do beyond the period of six months from the end of January 2020 and pending the trial of the action, must pay his salary (and any applicable bonus and other benefit) accordingly.
(iii) That the defendants may choose to put Mr O’Donovan on leave of absence rather than assign any duties to him, but that is without any prejudice to their obligation at (i) above.
(iv) That the defendants are released from their undertaking not to replace Mr O’Donovan by the appointment of a new CFO and may do so as they see fit.
68. I have fixed the period during which the defendants must pay Mr O’Donovan’s salary as one of six months, rather than the entire period pending trial, because, in light of Mr O’Donovan’s acknowledgment that the relationship of mutual trust and confidence between the parties has irretrievably broken down, his claim is, in reality, one for a fair termination process rather than for reinstatement in the role of CFO. It is also significant that, as Carroll J noted in Orr v Zomax Ltd [2004] IEHC 47, (Unreported, High Court, 25 March 2004) (at para. 58), on appeal to the Supreme Court in Fennelly, payment of salary was limited to six months.
Final matters
69. On 24 March 2020, the Chief Justice and Presidents of each court jurisdiction issued a joint statement recording their agreement that, in light of the COVID-19 pandemic and the need to minimise the exposure of persons using the courts to unnecessary risk, the default position until further notice is that written judgments are to be delivered electronically and posted as soon as possible on the Courts Service website. The statement continues:
‘The parties will be invited to communicate electronically with the Court on issues arising (if any) out of the judgment such as the precise form of order which requires to be made or questions concerning costs. If there are such issues and the parties do not agree in this regard concise written submissions should be filed electronically with the Office of the Court within 14 days of deliver subject to any other direction given in the judgment. Unless the interests of justice require an oral hearing to resolve such matters then any issues thereby arising will be dealt with remotely and any ruling which the Court is required to make will also be published on the website and will include a synopsis of the relevant submissions made where appropriate.’
70. Thus, I direct the parties to correspond with each other to strive for agreement on any issue arising from this judgment, including the issue of costs. In the event of any disagreement, short written submissions should be filed in the Central Office of the High Court within 14 days, to enable the court to adjudicate upon it.