WRC Procedures
Cases
Lawal v Northern Spirit Ltd
[2004] EWCA Civ 208
LORD JUSTICE PETER GIBSON:
Mr Lawal appealed to the Employment Appeal Tribunal against that decision. For the appeal Northern had instructed Mr Nicholas Underhill QC. He is a Recorder and sat as a part-time judge at the Appeal Tribunal. The constitution of the Appeal Tribunal due to hear Mr Lawal’s appeal included a lay member who had previously sat with Mr Underhill on another case. Mr Lawal objected, raising what was known as “the Recorder objection”, that is that there is a breach of Article 6(1) of the European Convention on Human Rights, as well as a real possibility of bias, for a case to be heard in the Appeal Tribunal in which: (1) a Recorder who sits as a judge of the Employment Appeal Tribunal appears as counsel; and (2) the constitution of the Appeal Tribunal hearing the case includes a lay member who has sat with the Recorder in the Appeal Tribunal.
Because of the Recorder objection taken by Mr Lawal, the Appeal Tribunal to hear his appeal was reconstituted and the appeal came before the Appeal Tribunal consisting of Lindsay J presiding and two lay members, neither of whom had sat with Mr Underhill in the Appeal Tribunal. The Lord Chancellor’s Department was allowed to intervene because of its interest in the Recorder objection. The Appeal Tribunal on 15th January 2002 dismissed both limbs of the appeal. It rejected the Recorder objection. On the jurisdiction issue it considered itself bound not only by Adekeye but also by two other decisions of this court.
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The appeal by Mr Lawal on the Recorder issue was heard by the House of Lords. Again, the Lord Chancellor’s Department appeared as an intervener. On 19th June 2003 the House of Lords allowed the appeal to the extent of declaring that Mr Lawal was entitled to succeed on the Recorder objection. The House of Lords remitted the case to this court to rule on the jurisdiction issue, taking into account the decision which that day had been given by the House of Lords in D’Souza. In that case (one of several cases reported together under the name Rhys-Harper v Relaxion Group Plc [2003] ICR 867), the House of Lords held that, notwithstanding that the discriminatory acts complained of took place after the applicant’s employment had ended, the Tribunal had jurisdiction to hear the complaint if it arose out of or was attributable to the employment relationship. The House of Lords made no order as to costs either in this court or in the House of Lords.
Bangs v Connex South Eastern Ltd.
[2005] EWCA Civ 14
Lord Justice Mummery :
General Introduction
This appeal poses a challenging question on the Human Rights Act 1998 (the 1998 Act) and the right to a fair trial under article 6(1) of the European Convention on Human Rights (the Convention): what is their impact on the right of appeal in a case where an employment tribunal failed to promulgate the decision under appeal within a reasonable time of the conclusion of the trial hearing?
Under article 6 a litigant has the right to the determination of a tribunal “within a reasonable time”: Porter v. Magill [2002] 2 AC 357 per Lord Hope at paragraph 108. This is in addition to the right to a fair trial within a reasonable time. Article 6 does not lay down what is a reasonable time. It does not even attempt to identify any of the factors relevant to determining what is a reasonable time. The question obviously depends on all the circumstances of the particular case: the nature of the tribunal, its jurisdiction, constitution and procedures, the subject matter of the case, its factual and legal complexity and difficulty, the conduct of the tribunal and of the parties and any other special features of the situation in which delay has occurred.
The likely effects of delayed decision-making, which can be serious, are relevant in determining what is a reasonable time. A tribunal’s delay prolongs legal uncertainty and postpones finality. It increases anxiety in an already stressful situation. It may cause injustice. A claimant in the right is wrongly kept out of his remedy and a defendant in the right has to wait longer than is reasonable for the allegations and claims against him to be rejected.
It is self evident that delay may also have a detrimental effect on the quality and soundness of the decision reached. This is more likely to occur where the decision turns less on the interpretation and application of the law than on the resolution of factual disputes, on which the tribunal has heard contradictory oral evidence from witnesses. Excessive delay may seriously diminish the unique advantage enjoyed by the tribunal in having seen and heard the witnesses give evidence and may impair its ability to make an informed and balanced assessment of the witnesses and their evidence.
Indeed, this is the very complaint in the race discrimination case under appeal. The hearing before the employment tribunal took place 2½ years ago. Unfortunately, over a year then passed before the tribunal promulgated its decision in favour of the complainant Mr Yaya Bangs against his employer, Connex South Eastern Limited (Connex). Connex then successfully appealed to the employment appeal tribunal on the ground of unreasonable delay, which, it contended, had resulted in a decision against it flawed by errors and omissions attributable to the delay.
The novel legal aspect of this appeal is that statute restricts the right of appeal against the decision of an employment tribunal. This is not unusual. A restricted right of appeal is common to most specialist statutory tribunals and inquiries. By s 21(1) of the Employment Tribunals Act 1996 the right of appeal is limited to questions of law arising from any decision of, or arising in any proceedings before, an employment tribunal. A question of law is not confined to misconstruing or misapplying substantive law in the decision itself. It may also arise from a procedural error or irregularity in the conduct of the proceedings before the tribunal, which, depending on the nature and gravity of the error or irregularity, may lead to a successful appeal and even to an order for the case to be re-heard by another tribunal.
The tribunal’s findings of fact, including findings on the credibility of witnesses, can only be challenged on appeal if it is established that no reasonable tribunal could have made the findings in question. A perverse decision is erroneous in law. It must be shown by the appellant that material findings of fact by the tribunal are perverse because, for instance, they are unsupported by any evidence, or they are contrary to uncontradicted evidence or they are plainly wrong for some other reason.
The restricted right of appeal from an employment tribunal is significantly different from the right of appeal in an ordinary civil case, where there is a right of appeal on both fact and law. In ordinary civil appeals the question is not whether the court substantively or procedurally erred in law, but whether the decision of the lower court was “wrong”: CPR Part 52.11(3). A decision of the court below is wrong if it erred in law and/or it erred in fact. The court may set the decision aside and order a new trial. An appeal may also succeed where, even though the decision of the lower court was not “wrong”, it was unjust because of a serious procedural or other irregularity.
In cases where there is a right of appeal on both fact and law it has been held that the appellate approach to cases of excessive delay is to ask whether, as a result of the delay, the decision under appeal is “unsafe” and whether it would be “unfair or unjust to let it stand”: see the judgment of the Privy Council delivered by Lord Scott in Cobham v. Frett [2001] 1WLR 1775 at 1783D. Although it was not a case to which article 6 of the Convention applied, the approach is, in my judgment, compatible with the Convention article and the jurisprudence on it.
” In their Lordships’ opinion, a legitimate basis on which the Court of Appeal could assert the right to disagree with the judge’s evaluation of the evidence and of the witnesses was absent. It can be easily accepted that excessive delay in delivery of a judgment may require a very careful perusal of the judge’s findings of fact and of his reasons for his conclusions in order to ensure that the delay has not caused injustice to the losing party. It will be important to consider the quality of the judge’s notes, not only of the evidence but also of the parties’ submissions. In the present case the judge’s notes were comprehensive and of high quality. As to demeanour, two things can be said. First, in their Lordships’ collective experience, a judge re-reading his notes of evidence after the elapse of a considerable period of time can expect, if the notes are of the requisite quality, his impressions of the witnesses to be revived by the rereading. Second, every experienced judge, and and Georges J was certainly that, is likely to make notes as the trial progresses recording his impression being made on him by the witnesses. Notes of this character would not, without the judge’s permission or special request being made to him, form part of the record of an appeal. They might be couched in language quite unsuitable for public record. In the present case delay, with a consequent dimming of the judge’s recollection of the evidence and of the witnesses demeanour, was not a ground of appeal. In these circumstances it is, in their Lordships’ opinion, impermissible to conclude from the fact of a 12-month delay that the judge had a difficult task, let alone an “impossible” one as Singh JA suggested in remembering the demeanour of witnesses.
In their Lordships’ opinion, if excessive delay, and they agree that 12 months would normally justify that description, is to be relied on in attacking a judgment, a fair case must be shown for believing that the judgment contains errors that are probably, or even possibly, attributable to the delay. The appellate court must be satisfied that the judgment is not safe and that to allow it to stand would be unfair to the complainant.”
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Discussion of proper test
The appeal tribunal’s criticisms of the employment tribunal decision must be assessed in the light of the correct legal principles governing an appeal from an employment tribunal.
In my judgment, there are difficulties in accepting the broad proposition formulated by the employment appeal tribunal at paragraph 15.2, that
“If the unsafeness of the Decision due to the delay is established, then that is an independent ground of appeal. And the delay will have infected and rendered unsafe one or more of the bases in law for the tribunal’s decision.”
That formulation was derived from the authorities on delayed judgments in ordinary civil cases, such as Cobham and Goose. In those cases the appellate court has wider powers of intervention than in the case of an appeal from an employment tribunal. The right of appeal in ordinary civil cases is not confined to questions of law. The appeal court may conclude that a decision is “wrong” because material factual errors in it or material omissions from it due to delay render it an “unsafe” decision on the facts or even on findings of the credibility of witnesses, and that it would be unjust or unfair to let the decision stand.
There are serious objections to transplanting the “wrong/unsafe decision” approach from an ordinary civil appeal to an appeal from the decision of an employment tribunal, where the right to appeal is confined by statute to questions of law. To do so would, in my view, enable appellants to challenge facts found by a tribunal, whose decision on the facts or on the claims could not be characterised as perverse. This would circumvent the policy of s 21(1) of the 1996 Act to confine tribunal appeals to questions of law. As I shall explain, this result is not justified by the 1998 Act or by article 6 of the Convention.
In my judgment, an appeal from an employment tribunal on the ground on unreasonable delay in promulgating its decision is governed by the following principles:
(1) It is confined to questions of law. s 21(1) of the 1996 Act says so in the clearest terms. In general, there is no appeal on the independent ground that the tribunal made erroneous findings of fact. The employment tribunal is the final arbiter of facts found by it so long as there was no error of law. It is not the function of the employment appeal tribunal or of this court to interfere with findings of fact by weighing the evidence and assessing its importance with a view to “correcting” erroneous findings of fact by the tribunal or requiring them to be re-litigated before another employment tribunal.
(2) No question of law arises from the decision itself just because it was not promulgated within a reasonable time. Unreasonable delay is a matter of fact, not a question of law. It does not in itself constitute an independent ground of appeal. Unreasonable delay may result in a breach of article 6 and possibly give rise to state liability to pay compensation to the victim of the delay, but it does not in itself give rise to a question of law, which would found an appeal challenging the correctness of the delayed decision and for obtaining an order reversing the delayed decision or for a re-trial. I agree with the appeal tribunal (paragraph 12) that in cases of delayed decisions
“… it cannot be just that there should be an automatic sanction of a re-hearing, because, quite apart from the adventitious loss to one or the other party of a result in his or her favour, that will only compound the problem, in leading to yet further delay and to the risk of yet further dimming of recollections.”
(3) No question of law arises and no independent ground of appeal exists simply because, by virtue of material factual errors and omissions resulting from delay, the decision is “unsafe”. A challenge to the tribunal’s findings of fact is not, in the absence of perversity (see (4) below, a valid ground of appeal and there is no jurisdiction under s21(1) of the 1996 Act to entertain it.
(4) In order to succeed in a challenge to the facts found by the tribunal it is necessary to establish that the decision is, as a result of the unreasonable delay, a perverse one either in its overall conclusion or on specific matters of material fact and credibility. Perversity is a question of law within s21(1) of the 1996 Act. It is extremely difficult to establish in general (see Yeboah v. Crofton [2002] IRLR 634) and particularly where the challenge is to findings on credibility.
(5) It is not incompatible with article 6 of the Convention for domestic legislation to limit the right of appeal from an employment tribunal to questions of law. It was not argued that there was any such incompatibility.
(6) Even if it were incompatible with article 6 to limit appeals to questions of law, it is not possible by use of s 3(1) of the 1998 Act or otherwise to interpret s21(1) of the 1996 Act as expanding a right of appeal expressly limited to questions of law to cover questions of fact. To interpret s21(1) as allowing appeals to be brought because the decision is factually “unsafe” and the findings of fact were “wrong” would be an exercise in amending the Employment Tribunals Act 1996. It would be outside the scope of legitimate judicial interpretation.
(7) There may, however, be exceptional cases in which unreasonable delay by the tribunal in promulgating its decision can properly be treated as a serious procedural error or material irregularity giving rise to a question of law in the “proceedings before the tribunal.” That would fall within s 21(1), which is not confined to questions of law to be found in the substantive decision itself. Such a case could occur if the appellant established that the failure to promulgate the decision within a reasonable time gave rise to a real risk that, due to the delayed decision, the party complaining was deprived of the substance of his right to a fair trial under article 6(1). Article 6 (1) guarantees a right to a fair trial. A point on whether or not a person has had a fair trial in the employment tribunal is capable of giving rise to a question of law. s21(1) does not, in my view, expressly or impliedly exclude a right of appeal where, due to excessive delay, there is a real risk that the litigant has been denied or deprived of the benefit of a fair trial of the proceedings and where it would be unfair or unjust to allow the delayed decision to stand. That could give rise to a question of law “in the proceedings before the tribunal,” which are still pending while the decision of the tribunal is awaited. Although this interpretation of s21(1) is more restrictive of the right of appeal than in an ordinary civil case, it would be not be incompatible with article 6(1).
Conclusions
A. General
So the key question is whether, due to the unreasonable delay, there is a real risk that Connex has in substance been denied or deprived of the article 6 right to a fair trial of the race discrimination claim by Mr Bangs and whether it would be unfair or unjust to allow the delayed decision to stand?
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C. Unreasonable Delay
I have reached a similar conclusion on the unreasonable delay point. Of course, the year’s delay ought never to have occurred. Although I express no opinion on it, the breach of article 6 may give rise to state liability for the delay. The delay did not, however, create a real risk that the benefit of the right to a fair trial was nullified and make it unfair or unjust to allow the decision to stand. At the end of the day the tribunal produced a detailed reasoned decision free of any legal error on its face. The members had started to discuss their decision and to prepare a draft set of findings soon after the conclusion of an oral hearing lasting six days in all. They were able to do so on the basis of a considerable quantity of documentary material, including the final written submissions. It is also more likely than not that the chairman had made reasonably good notes of the evidence to enable him to draft the decision, including the findings of fact, and that the members of the tribunal reminded themselves from the material of their impressions of the witnesses when they discussed credibility. It is likely that in a hearing of this length the members of the tribunal would have had an opportunity to exchange views on credibility as the hearing progressed.
Apart from the perversity point already discussed, it was not argued that there is any error of law in the decision itself or that the decision was defective for lack of reasons. Connex is left only with the contention that, due to unreasonable delay, this is an “unsafe” decision. I do not doubt that Connex considers that the decision against it is “unsafe” and that there has been a miscarriage of justice. In my judgment, however, the errors and omissions relied on as making the decision “unsafe” do not satisfy the more stringent test for raising a question of law in such circumstances. Reading the decision as a whole in the light of the specific criticisms made of it I am satisfied the delay in promulgating it did not create a real risk that Connex was deprived of the benefit of a full and fair trial. It is fair and just to allow the decision to stand rather than to order a new hearing by a different tribunal.
As I indicated earlier, appellate courts should be cautious in concluding that a delayed decision has created a real risk that a party has lost the benefit of a fair trial on the basis of errors and omissions in the decision relevant to findings on the credibility of witnesses. There were moments during the hearing of this appeal when Mr Matovu’s impressive advocacy persuaded me that he had made a good point in support of his attack on the tribunal’s assessments of credibility. Then I had to remind myself that I was not a member of an employment tribunal listening final submissions after hearing all the witnesses: I was only a member of an appeal court, with a jurisdiction limited to questions of law, listening to a good advocate cherry picking some well chosen factual points with a view to discrediting a witness, of whom the three members of the tribunal had formed a very favourable overall impression.”
National University of Ireland Cork -v- Ahern & Ors
[2005] IESC 40
SC McCracken J.
“The Respondents submit that the matters determined by the Labour Court were largely questions of fact, and that matters of fact as found by the Labour Court must be accepted by the High Court in any appeal from its findings. As a statement of principle, this is certainly correct. However, this is not to say that the High Court or this Court cannot examine the basis upon which the Labour Court found certain facts. The relevance, or indeed admissibility, of the matters relied on by the Labour Court in determining the facts is a question of law. In particular, the question of whether certain matters ought or ought not to have been considered by the Labour Court and ought or ought not to have been taken into account by it in determining the facts, is clearly a question of law, and can be considered on an appeal under s.8(3).
I accept that the consideration of whether there was “like work” or not is almost entirely a question of fact. The Labour Court did set out in some detail its considerations of the various aspects of the work performed by the security services officers and the switchboard operators and reached a conclusion of fact. Insofar as this conclusion determines that there was “like work” there were grounds upon which the Labour Court was entitled to make that finding, and indeed as the general duties between the main body of switchboard operators and the comparators did not differ greatly, the Labour Court was also entitled to find that the comparators were engaged in “like work” with the Respondents.
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Conclusion
Accordingly, while a determination that discrimination was not on grounds other than sex may be a determination of fact, nevertheless I am quite satisfied that such finding was not based on the proper consideration of the surrounding circumstances or of the underlying facts. To this degree, I am satisfied that there was an error of law.
In particular, I consider that the Labour Court erred in not differentiating between the matters properly to be taken into consideration when considering the concept of “like work” under s.3(c) and those relevant to the determination of the grounds for differing remuneration under s.2(3).
I should add that there was considerable argument before the Court on the question of onus of proof. It does seem to me that in the consideration of s.2(3) the onus of proof must be on the employer, as only the employer can put forward grounds of discrimination other than sex, but I do not consider that it has any great relevance to the issue in the present case, which does not depend on an onus of proof, but depends on whether there was a proper consideration by the Labour Court of the circumstances of the case.
In these circumstances the appropriate order is that the matter be remitted to the Labour Court to be reconsidered by it in the light of the findings in this judgment.
Cementation Skanska Limited v Tom Carroll
WTC/03/2
DETERMINATION:
Facts.
In this case the respondent made no defence to the claim other than to contend that the complaint was presented out of time.
The factual background to this case, as admitted or as found by the Court, is as follows:
…….
The claimant’s employment with the respondent terminated on 1st June 2001. On 13th August 2001 he presented a complaint pursuant to section 27 of the Act claiming redress in respect of alleged infringements of his statutory rights in relation to annual leave and public holidays. The complaint was heard by the Rights Commissioner on 1st August 2002.
In his decision issued on 31st December 2002, the Rights Commissioner took the view that the complaint before him was presented outside the time limit specified in section 27(4) of the Act. The Rights Commissioner further held against applying the extended limitation period provided for at section 27(5) of the Act. Accordingly, the Rights Commissioner declined to entertain the complaint. The claimant appealed to this Court.
Application of the Time–Limit.
The respondent contended that since the contract issued to the claimant in April, 2001 provided for compliance with the Act from 1st January 2001, the contraventions of which he complains must relate to a period prior to that date. Consequently, they say, the complaint was made out side the time limit prescribed by section 27(4) of the Act.
It is now clear that the limitation period at section 27(4) starts to run from the date on which the contravention complained of actually occurs. This was made clear by the High Court inRoyal Liver Assurance Limited v Mackin & Others High Court Unreported Lavin J 15th November 2002.The rationale of that decision appears to be that where an employee is granted unpaid annual leave, and brings a complaint seeking payment for that leave in accordance with the Act (as was the nature of the complaint in the Royal Liver case) the limitation period runs from the date on which the payment should have been made.
However in the instant case the complaint predominatly relates to a failure of the respondent to provide the claimant with his statutory entitlement to annual leave rather than a failure to pay for such leave. The respondent’s contention that the complaint in that regard is out of time appears to be based on the proposition that the revised conditions of employment issued in April 2001 created a new reference period for holiday purposes commencing on 1st January 2001.
The Court cannot accept that proposition. In advancing that line of argument the respondent is seeking to rely on the strict application of the Act in relation to the limitation period while at the same time seeking to depart from it in relation to the statutory time frame to which the limitation period should be applied.
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Extension of the Time Limit.
Section 27(5) of the Act provides as follows: –
“Notwithstanding subsection (4) a Rights Commissioner may entertain a complaint under this section presented to him or her after the expiration of the period referred to in subsection (4) (but not later than 12 months of such expiration) if he or she is satisfied that the failure to present the complaint within that period was due to reasonable cause”.
It is noted that the standard required by this subsection is that of “reasonable cause”. This may be contrasted with the much higher standard of “exceptional circumstances preventing the making of the claim” which is provided for in other employment related statutes. The Act gives no guidance as to the type of circumstances that can constitute reasonable cause and it would appear to be a matter of fact to be decided by the Rights Commissioner (and by extension the Court on appeal) in each individual case.
It is the Court’s view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.
The length of the delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. Here the Court should consider if the respondent has suffered prejudice by the delay and should also consider if the claimant has a good arguable case.
Has the Claimant shown Reasonable Cause?
The claimant told the Court that he had raised the question of his holiday entitlements with members of management on a number of occasions during the year 2000. Specifically he had discussed the matter with a Mr Barber and a Mr Sanky He was told that a test case was pending and that the position would be reviewed when this case was decided. He understood that this to be a reference to Mr Treacy’s case. When Mr Treacy’s case was decided he was told that the matter was being considered by the company’s head office in the UK.
In April 2001 the claimant was presented with a new contract, which provided for paid holidays with retrospective effect to 1st January 2001. However the respondent was still refusing to pay for holidays prior to that date. The claimant said that he became aware that a number of his colleagues had made complaints under the Act in respect of the period prior to 1st January 2001. He told the Court that he contacted the offices of the Labour Relations Commission with a view to making a similar complaint. He received advice which he understood to be that he should await the outcome of the cases already referred.
The respondent denied that they regarded Mr Treacy’s case as a test case or that the claimant had been told that his holiday entitlements would be determined by its outcome. Mr Barber did give evidence to the Court in which he said that he believed that the outcome of the Treacy case would affect other employees and that he may have so indicated to the claimant. He did emphasise that this was a personal view and that he was not authorised by the company to give any such assurances to employees nor did he purport to do so. Mr Sanky did not give evidence.
The company accepted that it was not prejudiced in its defence by the delay in the presentation of the claim.
Conclusions of the Court.
The Court is satisfied that when Mr Treacy succeeded in his claim before the Rights Commissioner, his colleagues, including the claimant, would have pursued similar claims had they not been deflected from so doing by the belief that the final outcome of that case would be of general application.
All parties viewed Mr Treacy’s case as a test case in the sense that it would decide whether the respondent could fulfil its statutory obligations under the Act by incorporating an element in basic pay to cover holidays. The Court is satisfied that this view was held by some members of management and was conveyed to the workforce including the claimant.
Whilst the appeal in Mr Treacy’s case was pending, it was perfectly reasonable for the claimant to suppose that the respondent would comply with the law when its import was finally decided. Thereafter, there was confusion amongst employees, including the claimant, as to whether or not it was necessary for them to make individual claims under the Act or whether a number of cases then in progress would decide the matter. The Court is further satisfied that the claimant was not to blame for this confusion.
Finally, the Court notes that the claimant did not have the benefit of independent professional advice in relation to his rights or on the procedures for the making of complaints under the Act.
In all the circumstance of the case the Court is satisfied that in respect of those contraventions of the Act which occurred up to 12 months after the expiry of the time limit at section 27(4), reasonable cause has been shown for the claimant’s failure to present the complaint within that time limit. The Court is further satisfied that the respondent has not suffered any prejudice by reason of that delay and that the claimant has a good arguable case which ought be heard.
The Court therefore determined to entertain all complaints appertaining to contraventions of the Act alleged to have occurred on or after 14th February 2000 (hereafter the relevant period).
County Louth vocational Educational Committee -v- Equality Tribunal
Zalewski v Adjudication Office & ors
[2021] IESC 24 (06 April 2021)
Judgment of Mr. Justice O’Donnell delivered on the 6th day of April, 2021.
I – Introduction
A. Background
1. These proceedings concern the constitutionality of the adjudicative process established under the Workplace Relations Act 2015 (“the 2015 Act”). The central issues raised are: whether that process amounts to the administration of justice required under the Constitution to be administered in courts; and, whether the statutory framework adequately vindicates a claimant’s rights under the Constitution and the European Convention on Human Rights (“E.C.H.R.”).
2. In a determination of the 28th of July, 2020, this court granted the appellant leave to appeal directly from the decision of the High Court (Simons J. – [2020] IEHC 178 (Unreported, High Court, Simons J., 21st of April, 2020)). The respondents cross-appeal in respect of certain findings of the trial judge and against the decision to award the appellant his costs ([2020] IEHC 226 (Unreported, High Court, Simons J., 21st of May, 2020)).
B. The Judgment of the High Court: [2020] IEHC 178
i. Facts
3. This case originated in the purported dismissal of the appellant by his former employer. The appellant then instituted two statutory claims:
(i.) a claim for unfair dismissal pursuant to the Unfair Dismissals Act 1977 (“the 1977 Act” or “the Act of 1977”); and
(ii.) a claim for payment in lieu of notice pursuant to the Payment of Wages Act 1991 (“the 1991 Act”).
Although each of these Acts provides for claims to be made for reliefs, the procedure for such claims is now provided for in the 2015 Act. It is that procedure which is challenged in this case.
4. The appellant’s claims were referred by the Director General of the Workplace Relations Commission (“W.R.C.”), pursuant to s. 41 of the 2015 Act and s. 8 of the 1977 Act, to an adjudication officer with a hearing scheduled for the 26th of October, 2016. The hearing commenced on that date, and the adjudication officer received written submissions and other documentation from the parties. An application for an adjournment was then made on behalf of the employer. Before the High Court, the parties disagreed as to the precise purpose of such; the State respondents submitted that the adjournment was to allow a witness on behalf of the employer to attend and be cross-examined whilst the appellant maintained that the adjournment was to merely allow the witness to attend with no decision having been made on cross-examination. Simons J. noted that this disagreement was significant in relation to the appellant’s contention that cross-examination was not available under the 2015 Act.
5. It is not in dispute that the hearing on the 26th of October only lasted for a few minutes with a further hearing scheduled for the 13th of December, 2016. The parties attended at the W.R.C.’s premises on that date but were informed by the adjudication officer that a decision had already issued in respect of the claim and that the hearing date had been scheduled in error. The adjudication officer informed the parties that the decision had already issued and the parties subsequently received a decision dated the 16th of December, 2016, which appeared to record that a full hearing did take place, after which a decision had been made dismissing the appellant’s claim. The extraordinary circumstances have been set out in the judgment in the court below and in a previous judgment of this court on the locus standi issue, but it is necessary to repeat them here as they form an essential backdrop to the legal issues raised on this appeal.
6. Tomasz Zalewski worked in a Costcutter convenience store in North Strand, Dublin, between 2012 and April, 2016. He started as a security man and then became a supervisor. The shop was subject to regular shoplifting and was, on occasions, robbed. In October, 2014, a most serious incident occurred when the shop was robbed with the use of pepper spray and a gun which was discharged. Mr. Zalewski commenced personal injury proceedings against his employer arising out of the incident. Later, in April, 2016, the manager of the shop, Mr. Brady, reprimanded Mr. Zalewski because he considered that there was a known shoplifter on the premises and that Mr. Zalewski ought to have excluded her. The conversation was heated. Mr. Zalewski went home and sought medical advice the following day. The management of the shop considered this to be misconduct.
7. Later, Mr. Zalewski was contacted by the owner’s son, who apologised — and then asked him in for a meeting with him and the manager — and then, at the meeting, both apologised. However, when Mr. Zalewski returned from sick leave he was called to another meeting and told it was a continuation of the first meeting. He was informed that he was not doing his job acceptably, had not prevented shoplifting, and had organised legal and medical advice for other members of the staff in relation to the violent robbery incident. He was formally called to a disciplinary meeting. In a letter of the 26th of April, 2016, he was informed that he had not followed correct robbery prevention procedures, had undermined staff members’ attempts to follow the procedures, and had denigrated the work ethic of other members of staff. Most seriously, he was informed that he had “associated with and used monies removed from the tills”. He was summarily dismissed on grounds of gross misconduct. He appealed the decision, which was upheld by the shop owner, himself. He was told that there was no accusation of stealing, but that the accusation contained in the letter was something asserted by another member of staff. Otherwise, the dismissal was affirmed.
8. Mr. Zalewski consulted a solicitor and commenced proceedings for unfair dismissal, and a claim for pay in lieu of notice under the 1991 Act. Mr. Zalewski and his solicitor attended at Tom Johnson House on the 26th of October, 2016, and met a representative of a professional firm representing the employer. There was a brief hearing, and the adjudication officer enquired as to whether Mr. Zalewski was in receipt of social welfare payments and asked the solicitor to confirm that he was not in receipt of any illness benefit and to provide her with a letter or certificate from the Department of Social Welfare. The employer’s representative then sought to hand in a booklet of documents to the adjudication officer. Mr. Zalewski’s solicitor had emailed a brief submission to the Workplace Relations Commission relating to procedures. The submission objected to the taking of any evidence by written documentation, and sought to insist that any evidence would be given by witnesses. Accordingly, Mr. Zalewski’s solicitor objected to the handing in of the booklet and stated that any factual evidence should be proved through an appropriate witness. At that point, the employer’s representative requested an adjournment of the hearing because one of the witnesses needed was not present. Mr. Zalewski’s solicitor indicated that he would not object to any such application, and the adjudication officer adjourned the hearing. The entire hearing took no more than ten minutes.
9. By letter of the 1st of November, the Workplace Relations Commission informed Mr. Zalewski that a hearing date of the 13th of December, 2016, had been assigned to the case, and that the hearing would take place at the W.R.C. offices at Lansdowne House, Ballsbridge. Mr. Zalewski’s solicitor had obtained correspondence from the Department of Social Protection confirming that he had not been in receipt of any illness or occupational benefit during the relevant period. Mr. Zalewski attended at Lansdowne House together with his solicitor on the 13th of December. The solicitor then met the representative of the employer, who told him that she had been informed by the adjudication officer’s receptionist that the adjudication officer had already issued her decision in relation to the complaints, and that the hearing had been scheduled in error. At that point, the adjudication officer walked into the corridor and met the solicitor and the employer’s representative. She apologised and said that the hearing date had been assigned in error and that she had issued her decision the previous week. She appeared to consider that she had heard and determined the case on the previous occasion. The solicitor received a letter dated the 16th of December, 2016, from the W.R.C. containing a copy of the adjudication officer’s decision dismissing the complaints. The decision stated that the adjudication officer had “enquired into the complaints and [given] the parties an opportunity to be heard … and to present … any evidence relevant to the complaints”. The decision contained a summary of the employer’s position which appeared to be extracted from the documentation submitted by the employer’s representative and to which the solicitor had objected. The decision also stated that the applicant had been requested to provide a statement from the Department of Social Protection and had failed to do so.
10. An ex parte application for leave to apply for judicial review was made on the 20th of February, 2017, seeking a wide range of declaratory reliefs, including declarations that the 2015 Act was repugnant to the Constitution, together with an order of certiorari quashing the decision of the adjudication officer. The State respondents conceded that the defects in procedure meant that the decision of the adjudication offer was invalid and offered to consent to the making of an order of certiorari. When the appellant did not agree that this would resolve the matter, the State respondents issued a motion seeking to have the appellant’s claim for declarations pursuant to the Constitution and the E.C.H.R. dismissed. The High Court agreed, but the decision was reversed by this court (Zalewski v. Adjudication Officer and The Workplace Relations Commission [2019] IESC 17, [2019] 2 I.L.R.M. 153). The matter then proceeded to a hearing on the broader issues.
ii. Legislative Overview
11. Prior to the 2015 Act, there was a range of statutory bodies having functions in relation to the field of industrial relations and employment law, and which had developed piecemeal, such as the Labour Court, the Labour Relations Commission (including the Rights Commissioners service), the Employment Appeals Tribunal (“E.A.T.”), the Equality Tribunal, and the National Employment Rights Authority. In the specific field of adjudication alone, the Labour Court had functions under the Industrial Relations Act 1946, the E.A.T. had jurisdiction in relation to claims under the Redundancy Payments Acts 1967 to 2003, the Minimum Notice and Terms of Employment Act 1973, the 1991 Act, and claims for unfair dismissal under the 1977 Act, and the Equality Tribunal had jurisdiction to hear and determine claims under the Employment Equality Act 1998 and the Equal Status Act 2000. The 2015 Act reduced the number of bodies having functions in the area to a W.R.C. having general jurisdiction and the Labour Court. In the specific field of adjudication and determination of statutory claims, with which this case is concerned, the 2015 Act streamlined the adjudicatory mechanism, providing for hearings in all cases under the legislation set out above before adjudication officers with a right of appeal thereafter to the Labour Court. This was essentially a procedural change and the substantive rights are still largely to be found in the original legislation. As Simons J. noted, however, the “procedural/substantive dichotomy” is not always observed.
12. Simons J. concluded that the appellant could not advance arguments on specific features of other pieces of legislation, such as the Employment Equality Act 1998, in respect of which he had not brought a claim before the W.R.C., and that he was confined to the operation of the statute insomuch as it concerned claims under the 1977 and 1991 Acts. However, any limitations arising from this approach to locus standi appeared to have had little practical effect on the determination of the constitutional challenge. Simons J. explained that this was because a claim under the 1977 Act is one of the more significant type of claims which can be brought within the jurisdiction of the decision-makers concerned and that the legislative history of the 1977 Act was directly relevant to the administration of justice question raised in this case. The argument in relation to locus standi loomed large in the High Court and was repeated in the written submissions, but did not figure strongly in oral argument. The appellant argued that it was necessary to consider the breadth of jurisdiction conferred by or collated in the 2015 Act in order to consider both whether it was an administration of justice under Article 34 and, if so, whether the W.R.C. could be said to be exercising limited powers and functions of a judicial nature under Article 37. However, it is not necessary to resolve the question of locus standi here. The Act of 1977 is a substantial piece of legislation and formed, perhaps, the most important aspect of the jurisdiction of the E.A.T. and the issues in this Act can be addressed, in principle, by reference to that Act in particular. It is necessary to keep in mind, however, that the W.R.C. and the Labour Court on appeal exercise jurisdiction in respect of claims in respect of redundancy and equality as well.
13. Simons J. set out the relevant aspects of the Act of 1977 (as amended):
(i.) First, a determination by the Employment Appeals Tribunal could not be directly enforced: under s. 10 of the 1977 Act, the Minister for Labour applied to the Circuit Court for an order that the employer make the appropriate redress to the employee. An express right to make such an application has since been conferred on an employee by s. 11 of the Unfair Dismissals (Amendment) Act 1993 (“the 1993 Act”). Originally, the application for enforcement under s. 10 of the 1977 Act involved a rehearing in the Circuit Court. However, s. 11 of the 1993 Act altered this to an ex parte application to the Circuit Court which, on proof that the determination had not been complied with, was obliged to make an enforcement order. If the relief granted was reinstatement or reengagement, the court could substitute an order for compensation (this was the model later adopted in the 2015 Act, albeit that application for enforcement under that Act is to be made to the District Court).
(ii.) Second, there was a statutory right of appeal from a decision of the Employment Appeals Tribunal to the Circuit Court, pursuant to s. 10(4) of the 1977 Act, which, again, took the form of a full rehearing on oral evidence. There also appeared to be a further right of appeal to the High Court in accordance with the Courts of Justice Act 1936 (see J.V.C. Europe Ltd. v. Panisi [2011] IEHC 279 (Unreported, High Court, Charleton J., 27th of July, 2011)).
(iii.) Third, the Act did not remove the right of an employee to make a claim at common law for wrongful dismissal. However, once an employee gave notice in writing of a claim under the 1977 Act, s. 15 provided that he or she was not thereafter entitled to recover damages at common law.
14. Simons J. then considered how these provisions had been amended in subsequent legislation, culminating in the 2015 Act:
(i.) The manner in which parallel claims for unfair dismissal and wrongful dismissal were regulated was amended by the 1993 Act. Parallel claims could be pursued until such time as the hearing before either the Employment Appeals Tribunal or the court had commenced, but then the employee was confined to that specific remedy (s. 10 of the 1993 Act). By s. 80(1)(l) of the 2015 Act, an employee is now precluded from pursuing a claim of wrongful dismissal once a decision has been made by an adjudication officer under the 1977 Act and precluded from pursuing a claim for unfair dismissal once a hearing by a court of a claim for damages at common law has commenced.
(ii.) The 2015 Act transferred the jurisdiction exercised by the Rights Commissioners and Employment Appeals Tribunal — which had been carried out pursuant to s. 8 of the 1977 Act — to the adjudication officers and the Labour Court respectively, and removed the right of appeal to the Circuit Court. There is a right of appeal to the High Court on a point of law with no further appeal therefrom. However, Simons J. did note that an application to the Supreme Court for leave to appeal may be possible (Pepper Finance Corporation v. Cannon [2020] IESC 2, [2020] 2 I.L.R.M. 373).
(iii.) The enforcement mechanism of the decision is by application to the District Court pursuant to s. 43 of the 2015 Act. However, the powers of the court are limited. Under s. 43(2), where reinstatement or reengagement was ordered, the court could substitute an order for compensation. The application is made ex parte and the employer is not on notice of the application. Once it is established that the adjudication officer has made a determination and that it has not been satisfied within 56 days of the date of notification, then (subject only to the power to substitute damages for an award of reinstatement or reengagement) enforcement is mandatory:-
“the District Court shall … without hearing the employer or any evidence … make an order directing the employer to carry out the decision in accordance with its terms.” (Emphasis added.)
15. Simons J. then considered the development of the procedure in respect of claims under the 1991 Act:
(i.) Under s. 5 of the 1991 Act, as defined by s. 1(1) of the 1991 Act, the employer is required to pay a sum in lieu of the appropriate prior notice of the termination of employment. Under the 2015 Act, a claim is now made in the first instance to an adjudication officer with a right of appeal thereafter to the Labour Court. Originally, a decision of a Rights Commissioner or a determination of the Employment Appeals Tribunal under the 1991 Act could be enforced as if it were a court order. Now, a decision of an adjudication officer or the Labour Court must be enforced through an application to the District Court under s. 43 of the Act.
Simons J. then turned to the features of the 2015 Act that were common to claims under both Acts:
(ii.) Under the 2015 Act, an employee who wishes to advance a claim for unfair dismissal or the payment of wages in lieu of notice is required to present the claim to the Director General of the Workplace Relations Commission. The Director General will then refer the claim to an adjudication officer pursuant to s. 8 of the 1977 Act in the case of a claim for unfair dismissal or pursuant to s. 41 of the 2015 Act for a claim for payment of wages in lieu of notice.
(iii.) Adjudication officers are appointed by the Minister for Jobs, Enterprise and Innovation (as defined in s. 2 of the 2015 Act) pursuant to s. 40 of the 2015 Act, with no formal qualifications prescribed. However, s. 40(2) of the 2015 Act provides that appointments as adjudication officer can only be made pursuant to the selection of that person for the role following a competition. The principal functions of an adjudication officer are set out in s. 41(5) of the 2015 Act. An adjudication officer has the power to compel the attendance of witnesses, but does not have an express power to administer an oath or affirmation.
(iv.) There is a right of appeal against the decision of an adjudication officer to the Labour Court under s. 44 of the 2015 Act. The Labour Court can take evidence on oath (s. 21 of the Industrial Relations Act 1946 (as amended by s. 74(a)(ii) of the 2015 Act)) and proceedings are conducted in public unless the Labour Court, upon the application of a party, determines that the proceedings should be conducted otherwise due to special circumstances (s. 44(7) of the 2015 Act). The Labour Court may refer a question of law to the High Court for determination (s. 44(6) of the 2015 Act). Under s. 45, decisions of the Labour Court can be enforced via an application to the District Court in the same way as determinations of an adjudication officer; failure to comply with an enforcement order made under either s. 43 or s. 45 is a criminal offence under s. 51.
iii. Administration of Justice
16. The appellant argued that the procedure under the Act amounted to the administration of justice as per Article 34.1 of the Constitution, which could only be carried out by a court. The starting point was the five-point test for the administration of justice set out in McDonald v. Bord na gCon [1965] I.R. 217 (“McDonald v. Bord na gCon” or “McDonald”), recently applied by this court in O’Connell v. The Turf Club [2015] IESC 57, [2017] 2 IR 43 (“O’Connell”):
(i.) a dispute or controversy as to the existence of legal rights or a violation of the law;
(ii.) the determination or ascertainment of the rights of parties or the imposition of liabilities or the infliction of a penalty;
(iii.) the final determination (subject to appeal) of legal rights or liabilities or the imposition of penalties;
(iv.) the enforcement of those rights or liabilities or the imposition of a penalty by the court or by the executive power of the State which is called in by the court to enforce its judgment;
(v.) the making of an order by the court which, as a matter of history, is an order characteristic of courts in this country.
17. The parties accepted that the determination of the two relevant claims exhibited the first three characteristics, but disputed whether the fourth and fifth characteristics were fulfilled.
18. Simons J. held that the fifth limb of the test required a consideration of whether the claims for redress which the appellant made were of a type which have historically been determined by a court. He reviewed the case law (In re The Solicitors Act 1954 [1960] I.R. 239 (“Re Solicitors Act 1954”); Cowan v. The Attorney General & Ors. [1961] I.R. 411 (“Cowan v. A.G.”); Keady v. Commissioner of An Garda Síochána [1992] 2 I.R. 197 (“Keady”); and O’Connell) and concluded that that the fifth characteristic of the McDonald test will only assume importance in a small category of cases where there is a long-established tradition of a particular type of decision-making falling within or outwith the courts’ jurisdiction. Determining claims for wrongful dismissal was the business of the courts for decades before the 2015 Act and the argument that such were matters of “industrial relations” was contradicted by the legislative history of the 1977 Act and the previous involvement of the Circuit Court. Employment legislation generally implied statutory terms into contracts of employment, and thus the issues for adjudication are not dissimilar to those that would arise in proceedings for breach of contract. The State respondents placed reliance on the jurisdiction in respect of equality claims discussed in Doherty v. South Dublin County Council (No. 2) [2007] IEHC 4, [2007] 2 IR 696 (“Doherty”) and argued that, in effect, the 1977 Act created a new self-contained statutory jurisdiction which had never been part of the jurisdiction of the High Court. Simons J. rejected this argument. He did not consider that it was necessary to decide if the fifth limb in McDonald v. Bord na gCon could permit the State to put any newly created statutory right beyond the reach of the courts without infringing Article 34, although he doubted it. However, he considered that the very fact that, for almost 40 years, the Circuit Court had jurisdiction to hear and determine claims of unfair dismissal showed that the orders made by the W.R.C. were orders of a type historically made by courts. He considered that Doherty was addressed to a different point; in that case, it had been sought to be argued that it was permissible to circumvent the statutory jurisdiction created by the Equal Status Act and commence a claim for relief under the Act in the High Court. The issue was whether the full and original jurisdiction of the High Court could be invoked notwithstanding the exclusive jurisdiction conferred under the Act. That did not address the question whether the orders made by the Equality Tribunal were of a type which, as a matter of history, were made by courts — indeed, the claim that the High Court had jurisdiction implied that such orders were orders capable of being made by the High Court.
19. Simons J. concluded that the hearing and determination of a claim for unfair dismissal and for the payment of wages in lieu of notice fulfils the fifth limb of the test in McDonald: the making of orders determining such claims was characteristic of the business of courts as carried out under the 1977 Act and the type of orders made pursuant to the common law jurisdiction for claims of wrongful dismissal.
20. In relation to the fourth limb, Simons J. noted that the ability of a decision-maker to enforce decisions is one of the essential characteristics of the administration of justice (Lynham v. Butler (No. 2) [1933] I.R. 74 (“Lynham v. Butler (No.2)”)). It was not necessary that the decision-maker must be able to enforce its decisions itself; the executive power of the State may be called to aid in such enforcement. However, a decision to impose financial penalties was not the administration of justice where there is no process for converting such a decision into a judgment and the decision cannot be enforced of its own right and the monies must be recovered in litigation (O’Connell).
21. The legislative history of the 1977 and the 1991 Acts indicated that the Oireachtas intended a range of legislative devices to give effect to determinations of statutory bodies in respect of employment disputes. At one end, a determination may be enforced as if it were an order of the Circuit Court made in civil proceedings (s. 8 of the 1991 Act), and, at the other, a requirement to apply to the Circuit Court to enforce a determination where the Circuit Court has full jurisdiction to consider the merits of the underlying claim (s. 10 of the 1977 Act). Simons J. considered that the approach under the 2015 Act lay between these positions: an ex parte application must be made to the District Court to enforce a decision of an adjudication officer or the Labour Court and a failure to comply with the District Court order is an offence under s. 51 of the 2015 Act. Simons J. concluded that the necessity of having to make such an application for enforcement deprived the determinations of one of the essential characteristics of the administration of justice. Section 43(2) of the 2015 Act allowed the District Court to modify a determination if the redress ordered was reinstatement or reengagement by making an order that the employer pay compensation fixed by the court, but not exceeding 104 weeks’ pay. Simons J. came to the conclusion on this issue “[w]ith some hesitation” at para. 77 of the judgment that:-
“Whereas the function to be exercised by the District Court is a narrow one, it cannot be dismissed as a mere rubber-stamping of the earlier determination.”
His reasoning on this aspect of the case was encapsulated at paras. 218 and 219 of his judgment:-
“218. Crucially, however, the decision-making under the [2015 Act] lacks one of the essential characteristics of the administration of justice, namely the ability of a decision-maker to enforce its decisions. The necessity of having to make an application to the District Court to enforce a decision of an adjudication officer or the Labour Court deprives such determinations of one of the essential characteristics of the administration of justice. Whereas the function to be exercised by the District Court is a narrow one, it cannot be dismissed as a mere rubber-stamping of the earlier determination. The District Court’s discretion to modify the form of redress represents a significant curtailment of the decision-making powers of the adjudication officers and the Labour Court. The District Court can, in effect, overrule their decision to direct that the employee be re-instated or re-engaged.
219. A decision-maker who is not only reliant on the parties invoking the judicial power to enforce its decisions, but whose decisions as to the form of relief are then vulnerable to being overruled as part of that process, cannot be said to be carrying out the administration of justice.” (Emphasis in original.)
Accordingly, the fourth limb of the test was not satisfied.
iv. Relevance of Access to a Court of Law
22. Simons J. also considered the impact of a scheme not being exclusive in that it did not oust the right of access to the courts for claims in respect of wrongful dismissal. He noted that the orthodox position was that the existence of an appeal to the courts cannot restore constitutionality to a tribunal whose decisions, if unappealed, amount to an administration of justice (Re Solicitors Act 1954). Simons J. then referred to Lynham v. Butler (No. 2), holding that it appeared to be concerned with the division of administrative and judicial functions in a situation different to that under the 2015 Act where all issues in dispute are to be determined by an adjudication officer and the Labour Court.
23. Simons J. noted that it was anomalous that requiring the intervention of the District Court to enforce a determination of the Labour Court was sufficient to deprive it of one of the characteristics of the administration of justice but the existence of a full right of appeal against it to the Circuit Court would not. However, it may be that recourse to judicial power was always necessary to obtain an enforcement order, whereas a first-instance decision became final and conclusive in the absence of an appeal. With other statutory schemes, the legislation provided an alternative to legal proceedings, but did not displace a right of action. The 1977 Act did not oust the jurisdiction of the courts; the statutory right to make a claim for unfair dismissal was parallel to the common law right of action for wrongful dismissal.
24. However, the existence of a parallel jurisdiction under statute inhibits the common law. This is known as the “Johnson exclusion area” (Johnson v. Unisys Ltd. [2001] UKHL 13, [2003] 1 AC 518 (“Johnson”)) where the House of Lords concluded that, by enacting the Employment Rights Act 1996, the Westminster Parliament had set up an entirely new system outside the ordinary courts and that to develop the common law in the area would run contrary to Parliament’s intention. Both Johnson and the subsequent decision of Eastwood v. Magnox Electric p.l.c. [2004] UKHL 35, [2005] 1 AC 503 were applied by the High Court in this jurisdiction by Laffoy J. in Nolan v. Emo Oil Services Ltd. [2009] IEHC 15, [2010] 1 ILRM 228. Simons J. concluded, in this regard, that even if the preservation of a parallel right of action before the courts might be an answer to an allegation that a statutory decision-maker was carrying out the administration of justice, this could not apply in the context of employment legislation. He concluded, however, that the failure to satisfy the fourth limb of the McDonald test meant that the decision of the W.R.C. did not constitute the administration of justice for the purposes of Article 34.
v. Article 37 of the Constitution
25. In light of the finding that the determination of a claim for unfair dismissal and for the payment of wages in lieu of notice did not involve the administration of justice within the meaning of Article 34 of the Constitution, Simons J. found it unnecessary to consider arguments under Article 37. Having concluded, therefore, that the jurisdiction exercised by the W.R.C. did not amount to the administration of justice confined to courts under Article 34, Simons J. then turned to the arguments that the procedure adopted by the W.R.C. offended the Constitution.
vi. Article 40.3 of the Constitution
26. The appellant made four complaints under Article 40.3 of the Constitution:
(i.) there was no requirement that adjudication officers or members of the Labour Court have any legal qualifications, training, or experience;
(ii.) there was no provision for an adjudication officer to administer an oath or affirmation. There was no criminal sanction for a witness who gave false evidence before an adjudication officer;
(iii.) there was no express provision made for the cross-examination of witnesses; and
(iv.) the proceedings before an adjudication officer were held otherwise than in public.
27. The argument in relation to legal qualifications was made by analogy to the qualifications for appointment to judicial office. Simons J. held that this type of comparison was inappropriate; the argument started by assuming that the role of an adjudication officer was equivalent to that of a judge, but that could not be so given that he had held that decision-making under the 2015 Act did not involve the administration of justice.
28. The appellant presented affidavit evidence from a barrister and solicitor with wide experience in the field of employment law who pointed to the complexity of many of the issues of national and E.U. law that can arise in employment disputes. Both stated that, while it would be inappropriate to refer to individual cases, it was their experience that a number of adjudication officers and ordinary members of the Labour Court simply did not understand some of the more difficult questions that arise and that each had appeared in cases where they firmly believed the adjudication officer involved “quite simply did not have sufficient understanding to deal with the important matters before them”. The appellant’s solicitor referred to a published article which conducted a survey of users of the new system — including lawyers, representatives of employers’ organisations, and trade union representatives, and others — which found that 49% were dissatisfied or very dissatisfied with the new system. It was argued that the evidence demonstrated that the absence of legal qualifications led to systemic problems with the use of adjudication officers to hear claims. Simons J. considered, however, that the generalised and vague nature of the evidence was such that it was not possible to find that there had been a systemic failure in the hearing and adjudication of claims. Whilst the circumstances in which the present appellant’s claim came to be dealt with were regrettable, it was not possible to draw wider inferences of systemic failure from this particular set of circumstances.
29. Simons J. held that the structure of the 2015 Act indicated that it was a deliberate legislative choice that evidence would not be required to be given on oath. At one end of a spectrum requiring fair procedures was the criminal trial: close to the other end were disciplinary procedures against professionals where the final decision to strike off such a professional is reserved to the High Court. However, the heightened safeguards for professional persons whose capacity to earn a livelihood was at risk (Law Society of Ireland v. Coleman [2018] IESC 80 (Unreported, Supreme Court, McKechnie J., 21st of December, 2018)) could not necessarily be read across to other employment contexts. While procedures against other classes of employee can have great consequences, and it may be appropriate for there to be the hearing of evidence on oath or affirmation, appropriateness was not the same as a constitutional requirement.
30. When analysing decision-making, the full range of procedures open to a party must be examined (Crayden Fishing Co. v. Sea Fisheries Protection Authority [2017] IESC 74, [2017] 3 I.R. 785) and whilst the scheme under the 2015 Act was not unitary, a party who wishes to avail of evidence on oath or affirmation must take the trouble to bring an appeal to the Labour Court or the decision of the adjudication officer remains final. However, the existence of the safeguard of an appeal was an important factor.
31. Simons J. concluded that there was no constitutional requirement that decision-making of the type arising in a claim for unfair dismissal or for the payment of wages in lieu of notice must be performed on the basis of sworn evidence.
32. Simons J. considered that the complaint in respect of cross-examination reduced itself to one predicated on the absence of an express statutory power or duty to allow cross-examination. He considered that a power to allow cross-examination arose from the provisions of s. 41 of the 2015 Act and an adjudication officer was required to give the parties an opportunity to be heard and to present any relevant evidence. The appellant’s argument that there should be an express requirement to allow cross-examination in all cases could not be reconciled with the presumption in East Donegal Co-Operative Livestock Mart Limited v. The Attorney General [1970] I.R. 317. In those cases where cross-examination was required, the adjudication officer was to be presumed to allow it; if there was a failure in this regard, then it would represent a good ground for judicial review.
33. The appellant also objected to the fact that that proceedings before an adjudication officer are held otherwise than in public (subss. 13 and 14 of s. 41 of the 2015 Act). However, Simons J. noted that the same subsections contained an express obligation to publish every decision and that proceedings in the Labour Court on appeal were conducted in public unless it determines otherwise upon the application of a party to the appeal pursuant to s. 44(7) of the 2015 Act. The appellant relied, variously, on Articles 34.1, 37, and 40.3 of the Constitution for a constitutional right to a public hearing before a statutory decision-maker, but no authority was cited in support. The appellant cited a number of cases illustrating the values underlying Article 34.1 (In Re R. Ltd. [1989] I.R. 126; Irish Times Ltd. v. Ireland [1998] 1 IR 359; and Gilchrist v. Sunday Newspapers Ltd. [2017] IESC 18, [2017] 2 I.R. 284). However, Simons J. held that it was not immediately apparent that such values could immediately be read across to non-judicial decision-makers. There were even exceptions to the constitutional requirement that justice be administered in public in the exercise of judicial power. Even if there was a presumption in favour of a public hearing, the requirements of the 2015 Act struck a balance when it was considered that employees may be disincentivised from bringing proceedings if first-instance hearings are in public and they could be perceived by prospective employers as troublemakers. Even if this was incorrect, Simons J. found that the provisions governing the Labour Court satisfied any requirement of a public hearing.
vii. E.C.H.R. (Article 6(1))
34. The determination of claims under the 1977 and 1991 Acts was the determination of civil rights under Article 6(1) of the Convention. However, a number of judgments of the European Court of Human Rights (Malhous v. The Czech Republic, App. No. 33071/96; Buterlevičiūtė v. Lithuania, App. No. 42139/08; and Ramos Nunes de Carvalho E Sá v. Portugal, App. Nos. 55391/13, 57728/13, and 74041/13) confirmed that a public hearing before an appellate court may remedy what would otherwise be a breach of Article 6(1) at a lower level subject to the requirement that the appellate court have “full jurisdiction”. Appeals to the Labour Court are conducted de novo and thus this requirement was met.
II – Discussion
A. Development of Jurisprudence
35. While this case raises a difficult conceptual question as to the nature of the administration of justice, it might be thought the essential issue involves a consideration of a limited number of well-known cases (principally: Lynham v. Butler (No. 2); Re Solicitors Act 1954; and McDonald v. Bord na gCon) and a relatively narrow dispute about the application to this case of only two of the five criteria set out in McDonald. The appellant argues that the High Court was incorrect to hold that the fourth limb of the test (the enforcement of rights and liabilities or the imposition of penalties by the court or by the executive power of the State) was not satisfied. The State denies this and, also, argues that the High Court was wrong to conclude that the fifth limb of the test (the making of an order which, as matter of history, is an order characteristic of courts in this country) was satisfied. It will be necessary to consider the case law and legislation in closer detail, but it is useful, in my view, to try and locate this dispute in a wider context in relation to both history and jurisprudence.
36. Since the enactment in 1922 of Article 64 of the Irish Free State Constitution, it has been a fixed point in the constitutional order that justice is administered in courts by judges. Ireland has, since independence, been committed to a constitutional structure which recognises a separation of powers. The judicial power, although the weakest branch, is essential to the maintenance of that balance, particularly, perhaps, in a structure which provides for a parliamentary democracy in which the executive branch is part of, and largely controls, the legislative branch. In that sense, the independent existence of the judicial power which administers justice can be said to be the lynchpin of the constitutional order created first in 1922, and developed in 1937. But, the case law and commentary since 1922 have struggled to provide a satisfactory definition, or even description, of the field of the administration of justice. This is not, as it may be in other jurisdictions, a difficult though somewhat academic jurisprudential issue. As has been observed, “belief in the importance of protecting the judicial power from encroachment by the legislature or executive must at least invoke the idea that there is an appropriate area for its operation” (G. Marshall, Constitutional Theory (Oxford: Oxford University Press, 1971), p. 120, quoted in J. Casey, Constitutional Law of Ireland (Dublin: Round Hall, 2000), p. 255). The provisions of both the 1922 and 1937 constitutions make it clear that the administration of justice is consigned to courts as a matter of constitutional law which the courts are bound to uphold and enforce.
37. Ireland is by no means the only jurisdiction to struggle with the analysis of dispute resolution by administrative bodies outside courts in a system that distinguishes, even imperfectly, between executive, legislative, and judicial power. This issue has posed problems in many common law countries, particularly those with constitutions assigning the administration of justice to judges or courts or, perhaps, providing for the administration of justice in a federal system. A.V. Dicey’s insistence that the common law did not conceive of any separate system akin to the civil law droit administratif was very influential within the common law world and meant that the burgeoning role of the administration in legal matters had to be addressed within the traditional structures and patterns of the common law.
38. The Industrial Revolution led to a significant increase in the role of the state and a demand for adjudication and resolution by bodies other than courts. In some cases, this was driven by the simple desire to have bodies with expertise in specific areas, as was the case in relation to issues such as the developing law of taxation or the rapid expansion of the railway system, which gave rise to novel and complex disputes thought to require particular expertise. In other cases, perhaps most notably in the field of industrial relations, there was a desire for resolution by bodies other than courts (which, particularly in the late 19th and early 20th centuries, were perceived as hostile to employees, trade unions, and collective action) and a preference for a system of low-cost, relatively informal non-judicial dispute resolution.
39. The expanded role of the State and the proliferation of administrative bodies outside the executive government led to concerns among some lawyers as to these developments. Perhaps most notably, the then Lord Chief Justice of England and Wales, Lord Hewart, a former government minister, published in 1929 a controversial, if somewhat intemperate, book entitled The New Despotism (London: Ernest Benn Limited, 1929). It criticised as constitutionally subversive the burgeoning practice of delegated legislation which, it was argued, allowed ministers, and therefore civil servants, to bypass Parliament, and the practice of assigning judicial power to specialist tribunals in breach, it was said, of Dicey’s first principle of the Rule of Law. This uneasiness among lawyers was reflected in other jurisdictions and may be seen, perhaps, in the almost contemporaneous approach of the U.S. Supreme Court to the creation of a proliferation of administrative agencies under the New Deal. In the U.K., a high-powered Committee on Ministers’ Powers, which included among its members Sir William Holdsworth and Harold Laski, reported on these matters in 1932. The Committee recommended that judicial decisions should “normally” be entrusted to the ordinary courts, but also considered there was nothing radically wrong in the practice of Parliament permitting the exercise of judicial powers by tribunals, recommending, however, that reasons should be given for decisions and there should be a right of appeal to the High Court on a point of law.
40. In the United Kingdom, the practice of creating administrative tribunals increased apace and led to a further review in the Franks Report in 1957 which rejected the contention that the tribunals were purely administrative in nature. It recognised that the functions performed were judicial, and, therefore, the tribunals should be considered to be provided by Parliament for adjudication rather than administration. Accordingly, the Report set out general principles for their operation by reference to familiar court-like concepts of openness, fairness, and impartiality. In the year 2000, the Leggatt Review reported on the further development of the tribunal system and recommended a comprehensive reorganisation. Subsequently, a two-level tribunal system was established with a first-tier tribunal and an upper tribunal both divided into specialist chambers by subject-matter and incorporated within the structure of the administration of justice. In this case, indeed, counsel for the appellant argued that this is the course which ought to have been taken, at least in the field of employment law, in the 2015 Act, and which, it was contended, was, moreover, constitutionally required. It was said that the logic of the judicialising of the employment relationship should lead to the conclusion that the decision-making body should have the role and status of judges under the Constitution, however unwieldy such a solution might be. One noteworthy feature of these developments is that, notwithstanding the concerns expressed by lawyers such as Hewart, the effect of the development of administrative bodies and tribunals was not the bypassing of the role of the courts. Instead, the development of robust judicial review has meant that the expansive role of the State has markedly increased the role and influence of the courts and the significance and impact of administrative law.
41. During this period, there were repeated attempts to establish a more precise definition of the judicial power and the concept of justiciability. This was not, it appears, an attempt to identify the essence of the judicial power in itself since, pace Hewart, there was little concern about legislative subtractions from the jurisdiction of the courts, but rather to cast light on the concept, popularised by the 1932 Committee, of administrative bodies carrying out “quasi-judicial” functions. This proved, however, a dispiriting (if revealing) exercise. In judicial terms, it resulted in a series of negative conclusions, most notably in the judgment of Lord Sankey L.C. in Shell Company of Australia v. Federal Commissioner of Taxation [1931] AC 275 (“Shell”), quoted by Haugh J. in Cowan v. A.G. at pp. 422 to 423 of the report of the latter case:-
“It may be useful to enumerate some negative propositions on this subject: 1. A tribunal is not necessarily a Court in this strict sense because it gives a final decision. 2. Nor because it hears witnesses on oath. 3. Nor because two or more contending parties appear before it between whom it has to decide. 4. Nor because it gives decisions which affect the rights of subjects. 5. Nor because there is an appeal to the Court. 6. Nor because it is a body to which a matter is referred by another body.”
42. In his 1957 Hamlyn Lectures, published as Protection from Power under English Law (London: Stevens & Sons Ltd., 1957), Lord MacDermott, the then Lord Chief Justice of Northern Ireland, acknowledged the difficulty of drawing any clear line but suggested, at p. 52, that:-
“[a] judicial decision implies the presentation of their case by the parties to the dispute, the ascertainment of the relevant facts and of the relevant law and a decision which is reached by applying the relevant law to the relevant findings of fact”.
Slightly later, however, in an essay, “Justiciability”, in Oxford Essays in Jurisprudence (A.G. Guest ed., Oxford: Oxford University Press, 1961), the noted constitutional scholar Geoffrey Marshall asserted, bluntly, at pp. 277 to 278 that:-
“there are two interlocking questions involved in the notion of ‘justiciability’ when it functions as an appraising term: (1) How far is it possible to make the concept of ‘judicial’ methods precise? and (2) How far is it possible to specify situations or disputes which are inherently suitable to such methods? To the first question one answer seems clear: namely that it is not possible to construct from judicial materials a single set of reasonably unambiguous criteria for calling a procedure ‘judicial’. Moreover many of the tests historically enunciated by the courts are now insufficiently precise to discriminate within a large penumbra of doubtful cases, and too great an element of chance enters into the question of classification where there is no specific guidance from by the Legislature. To the second question there seems an equally plain answer. No dispute is inherently justiciable or suited to judicial solution”.
43. He concluded the essay with the clear, if bleak, observation at p. 287 that:-
“the characterisation of … issues as ‘justiciable’ or ‘non justiciable’ is a legislative job”.
44. Nevertheless, Dr. Marshall did recognise that “a constitutional separation of powers raises the problem of characterising the judicial function in a direct and fundamental way”. This neatly captures the difficulty which the courts must address in “the penumbra of doubtful cases” such as the present. There is no clear definite test capable of being constructed to distinguish the administration of justice from an administrative decision-making function bound to act judicially, but the Constitution assumes the distinction, asserts its importance, and requires the legislature to respect it and the courts to uphold it. In Ireland, and in any other jurisdiction which mandates the separation of powers, the characterisation of issues as justiciable, and falling within the province of the administration of justice, is, unavoidably, a judicial task. Even if it is true that there is no dispute that is inherently justiciable, the Constitution provides and requires that there be an area known as the administration of justice to be carried out by judges, subject only to Article 37. The courts have been appropriately cautious and have refrained from making overbold assertions of the proper scope of the administration of justice and have proceeded, instead, by way of part broad definition, part analogy, and part description.
45. The development of administrative law in Ireland has tended to reflect some of these influences, albeit with some significant differences. Dicey’s teachings were, perhaps, never received as reverently here and, indeed, the constitutional developments of the early 20th century were a direct repudiation of some of the views he espoused. Nevertheless, the administration of justice required under Article 64 of the 1922 Constitution to be carried out in courts was the common law system and, therefore, the conceptual difficulties of fitting the development of adjudicative administrative bodies into the constitutional system remained. At the same time, large-scale administrative bodies did not meet with the same suspicion or scepticism in Ireland. The pre-independence land purchase schemes which were continued post-independence were massive administrative undertakings which transformed land ownership in Ireland in a way which was broadly successful. The major State enterprises established by statute in the aftermath of independence and given extensive statutory powers, like the Electricity Supply Board and Bord na Móna, tended to be viewed positively as symbols of the new State rather than as the encroachment of the administration in the field of individual enterprise. The field of industrial relations was certainly smaller than that in the neighbouring jurisdiction, and perhaps less fractious. It was, nevertheless, also affected by international developments and the increasing trend towards providing individuals with legally enforceable protection of employment. Irish law therefore showed some of the same strands as were discernible in other jurisdictions: the development of administrative agencies; the increased role of the State; a move towards individual dispute resolution in the industrial relations sector; and a significant expansion of the role of the judicial review. Nevertheless, there were differences of both detail and emphasis. More importantly, Ireland — in common with jurisdictions such as Canada and Australia — had adopted a constitution which required the administration of justice to be carried out in courts. The question, therefore, of how the proliferation of administrative agencies which required bodies to resolve disputes was to be reconciled with the fact that the administration of justice was to be carried out in courts and, at least by implication, nowhere else was something that had to be resolved as a matter of law rather than abstract theory. The foregoing is a necessarily broad-brush sketch of a number of complex developments in Ireland and elsewhere, but it may provide a useful backdrop against which to consider the developing case law and legislation.
46. While the question of the essential function of the administration of justice takes on a particular significance with the coming into force of the 1922 Constitution, a convenient starting point may be a decision in 1902: R. (Wexford County Council) v. Local Government Board for Ireland [1902] 2 I.R. 349. The case concerned the question of whether a body was amenable to certiorari, but in the course of his judgment, Palles C.B. said:-
“I have always thought that to erect a tribunal into a “Court” or “jurisdiction,” so as to make its determinations judicial, the essential element is that it should have power, by its determination within jurisdiction, to impose liability or affect rights. By this I mean that the liability is imposed, or the right affected by the determination only, and not by the fact determined, so that the liability will exist, or the right will be affected, although the determination be wrong in law or in fact. It is otherwise of a ministerial power.” (Emphasis in original.)
47. This passage was much-quoted in a number of Australian cases on the judicial power, and captures one element, at least, of the administration of justice: the ability to make binding determinations affecting rights and imposing liabilities. Article 64 of the Irish Free State Constitution, enacted in 1922, provided:-
“The judicial power of the Irish Free State (Saorstát Éireann) shall be exercised and justice administered in the public Courts established by the Oireachtas by judges appointed in manner hereinafter provided. These Courts shall comprise Courts of First Instance and a Court of Final Appeal to be called the Supreme Court. The Courts of First Instance shall include a High Court invested with full original jurisdiction in and power to determine all matters and questions whether of law or fact, civil or criminal, and also Courts of local and limited jurisdiction, with a right of appeal as determined by law.”
48. These provisions fell to be analysed in Lynham v. Butler (No. 2), which was a further round in the bitter struggle between the parties which had already generated a number of judgments of the Superior Courts and given rise to a real political crisis. The plaintiff was entitled to the fee simple estate in extensive lands at Mount Seskin, County Dublin, subject to a life estate in favour of one Mary MacInerney. Mrs. MacInerney had let the property to the Reverend Michael Butler at an annual rent for the duration of her estate, namely for her life. She died in 1924, and the plaintiff sought possession of the lands. The Reverend Dr. Butler contended, however, that as of the date of the passing of the Land Act 1923 — which was August, 1923, and thus predated the death of Mrs. MacInerney — he held the lands under a tenancy within the meaning of the Land Act 1923 and, accordingly, was entitled to the benefit of the Act which had the effect of divesting the landlord of his estate in favour of the occupying tenant. The Judicial Commissioner of the Land Commission (Wylie J.) had made an interim ruling that the lands constituted a holding to which the 1923 Act applied. The High Court dismissed the plaintiff’s claim for ejectment, which decision was upheld by the Supreme Court ([1925] 2 I.R. 82 (High Court) and [1925] 2 I.R. 231 (Supreme Court)).
49. The plaintiff then sought to appeal to the Privy Council, which granted leave to appeal. This decision caused public consternation because it appeared inconsistent with the understanding of the Irish government of the terms of the Treaty negotiations and the circumstances in which appeal to the Privy Council would be permitted. The potential crisis was only averted by the stratagem of securing the passage by the Oireachtas of the Land Act 1926, confirming the interpretation of the 1923 Act adopted by the Supreme Court with the effect of rendering the appeal to the Privy Council moot. Viscount Cave L.C. was forced to acknowledge that the tactic was “ingenious and effective” and the appeal was withdrawn.
50. This much of the litigation has its own place in Irish history of the early 20th century (see e.g. T. Mohr, Guardian of the Treaty: The Privy Council Appeal and Irish Sovereignty (Dublin: Four Courts Press, 2016)). However, the dispute between Mr. Lynham and the Reverend Dr. Butler continued to rage. The Land Commission had published a provisional list of lands, including the lands in question, and Mr. Lynham had given notice of objection. The Lay Commissioners disallowed his objection. Mr. Lynham’s appeal to the Judicial Commissioner was then postponed pending the outcome of the appeal to the Privy Council. In the aftermath of that episode, Mr. Lynham then raised an additional ground of objection: that the letting was one for temporary convenience and was not captured by the Land Act of 1923. In the words of Kennedy C.J. in the Supreme Court, Mr. Lynham had, up to this point, been uniformly unsuccessful in all his proceedings, but now a complete reversal of his fortunes took place. The Judicial Commissioner, Wylie J., upheld the objection that the tenancy was a letting for temporary convenience, and that decision was, in turn, upheld by the Supreme Court. At that point, the Reverend Dr. Butler relinquished possession of the lands to Mr. Lynham.
51. However, even then, the dispute between the parties was not over. Mr. Lynham initiated further proceedings, Lynham v. Butler (No. 2), which sought to recover the sum of £1,600 being damages for trespass and mesne rates in respect of the occupation by the Reverend Dr. Butler of the lands between the expiration of the tenancy and the date upon which he had relinquished possession of the property. The Reverend Dr. Butler presponded by erecting a barrage of defences to this claim. For present purposes, however, the significance of the case is the claim made on his behalf that the Land Commission, other than the Judicial Commissioner, was an “illegal and unconstitutional tribunal and that the adjudication referred to was made wholly without jurisdiction and in violation of the Constitution of Saorstát Éireann” on the grounds that a decision of the Lay Commissioner was an administration of justice required under Article 64 to be carried out by a court. If so, it was contended, there could not be a valid appeal from an unconstitutional tribunal so that the orders of the Judicial Commissioner and the Supreme Court on appeal were also void.
52. It is of some significance that counsel advancing this argument was George Gavan Duffy S.C., a member of the Treaty delegation, and later to become President of the High Court. The argument of counsel is set out in some detail in the report. The exercise of judicial power and the administration of justice in Saorstát Éireann depended on the Constitution, and Article 64 imposed a personal and inalienable trust upon the judges appointed under Article 68 and they alone were authorised to exercise the judicial power of the State in the public courts established by the Oireachtas. The Lay Commissioners of the Land Commission could not be considered to be judges and, accordingly, could not exercise judicial power. Before the creation of Saorstát Éireann, the Land Commission was a court of record under the Land Law (Ireland) Act 1881 with full power to hear and determine all matters whether of law and fact, and was moreover immune from restraint by any court and from certiorari. The exercise of power by the Land Commission prior to the coming into force of the Free State Constitution had been described as an “exercise of judicial power” in R. (Lord Rossmore) v. Irish Land Commission [1894] 2 I.R. 394, and s. 24 of the Irish Land Act 1903 had been stated by Palles C.B. in In Re Talbot Crosbie’s Estate [1905] 1 I.R. 570 to have conferred “a jurisdiction eminently judicial”. Gavan Duffy argued that the Constitution of Saorstát Éireann created a wholly new constitutional position as regards the judiciary and the exercise of judicial power; the powers and duties of the Land Commission were merely transferred to commissioners appointed under the Land Law (Commission) Act 1923 and it became unconstitutional and illegal for the Land Commission to exercise many of their former powers. A divisional court of the High Court held that the plea was inadmissible on the grounds that the defendant could not be heard to impeach the validity of the order of the Supreme Court. The matter was appealed to the Supreme Court, which addressed the central argument in much greater detail, with each member of the court delivering a separate judgment.
53. The judgment most commonly cited is that of Kennedy C.J. He referred to Article 64 of the Free State Constitution and Article 3, s.1 of the U.S. Federal Constitution which provides that “[t]he judicial power of the United States shall be vested in one Supreme Court and in such inferior courts as the Congress may from time to time ordain and establish” which was, in turn, reflected in the Commonwealth of Australia Constitution Act (1900) 63 & 64 Vict. c. 12, s. 71 of which provided that “[t]he judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction”. Kennedy C.J. referred to some of the definitions of the judicial power contained in the decisions of the U.S. Supreme Court and of the High Court of Australia. He put forward his own synthesis of the definitions which, nevertheless, he stated were “by way of description rather than of precise formula”. A central passage of his judgment occurs at pp. 99 to 100:-
“In the first place, the Judicial Power of the State is, like the Legislative Power and the Executive Power, one of the attributes of sovereignty, and a function of government. (See Article 2 of the Constitution.) It is one of the activities of the government of a civilised state by which it fulfils its purpose of social order and peace by determining in accordance with the laws of the State all controversies of a justiciable nature arising within the territory of the State, and for that purpose exercising the authority of the State over person and property. The controversies which fall to it for determination may be divided into two classes, criminal and civil. In relation to the former class of controversy, the Judicial Power is exercised in determining the guilt or innocence of persons charged with offences against the State itself and in determining the punishments to be inflicted upon persons found guilty of offences charged against them, which punishments it then becomes the obligation of the Executive Department of Government to carry into effect. In relation to justiciable controversies of the civil class, the Judicial Power is exercised in determining in a final manner, by definitive adjudication according to law, rights or obligations in dispute between citizen and citizen, or between citizens or the State, or between any parties whoever they be and in binding the parties by such determination which will be enforced if necessary with the authority of the State. Its characteristic public good in its civil aspect is finality and authority, the decisive ending of disputes and quarrels, and the avoidance of private methods of violence in asserting or resisting claims alleged or denied. It follows from its nature as I have described it that the exercise of the Judicial Power, which is coercive and must frequently act against the will of one of the parties to enforce its decision adverse to that party, requires of necessity that the Judicial Department of Government have compulsive authority over persons as, for instance, it must have authority to compel appearance of a party before it, to compel the attendance of witnesses, to order the execution of its judgments against persons and property. So much towards a definition of the term — “Judicial Power”.”
54. It is of some importance that the approach taken by Kennedy C.J., while descriptive, drew upon the decisions of other common law jurisdictions. Thus, he quoted with approval, and echoed, the opinion of the United States Supreme Court in Kansas v. Colorado (1907) 206 U.S. 46, 27 Sup. Ct. Rep. 655, that the judicial power “must be held to embrace all controversies of a justiciable nature arising within the territorial limits of the nation, no matter who may be the parties”. He also referred with approval to a then-recent opinion of the Privy Council delivered by Lord Sankey L.C. in Shell Company of Australia Limited v. Federal Commissioner of Taxation [1931] AC 275, noting that the Chief Justice of Canada had been a member of the panel. Kennedy C.J. also quoted a number of decisions of Griffith C.J. in the Australian High Court, including the statement (itself approved in Shell) in Huddart, Parker & Co v. Moorhead (1908) 8 C.L.R. 330, 357:-
“[T]hat the words “judicial power” … mean the power which every sovereign authority must of necessity have to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property. The exercise of this power does not begin until some tribunal which has power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action.”
55. Kennedy C.J. also quoted the observations of the same judge in The Waterside Workers’ Federation of Australia v. J.W. Alexander Limited (1918) 25 C.L.R. 434 that, without attempting an exhaustive definition of the term “judicial power”, it nevertheless “includes the power to compel the appearance of persons before the tribunal in which it is vested to adjudicate between adverse parties as to legal claims, rights, and obligations, whatever their origin, and to order right to be done in the matter”.
56. On the other hand, Kennedy C.J. also adopted the famous language of Lord Sankey L.C. that there may be ancillary bodies, tribunals, and even juries, who, even though they assume the style of tribunals or courts and sit on a dais adorned with the “trappings of Courts”, nevertheless do not pretend to the judicial determination of “justiciable controversies”. It is clear from these observations that Kennedy C.J. considered that the administration of justice involved the exercise of “the judicial power” and the determination of “justiciable controversies”, and that his description of the judicial power under the Free State Constitution was consistent with the approach he discerned in other common law countries. His approach, admittedly descriptive, emphasised the determination of justiciable controversies in accordance with law by definitive and binding adjudication enforceable by the State and, for that purpose, a court must have the capacity to compel attendance of parties and witnesses and to order the execution of its judgments.
57. Turning then to the case at hand, Kennedy C.J. considered that the Land Commissioners performed functions which were largely administrative in nature. They were “primarily” administrative bodies with ministerial (administrative) duties to perform. Some duties may require to be performed judicially in such a way as not to offend the canons of natural justice, but that did not convert a ministerial (administrative) act into a judicial one. The judicial power of the State was only invoked when there was an appeal to the Judicial Commissioners, and it was irrelevant if that was described as an appeal or case stated, as Kennedy C.J. noted at p. 105:-
“The Land Commissioners (other than the Judicial Commissioner) are, then, an administrative body of civil servants who are not Judges within the meaning of the Constitution and do not constitute a Court of Justice strictly so-called but who, in the performance of some of their duties, must act judicially, and who are always subject, in respect of any justiciable controversy arising in the course of their business, to the exercise of the Judicial Power of the State for the determination of such controversy by one of the Judges of the High Court that the State assigned to act as Judicial Commissioner for the purpose.”
58. In later years Kennedy C.J.’s judgment has been regularly cited, but it is worth noting both FitzGibbon and Johnston JJ. delivered concurring judgments. FitzGibbon J. acknowledged Gavan Duffy’s “devastating argument”. FitzGibbon J. considered, in the first place, and somewhat controversially, that it was possible that the Land Act of 1923 could be deemed an implicit amendment of the Treaty permissible by way of ordinary legislation within eight years after the coming into force of the Constitution, as provided for by Article 50. However, he concluded that he was not satisfied that there was anything in the Act of 1923 which was repugnant to the Constitution; the distinction between the administrative functions of the Land Commission and the exercise of judicial power when the necessity for it arose was sufficiently observed by the legislation. The Land Commission must, of necessity, make decisions upon objections, but the safeguard of judicial authority was preserved by the right of appeal to the Judicial Commissioner. This was the exercise of giving a judicial decision upon a question which had been decided by the Land Commission and the exercise of its administrative functions. This bluntly pragmatic approach, that the judicial power is what the legislature says it is in any given case and it only arises in the context of the exercise of powers by the Land Commission when there is an appeal to the Judicial Commissioner, is nevertheless consistent with Kennedy C.J.’s conclusion.
59. Johnston J., for his part, laid emphasis on the fact that the adjudicative function of the Land Commission was only a part of its broader functions. He considered that the Land Commission was primarily and essentially an administrative body constituted for the purpose of carrying out great social work of the highest importance. It had, he considered, quasi-judicial powers merely ancillary to the administrative duties which it had been constituted to carry out. Having described the work of the Land Commission as “national work of creating a peasant propriety”, he considered it to be “administrative work of the highest importance and of the greatest responsibility” and that the quasi-judicial powers which had been conferred upon the Commission as ancillary to and in aid of the main work were quite negligible in importance.
60. Johnston J. considered Article 64 as a provision which would be very useful in the future as a check on encroachments by the legislature and executive upon popular rights and was, he thought, derived from the provisions of the U.S. Constitution embodying, in turn, Blackstone’s famous observation that “[i]n the distinct and separate existence of the judicial power … consists one main preservative of the public liberty, which cannot subsist long in any State, unless the administration of common justice be in some degree separated both from the legislative and also from the executive power”. Johnston J. observed that Blackstone could not have foreseen “the enormous increase in the administrative work of the executive power which was come in the nineteenth and twentieth centuries”. While the Constitution of the Irish Free State followed closely the concept of separation of powers, it had been found that this division of government functions could not “as a matter of practical polity, be carried out to its logical conclusion and can only take place as an approximation”. He referred to Professor C.K. Allen, a writer “who is the most skilful of the assailants of the system or tendency in politics which is incorrectly and rather unfairly called “bureaucracy””, but who was, nevertheless, forced to admit that it was “quite illusory” to ask courts to judge, at first instance, every minor matter of dispute, arising out of our “greatly extended and reticulated administration”. Johnston J. was clearly aware of the contemporary debate occurring in the United Kingdom in which Hewart and Allen were participants, and, while acknowledging the importance of maintaining the separate function of the judicial branch, nevertheless took a more nuanced view which sought to emphasise that the exercise of the powers of the Land Commission which involved the determination of legal disputes was ancillary to the overall project which was, undoubtedly, administrative in nature. This was a somewhat different approach to that taken by Kennedy C.J.
61. Johnston J. concluded that the work of carrying out the Land Purchase Code was an administrative task of national importance and of colossal magnitude. Part of that procedure required a form of ascertainment of lands to which the Acts applied. This must necessarily be left in the hands of the body or tribunal which was constituted to perform the entire task. He did not think that any other course was possible and was “absolutely satisfied that such ascertainment of the land is not, in any sense, an exercise of judicial power within the meaning of Article 64 of the Constitution. Any other result would have a most paralysing effect upon the whole work of Land Commission”.
62. There was, of course, little merit in the contentions made on the Reverend Dr. Butler’s behalf which involved a challenge to a jurisdiction which he had willingly invoked, participated in, and been prepared to benefit from, and in which he had even gone to the length of acquiescing in an unfavourable decision without raising any objection until the point when damages were sought. Furthermore, if his challenge was upheld, it would have led to another round in the already extended, bitter, and decade-long litigation between the parties, while significantly disrupting the work of the Land Commission. The judgments are important and useful attempts to address a difficult problem not unique to Ireland. However, it is possible to detect some uneasiness in the judgments with the analysis. In particular, there seems to be a tension between the suggestion in Kennedy C.J.’s judgment that all justiciable controversies are the preserve of the judicial power (p. 97) and his acknowledgment that a justiciable controversy may arise in the course of the business of the Land Commission (p. 105), and his later assertion that the issue only becomes a justiciable controversy when it is appealed to the Judicial Commissioner, thus invoking the jurisdiction of the courts (p. 105). The particular issue in the case involved the nature of the tenancy between the Reverend Dr. Butler and the life tenant. It is true that it was addressed for the first time before the Judicial Commissioner, but that was merely a consequence of the procedural development in the case. There was no doubt that it could have been raised before the Land Commissioners and have been determined by them. In any event, the fundamental issue of whether the land in question fell within the scope of the Land Commission’s powers was determined by the Land Commission and appealed to the Judicial Commissioners. It might be thought that there is some difficulty in reconciling the expansive definition of judicial power, and justiciable controversies, with the conclusion that these issues may be determined by the Land Commission, and which is not necessarily resolved by observing that it is a small part of the general business of the Land Commission. Of course, such a tension would not have posed a particular difficulty prior to 1922 since, as Johnston J. pointed out, there was no equivalent constitutional provision in the unwritten British constitution and, in any event, that constitution was capable of encompassing a number of anomalies such as the curial power of Parliament or the position of the Lord Chancellor. It was however, a more difficult question under the terms of the 1922 Constitution.
63. The uneasiness with the task of reconciling the rigid terms of a constitution which distinguished sharply between judicial and administrative powers and consigned the former exclusively to judges, with the practical requirements of a developing administrative state, could be detected in the inclusion of Article 37 in the new Constitution providing for the exercise of limited functions and powers of a judicial nature in non-criminal matters by persons other than judges or courts. This was widely understood as being directed towards settling the doubts in relation to the Land Commission, itself, and other substantial state bodies, such as the Revenue Commissioners, which exercised important functions in the new State (see, G. Hogan Origins of the Irish Constitution (Dublin: Royal Irish Academy, 2012) pp. 41 to 42). Indeed, Gavan Duffy appears to have had some involvement in the discussions on the new Constitution, and may have expressed views on this issue as well.
64. While the objective of Article 37 may have been clear, the language is not entirely helpful. It does not suggest a different category of power, but implies, instead, the continued existence of a distinction between the executive and judicial power, and merely provides, negatively, that nothing in the Constitution will invalidate the exercise of limited functions and powers of a judicial nature. However, the breadth and significance of the powers of the Land Commission itself, “a task of national importance and of colossal magnitude”, might suggest that Article 37 was of potentially broad application. Even if the powers and functions of a judicial nature exercised by the Land Commission which were henceforth to be validated by Article 37 were viewed only as a decision on the application of the relevant legislation, then such decisions were still of enormous significance for those involved, as the lengthy dispute between Mr. Lynham and the Reverend Dr. Butler, itself, testified.
65. Article 37 was applied at first instance in the decision Re Solicitors Act 1954. The Solicitors Act of 1954 had set up a new system for the disciplining of solicitors. A disciplinary committee of the Incorporated Law Society was to be established, whose members were to be approved by the Chief Justice, with power to strike off a solicitor and to order the solicitor to make restitution and satisfaction to an injured party as the committee should think fit. Traditionally, the power to strike off a solicitor had been a power exercised by the High Court in exercise of its supervisory jurisdiction over the profession. The High Court retained the power to strike off a solicitor in the aftermath of the 1954 Act. Maguire C.J., sitting in the High Court, held that the decision to strike off a solicitor was the determination of a justiciable controversy. However, as the power was limited in scope to the solicitors’ profession, and there was an appeal to the High Court, he considered the powers could be said to be of a limited nature and permissible under Article 37.
66. The Supreme Court reversed this decision, upholding the decision that the disciplinary committee was, indeed, exercising powers of a judicial nature, but concluding that they were not limited and saved by Article 37. While, as a matter of history, the discipline of members of the solicitors’ profession had traditionally been a matter for courts — and this, indeed, was the basis upon which later courts and commentators considered that the decision could be justified — the judgment of Kingsmill Moore J. took a notably broader approach. The power to strike off was a disciplinary and punitive power with the consequence that a struck-off solicitor committed a criminal offence if he or she practised thereafter. Striking off was, he considered, a more severe penalty, therefore, than imprisonment. By the same token, restitution and satisfaction could only be made in respect of something in the nature of misconduct which could include fraud and negligence. To that extent, Kingsmill Moore J. considered that it was impossible to distinguish the powers and functions of a committee to determine whether such misconduct had taken place and to order restitution and satisfaction from those of a court trying an action for fraud and negligence, unless, indeed, it was that the functions of the committee were broader. Accordingly, he considered that the committee was exercising a judicial power.
67. Moreover, Kingsmill Moore J. disagreed that the power of the committee could be saved by the provisions of Article 37. In an important passage in the judgment, at pp. 263 to 264, he said:-
“What is the meaning to be given to the word “limited”? It is not a question of “limited jurisdiction” whether the limitation be in regard to persons or subject-matter. Limited jurisdictions are specially dealt with in Article 34, 3, 4°. It is the “powers and functions” which must “limited,” not the ambit of their exercise. Nor is the test of limitation to be sought in the number of powers and functions which are exercised. The Constitution does not say “powers and functions limited in number.” Again it must be emphasised that it is the powers and functions which are in their own nature to be limited. A tribunal having but a few powers and functions but those are far-reaching effect and importance could not properly be regarded as exercising “limited” powers and functions. The judicial power of the State is by Article 34 of the Constitution lodged in the Courts, and the provisions of Article 37 do not admit of that power being trenched upon, or of its being withdrawn piecemeal from the Courts. The test is to whether a power is or is not “limited” in the opinion of the Court, lies in the effect of the assigned power when exercised. If the exercise of the assigned powers and functions is calculated ordinarily to affect in the most profound and far-reaching way the lives, liberties, fortunes or reputations of those against whom they are exercised they cannot properly be described as “limited”.”
He concluded:-
“Eventually the question whether any particular tribunal is unconstitutional must depend on whether the congeries that the powers and functions conferred on the tribunal or any particular power or function is such as to involve the pronouncement of decisions, the making of orders, and the doing of acts, which on the true intendment of the Constitution are preserved for judges as being properly regarded as part of the administration of justice, and not of the limited character validated by Article 37.”
Thus, the decision gave a broad reading to the judicial power under Article 34 in considering that the court should have regard to the nature of the power being exercised, rather than its form, but a very narrow reading to Article 37.
68. Cowan v. A.G. concerned an election petition which was brought in respect of a member of Dublin City Council. Under the Municipal Corporations Act 1882 and the Municipal Elections (Corrupt and Illegal Practices) Act 1884, judges nominated a practising barrister to be the election court to try the petition. The plaintiff sought a declaration that such an assignment was unconstitutional. Haugh J. referred to the provisions of the Adoption Act 1952, the Social Welfare Act 1952, the Air Navigation and Transport Act 1936, and the Tribunals of Enquiry (Evidence) Act 1921, all of which had authority to compel the attendance of witnesses and determine issues in accordance with law. He considered that there were many other tribunals of a similar nature. That was bound to be so, he considered, as “Article 37 of the Constitution expressly allows the existence of such tribunals provided they do not adjudicate on criminal matters”, and acknowledged that if it had it not been for the decision in Re Solicitors Act 1954, then the Disciplinary Committee of the Incorporated Law Society might also have been referred to as an example of an Article 37 tribunal. Haugh J. considered that, following the decision in Re Solicitors Act 1954, however, an election court could similarly be said to exercise far-reaching powers affecting the lives, liberties, fortunes, or reputations of those against whom they were exercised and, accordingly, could not be considered as limited functions and powers allowable by Article 37. The significance of this finding is, however, lessened by the fact that Haugh J. acknowledged that the election court could, at any point, investigate and try a person on a charge of an illegal or corrupt practice. Thus, it was a body which exercised powers in criminal matters assigned to it, which was something expressly prohibited by Article 37. Accordingly, he concluded that the election court, when presided over by a practising barrister, was unconstitutional as the administration of justice by a body other than a court, and by a person other than a judge.
69. The decisions in Re Solicitors Act 1954 and Cowan v. A.G. might have been expected to raise further questions in relation to the compatibility with the Constitution of a range of statutory bodies, and to suggest that the courts would take a much stricter approach to the provisions of Article 34 of the Constitution. However, as it transpired, the decisions marked a high-water mark from which subsequent cases have retreated.
70. In State (Shanahan) v. Attorney General [1964] I.R. 239 (“State (Shanahan)”), Davitt P. returned to the general question of the definition of the judicial power and observed, at p. 247:-
“I have certainly no intention of rushing in where so many eminent jurists have feared to tread, and attempting a definition of judicial power; but it does seem to me there can be gleaned from the authorities certain essential elements of that power. It would appear that they include 1, the right to decide as between parties disputed issues of law or fact, either of civil or criminal nature or both; 2, the right by such decision to determine what are the legal rights of the parties as to the matters in dispute; 3, the right, by calling in aid the executive power of the State, to compel the attendance of the necessary parties and witnesses; 4, the right to give effect to and force such decision, again by calling in aid the executive power of the State. Any tribunal which has and exercises such rights and powers seems to me to exercising the judicial power of the State.”
This approach did not, however, gain traction in the decided cases. Instead, a somewhat different test was formulated in the decision of McDonald v. Bord na gCon and which has tended to be the focus of subsequent cases.
71. The Greyhound Industry Act of 1958 (“the 1958 Act”) empowered the newly established Bord na gCon with the consent of the Irish Coursing Club, after the making of an inquiry, to make an exclusion order in relation to any person. That had the effect of excluding a person from being at a greyhound race track or authorised coursing meeting or any public sale of greyhounds. In the High Court, Kenny J. held that the effect of such an exclusion order was to give to the licensee of a racecourse the powers of an occupier, and to override the terms of the contract under which the person had gained access and prohibit entry upon a greyhound race track or authorised coursing meetings or of public sales of greyhounds. In form, it corresponded to an injunction which was a form of order made by courts as a matter of history, although it was not enforced by the executive power of the State. It deprived the person against whom it was made of the contractual right which he acquired otherwise by paying for admission to the track or meeting and imposed a penalty which Kenny J. considered was similar to that which the courts may impose, for it seemed there was a similarity between an exclusion order and a disqualification order made under the Road Traffic Acts.
72. Turning to the argument that the making of an exclusion order constituted an administration of justice, he said at pp. 230 to 231:-
“It seems to me that the administration of justice has these characteristic features:
(1) a dispute or controversy as to the existence of legal rights or a violation of the law;
(2) The determination or ascertainment of the rights of parties or the imposition of liabilities or the infliction of a penalty;
(3) The final determination (subject to appeal) of legal rights or liabilities or the imposition of penalties;
(4) The enforcement of those rights or liabilities or the imposition of a penalty by the Court or by the executive power of the State which is called in by the Court to enforce its judgment;
(5) The making of an order by the Court which is a matter of history is an order characteristic of Courts in this country.”
This formulation has obvious points of similarity to that offered by Davitt P. in State (Shanahan) and, indeed, the earlier discussion in Lynham v. Butler (No. 2) but has some points of difference. McDonald v. Bord na gCon introduces the question of the historical usage of the courts as a test of the judicial function, which is not mentioned in State (Shanahan), whereas the latter case includes consideration of the power to compel the attendance of witnesses as a feature of the administration of justice, which was also referred to in Lynham v. Butler (No. 2) and the cases considered therein, but does not figure in the McDonald v. Bord na gCon formulation.
73. Returning to the facts of the case, Kenny J. concluded that an exclusion order under s. 47 of the 1958 Act possessed all of the characteristics of the administration of justice. An exclusion order was made only when Bord na gCon was satisfied that some violation of the code of conduct had occurred. It was in the nature of the imposition of a liability and involved a determination that the person was guilty of some disreputable behaviour or conduct. Finally, an exclusion order seemed similar in form and effect to an injunction against trespass, and such an injunction was an order characteristic of the courts. Kenny J. acknowledged that the powers of the board were limited in the sense that it had no power to summon witnesses or administer an oath, and the refusal of witness to attend was not a contempt matter. Its functions were limited to those specified in the Act, but those considerations were irrelevant because of the test set out in Re Solicitors Act 1954: namely, that the question of whether a power was limited or not was determined by the effect of the assigned powers and if the exercise of those powers was calculated, ordinarily, to affect in the most profound and far-reaching way the lives, liberties, fortunes, or reputations of those against whom they are exercised, then they could not be described as limited.
74. The approach taken by Kenny J. in McDonald v. Bord na gCon is consistent with that taken in Re Solicitors Act 1954 in that it is broad in its approach to the question of whether the functions and powers exercised are judicial in nature. The many evident differences of power and procedure between proceedings under the Act and court proceedings were not considered relevant. By contrast, a narrow view of Article 37 was taken. Instead, the effect of an exclusion order was considered to be far-reaching and akin to an order of a civil court. However, the Supreme Court took a different view. While accepting the characteristics of judicial function set out by Kenny J., the Supreme Court concluded that the 1958 Act did not satisfy any of the requirements. At p. 244, Walsh J. said:-
“In the Court’s view the bodies or persons conducting the investigations under ss. 43 or 44, while bound to act judicially, are not constituted judicial persons or bodies nor do they exercise powers of a judicial nature within the meaning of Article 37 of the Constitution. This is an essential difference between the judgment of this Court and the judgment of Mr. Justice Kenny. Accepting the characteristic features of a judicial body set out by Mr. Justice Kenny these investigating authorities do not satisfy any of those requirements. In particular it is to be noted that the investigating authorities do not themselves by virtue of anything in ss. 43 or 44 affect any right or impose any penalty or liability on anybody. So far as the Board is concerned in the exercise of its powers under s. 47, or the Club in the exercise of its powers under the section, they are not constituted judicial bodies or do not exercise powers of a judicial nature as they would only satisfy one of the tests referred to. In the opinion of the Court the submissions that the Act in s. 47 violates the provisions of Articles, 34, 37, and 38 of the Constitution fails.”
75. It is somewhat surprising that the five-part test outlined by Kenny J. in McDonald v. Bord na gCon has come to be treated as a canonical checklist for the identification of the administration of justice to the exclusion of the discussion in the prior case law. The endorsement by the Supreme Court of the test in the judgment of Walsh J. did not involve any extensive consideration of it, or the case law, and, moreover, involved the paradox that the application of the test in the Supreme Court led to an almost polar opposite conclusion to that to which it had led the court which had advanced and constructed it. Indeed, it appears that Kenny J., as the chairman for the Report of the Committee on the Price of Building Land (1974), participated in the majority report, expressing the view that a function need not satisfy the McDonald test, but could still be the administration of justice under Article 34. This view appeared to underpin the recommendation in the report that the decision on inclusion of land in a designated area was a function which was required to be performed by the High Court.
76. Nevertheless, the five-part test in McDonald v. Bord na gCon has been repeated in a number of subsequent cases, albeit that there are few (if any) examples of legislative provisions which have fallen foul of it. Indeed, it may be that the decision of Kenny J. on the 1958 Greyhound Industry Act, so rapidly overturned by the Supreme Court, is one of the very few. It may be that the merit of the test (if it is such) was found to lie in its restrictive effect rather than any jurisprudential precision. It is, moreover, significant that this was not the only issue decided in McDonald v. Bord na gCon nor the proposition for which it is most commonly cited. In the Supreme Court, Walsh J. held that the exercise of the statutory power carried with it the obligation that the investigation be objective and carried out in accordance with the dictates of natural justice. This illustrates the fact that the development of the law in relation to the nature of the judicial power must be seen against the background of the increasing extent to which the law found that, even if the procedure fell outside the area of the administration of justice, the actions of administrative bodies in question were subject to judicial review which, over the succeeding decades, has become increasingly searching.
77. A further important case in the sequence is Keady. The plaintiff was subject to disciplinary proceedings under the Garda Disciplinary Regulations 1971, and the Commissioner decided to dismiss him from the force. The plaintiff challenged the decision on a number of grounds, including an argument in reliance on the decision Re Solicitors Act 1954 and the far-reaching effect test. It was argued that the decision to dismiss the plaintiff was a judicial function. Counsel argued that the decision to dismiss the plaintiff amounted to the administration of justice within the meaning of Article 34 and Article 37 and, because of its far-reaching consequences, it could not be considered to be the exercise of a limited function or power under Article 37. Only the State, by means of the courts being an organ of the State, could dismiss a member from An Garda Síochána. Significantly, counsel for the State argued in reply that such an argument would put at risk a number of bodies, e.g.: the Valuation Tribunal; the decision-making procedures within the Department of Social Welfare; the decisions of the Legal Aid Board; and, notably in the present context, the decisions of the Employment Appeals Tribunal. The Supreme Court unanimously dismissed the claim. McCarthy J. considered that dismissal from An Garda Síochána did not satisfy the McDonald v. Bord na gCon test. He also observed that it was hardly intended by the court in McDonald v. Bord na gCon to exclude the matters identified by Kennedy C.J. in Lynham v. Butler (No. 2), or indeed Davitt P. in State (Shanahan). He was reluctant to attempt a definition of judicial power and considered it easier, if less intellectually satisfying, to say in a given incidence whether or not the procedure was an exercise of such power rather than to identify a comprehensive checklist for that purpose save, however, that the requirement to act judicially was not an indicator of an exercise of the judicial power. This approach harked back to the descriptive approach of Kennedy C.J. in Lynham v. Butler (No. 2). McCarthy J. referred, in this regard, to the role of the court as a matter of history in the supervision and disciplining of solicitors. O’Flaherty J., concurring, went further. He considered that the case of solicitors “must be regarded as exceptional and, perhaps, anomalous and owes a great deal to the historic fact that judges were always responsible for the decision to strike solicitors off the roll”.
78. Keady represents, therefore, a significant retreat from the rigorous and demanding approach exemplified by Re Solicitors Act 1954 and the judgment of Kenny J. in McDonald v. Bord na gCon. The McDonald v. Bord na gCon test was treated as one guide to the identification of the judicial function which was, in any event, largely a matter of impression. The decision in Re Solicitors Act 1954 was confined to its own facts and treated as somewhat anomalous. Part of the justification for this more relaxed attitude to the significant decision-making functions of non-judicial bodies may, perhaps, be detected in the reference by O’Flaherty J. to the line of authority establishing that:-
“there is now in place a well-charted system of administrative law which requires decision-makers to render justice in the cases brought before them and sets out the procedures that should be followed, which procedures will vary from case to case and from one type of tribunal to another; and which, of course, are subject to judicial review”.
B. The Act of 1977
79. While Keady post-dates the enactment of the Unfair Dismissals Act 1977, it represents a point in the trajectory of the law that was already discernible in 1977. The question of employment law dealt with in that statute, and the wider context of industrial relations law, raises, in particular, issues in the context of the distinction between judicial bodies and administrative tribunals. The history of the interaction of the common law and the field of industrial relations is particularly strained. The individual, contractual, focus of what was at one time called the Law of Master and Servant was not easily reconciled with the collectivist approach of the developing trade union movement. Trade unions, with some justification, were resentful of the decisions of the common law courts in the U.K. of the late 19th and early 20th century, and tended to favour the use of their developing political power to obtain statutory amendments designed to reverse unfavourable decisions and strengthen the role of unions and their capacity to protect workers by collective action. In that respect, the Trade Disputes Act of 1906 was a response to and reversal of cases like the Taff Vale Case (Taff Vale Railway Co. v. Amalgamated Society of Railway Servants [1901] 1 K.B. 170) and others. The difficulties caused by industrial disputes were to be addressed by negotiation, arbitration, and conciliation, and if the law was to be involved, it was to establish specialist bodies to assist in that task, such, indeed, as the Labour Court established by the Industrial Relations Act 1946.
80. However, during the 20th century, there was an increasing international trend towards providing individual remedies for employees in respect of disputes concerning employment which would be binding and enforceable as a matter of right. This was obviously in the interest of employees, but was perceived as of general benefit to employers, and the public also, in that it tended to reduce the possibility that individual disputes about employment could create damaging general industrial disputes. As D. Ryan, Redmond on Dismissal Law (3rd edn., Dublin: Bloomsbury Professional, 2017) pp. 267 to 270 noted, recommendations of the International Labour Organisation and developments in the law of what was then the E.E.C. influenced the development of Irish law towards providing individual legally enforceable remedies for employment disputes, particularly relating to redundancy and dismissal.
81. The development of statutory bodies for the resolution of disputes, and the particular question of bodies having powers to provide remedies for individual employees in respect of redundancy and dismissal, poses obvious problems with the common law which distinguishes sharply between the judicial function for the determination of individual disputes and the performance of functions described as administrative, albeit that such functions may have been required to be performed judicially. Many of the cases from common law countries, including the Australian cases, some of which were noted in the judgments in Lynham v. Butler (No. 2), that considered the extent to which certain industrial relations bodies could be considered to exercise judicial power arose in this precise context.
82. Two cases which reached the Judicial Committee of the Privy Council during this period illustrate the type of issues which arose, and the developing international trend towards remedies provided by statute which could be enforced before non-judicial tribunals. In Saskatchewan Labour Relations Board v. John East Ironworks [1949] AC 134, the Privy Council reversed the finding of the Court of Appeal of Saskatchewan and held that a labour board empowered to order reinstatement of an employee, but to do so not just by the application of legal principles to ascertained facts, but by considerations of policy, was an administrative tribunal rather than a court. The Privy Council considered that there was “no better approach than to ask whether the dispute was of the sort that required determination by judges”. This was to find an echo in McCarthy J.’s observation in Keady that the matter is really one of impression rather than definition. Later again, in United Engineers Workers’ Union v. Devanayagam [1968] AC 356, the Privy Council, by a narrow majority, overturned the decision of the Supreme Court of Ceylon that a labour commissioner with power to order reinstatement of a dismissed employee was exercising the judicial power and ought to have been appointed by the judicial services commission. In significant contrast to the provisions of the Act of 1977, the commissioner was empowered to make such order as he considered just and equitable and the majority, while acknowledging the matter was not free from difficulty, considered that the general function of the Act was the resolving of industrial disputes rather than to give effect to legal rights. In an interesting judgment, the minority (Lord Guest and Lord Devlin) considered that judicial power was a concept capable of clear delineation and had to be since it was the basis of a constitutional requirement. Relying in part on the Australian cases of Huddart, Parker & Co v. Moorhead (1908) 8 C.L.R. 330 and The Waterside Workers’ Federation of Australia v. J.W. Alexander Limited (1918) 25 C.L.R. 434, referred to in Lynham v. Butler (No. 2) set out at paras. 54 and 55 above, they concluded that the judicial power was concerned with “the ascertainment, declaration and enforcement of the rights and liabilities as they exist or are deemed to exist at the moment the proceedings are instituted”, whereas the arbitral power in industrial disputes was to enforce what, in the opinion of the arbitrator, ought to be the respective rights and liabilities of the parties, which test they considered was satisfied. These cases illustrate the fact that the resolution of employment disputes in the field of industrial relations poses particular difficulties of definition and, moreover, that no clearer approach has emerged in the international jurisprudence than is to be found in the Irish case law.
83. The Unfair Dismissals Act 1977 was a significant development in Irish law. While it followed the precedent of the Redundancy Payments Act 1967 and, indeed, transferred the jurisdiction of the Redundancy Appeals Tribunal created by that Act to the Employment Appeals Tribunal created by the 1977 Act, it was of much wider impact. The Rights Commissioners and the Employment Appeals Tribunal had power to resolve disputes under the Redundancy Payments Act 1967, the Minimum Notice and Terms of Employment Act 1973, and the 1977 Act itself. The Act defined unfair dismissal and provided for redress by way of reinstatement, reengagement, or compensation not exceeding 104 weeks’ remuneration. Regulations could be made governing the procedure to be followed before the tribunal, the representation of parties attending, and the making of an award by the tribunal of costs and expenses. Section 10(4) of the Act provided for an appeal to the Circuit Court from a determination of the tribunal. Section 15 of the Act maintained the right of a person to recover damages at common law for unfair dismissal, but also provided that the initiation of a claim under the Act barred an entitlement to recover damages at common law and that proceedings at common law, similarly, precluded a claim for redress under the Act. Proceedings before a Rights Commissioner were to be conducted other than in public (s. 8(6)) but the E.A.T. was to sit in public. By the incorporation of the provisions of s. 21(2) of the Industrial Relations Act 1946, and s. 39(17) of the Redundancy Payments Act 1967, the E.A.T. was given power to summon witnesses and to order them to produce documents and was given power to take evidence on oath, and a failure or refusal to give evidence was an offence. Witnesses before the E.A.T. had the same privileges and immunity as a witness before the High Court.
84. For present purposes, the most noteworthy feature of the Act was its procedure for enforcing the determinations of the tribunal. Section 10(1) of the 1977 Act provided for the procedure that, if an employer failed to carry out a determination of the tribunal within six weeks from the date the determination had been communicated, the Minister for Labour could, if he or she thought it appropriate, institute and bring proceedings to the Circuit Court for redress under the Act. Such proceedings would be a de novo hearing, and the Circuit Court was free to make such order as it thought fit within the jurisdiction created by the Act. Subsequently, however, s. 11(3) of the Unfair Dismissals (Amendment) Act 1993 provided for enforcement of a determination of the tribunal by application to the Circuit Court, by either the employee or the Minister and it was provided that the court:-
“shall, on application to it in that behalf … without hearing the employer or any evidence (other than in relation to the matters aforesaid) make — (I) an order directing the employer to carry out the determination in accordance with its terms”.
If the determination directed reinstatement or reengagement, and the court considered it appropriate to do so, the court could make an order of compensation in lieu. The “matters aforesaid” referred to were that a determination had been made and had not been complied with within the statutory period. This mechanism, with the substitution of the District Court for the Circuit Court, appears to be the precedent for the procedure applicable generally under the 2015 Act.
85. It should be noted that, since its enactment, questions have been raised about the compatibility of the 1977 Act with the Constitution, both in the terms of the Act as originally drafted, and as amended in 1993. Thus, the most recent edition of Kelly: The Irish Constitution (5th edn., G.W. Hogan, G.F. Whyte, D. Kenny, & R. Walsh eds., Dublin: Bloomsbury Professional, 2018) (“Kelly”), at para. 6.4.100, states:-
“The former Employment Appeals Tribunal (which was not composed of judges) was established by s 39 of the Redundancy Act 1967 as an amended by s 18 of the Unfair Dismissals Act 1977. Under the latter Act, the Tribunal was empowered, inter alia, to award compensation to dismissed employees up to a maximum sum of an amount representing two years’ salary. The tribunal would appear to have been administering justice and it must be an open question as to whether its powers were ‘limited’ within the meaning of Article 37. In Government of Canada v Employment Appeals Tribunal, McKenzie J drew attention to these potential constitutional difficulties and given that the powers of the Employment Appeals Tribunal are now exercised by adjudication officers pursuant to the Workplace Relations Act 2015, it might be thought that similar constitutional concerns may exist in relation to the powers of these officers.”
86. Professor James Casey’s Constitutional Law of Ireland, noted that the possible constitutional difficulties appear to have influenced the form of the Unfair Dismissals Act 1977. He considered that the power conferred on the E.A.T. appeared judicial, and plainly analogous to the courts’ traditional jurisdiction over contracts, and that it was open to question that it could be said to be limited. However, the machinery for enforcement involved an application to the Circuit Court. The Circuit Court was not bound by the E.A.T.’s determination either as to entitlement to redress or the form it should take. These observations, it should be said, do not appear to have taken account of the terms of the Unfair Dismissals (Amendment) Act 1993. However, he went on to consider the jurisdiction of the Labour Court under the Employment Equality Act 1977. The Labour Court was empowered to make an order for the enforcement of an earlier determination and failure to carry out such an order was a criminal offence. He commented that it was yet to be determined if the limitation on the power of the E.A.T. to make binding orders rendered it constitutional.
87. A similar analysis was offered in D.G. Morgan, The Separation of Powers in the Irish Constitution (Dublin: Round Hall Sweet & Maxwell, 1997). Professor Morgan considered that the provisions of s. 10 of the 1977 Act requiring enforcement by the Circuit Court at the suit of the Minister where the Circuit Court was free to make its own decision, after a full hearing, was sufficient to “probably make it constitutional”. Again, this passage does not address the effect of the amendment made in 1993. By contrast, however, he considered (at p. 106) that the Labour Court’s authority under the Employment Equality Act 1977 may fail the essential test (which is whether the non-court’s initial decision is final or whether it can be re-agitated or reheard before a court) and concluded that it was quite possible that the making of an order such as that authorised by the Employment Equality Act 1977 by a body other than a court was unconstitutional.
88. It is somewhat puzzling that different methods of enforcement were provided for under closely-related legislation operating in the same field, and more surprising, perhaps, that the evolution of the legislation has been towards reducing almost to vanishing point the degree to which the determinations of the respective tribunals in the field of labour law were capable of review or appeal to a court, even though those features had been identified as probably essential to the constitutional validity of the structure. The view expressed by these distinguished authors has not been doubted in any of the subsequent case law, and no decision can be pointed to which suggests a different analysis. Nevertheless, the legislative evolution has been consistently to expel from the structure any possibility of review or confirmation by a court until, eventually, the 2015 Act adopted a single minimalist structure of a decision by an authorised officer capable of appeal to the Labour Court (with an appeal on a point of law to the High Court), enforceable by ex parte application to the District Court, whose powers were limited to considering if the determination had indeed been made and not complied with within 56 days of notification and, in cases of where reinstatement or reengagement had been ordered, considering whether compensation should be ordered instead. It is this feature of the Act, however, alone, which the High Court found meant that the procedure did not satisfy the fourth limb of the McDonald v. Bord na gCon test and thus was not repugnant to the Constitution.
C. The McDonald v. Bord na gCon Test
89. Much of the recent case law has involved a close, if unrewarding, analysis of the five-part test in McDonald v. Bord na gCon, and this case was argued both in the High Court and in this court by reference to it. But it is, I believe, helpful to look at the issue in a much broader perspective. The Irish Constitution has, since 1922, entrenched a tripartite separation of powers. However, although Montesquieu drew on what he believed to be the example provided by the British system, that system, large elements of which we inherited in 1922 and maintained thereafter, did not have a clear-cut separation between the powers of the executive, legislative, and judicial branches, and the system established under the Irish Constitution, although more rigorous, has nevertheless provided for an interaction and interdependence between the branches. In our system, where the executive sits in parliament, the executive normally controls the legislature and has the power of appointment of the judiciary. Legislation, for its part, can alter the common law and amend or abolish causes of action or create new ones. Neither the 1937 Constitution nor its predecessor contained any definition of the judicial power (or, indeed, the executive or legislative powers) and has not been interpreted in such a way that each branch may only exercise powers defined as appropriate for that branch. Courts sometimes perform tasks which can be considered administrative, such as licensing, or wardship, or certain functions under the Companies Acts. For example, under s. 54(7) of the Fisheries Act 1980, it was possible to appeal to the High Court from an order of the Minister for the Marine designating an area as suitable for aquaculture if he considered it in the public interest to do so, which does not appear to be an intrinsically judicial task or one which gives rise to any issue of law: Courtney v. Minister for the Marine (Unreported, High Court, O’Hanlon J., 21st of December, 1988). On the other hand, bodies established by legislation or by the executive may be required to perform functions apparently judicial in nature, or at least be required to act judicially in certain circumstances. There are areas which move between the branches. Originally, the questions of restrictive practices and monopolies were seen as administrative functions requiring economic and policy expertise. With the passage of the Competition Act 1991, such matters have become justiciable.
90. In Lynham v. Butler (No. 2), Kennedy C.J. stated that the constitutional assignment of the administration of justice of the courts and judges would be jealously guarded. However, the subsequent decisions of the courts have produced few examples of legislation being struck down as a wrongful exercise of or interference with the judicial power, and the case law has shown little enthusiasm for an expansive reading of that power. Increasingly, the decision in Re Solicitors Act 1954 appears as an outlier rather than establishing a principle. By the same token, the fears expressed, even in Lynham v. Butler (No. 2), that the other branches would seek to remove or whittle away the courts’ jurisdiction have not been realised either. As counsel for the Attorney General pointed out, the 20th century has seen a steady expansion of the reach of the law and, accordingly, of the courts. The great expansion in the role of the State in the 20th century, and the transfer by the legislature of functions, which previously might have been considered to be matters for the executive branch alone, to newly-created statutory bodies, and the concurrent general expansion of the power of judicial review of administrative action, has meant that the boundaries of law’s empire, as it were, extend much further than might have been contemplated in 1922 or 1937. Looked at functionally, therefore, rather than from the perspective of legal theory, the decisions of the courts in this field have tended to a pragmatic outcome in which the assignment of the administration of justice to the judicial branch has not operated to hinder these developments, even if that has not been achieved by reasoning which, to borrow the language of McCarthy J. in Keady, is not always necessarily intellectually satisfying or elegant, although, in that regard, it must be said that the approach of the case law is firmly in line with international comparators.
91. It is worth recalling that Kenny J., in setting out the test in the High Court in McDonald v. Bord na gCon, would have applied it in a very broad way to find that the powers of Bord na gCon to investigate complaints and make an exclusion order enforceable by a racecourse operator nevertheless constituted the administration of justice. However, almost from the time of the decision of the Supreme Court in that case, the test, while remaining in a form identical to that advanced by Kenny J., has been interpreted and applied narrowly, with the effect that few, if any, provisions have fallen foul of it. To that extent, it perhaps owes its longevity to the fact that, by emphasising the historical, it tends to exclude novelty and thus achieves a desired balance and avoids any undue restriction on the capacity of the State to provide for a range of decision-making functions with particular expertise, or informal procedures, or both. However, the treatment of the criteria in McDonald as a checklist which must be minutely and precisely complied with risks missing the wood for the trees. It also encourages an approach to drafting that could remove proceedings from the field of the administration of justice because of some small, and in truth insignificant, deviation from the checklist. That would be a triumph of form over substance. But, whatever the conceptual difficulties of delineating the precise borders of the judicial function, the Constitution requires that there be an area that is and will remain the exclusive domain of the administration of justice in courts by judges, or in Article 37 tribunals. It is important to apply any test, therefore, with an understanding of the substance it is meant to determine.
92. It may be preferable, therefore, as indicated by McCarthy J. in Keady, to treat McDonald v. Bord na gCon as part of a general approach to the issue alongside, rather than replacing, the observations in Lynham v. Butler (No. 2) and those in State (Shanahan), and as indicating general features which tend to show the administration of justice, rather than as a definite and prescriptive test. As one commentator observed of the test, it:-
“provides only a descriptive summary of the everyday workload of the contemporary court. An ex post facto overview of the average judicial caseload, it does not offer a suitably prescriptive analysis of the core concepts of the judicial function. The logic of Kenny J.’s position is hopelessly circular, relying on the current nature of the court’s activities to define its function into the future. The McDonald criteria reflect the judge’s estimation only of what the courts do, rather than what they ought to do. In this, it owes more to historical happenstance than conceptual coherence.” (E. Carolan, The New Separation of Powers: A Theory for the Modern State, (Oxford: Oxford University Press, 2009)).
93. The features in McDonald v. Bord na gCon are closely linked and, to some extent, overlap. They do identify something central to the administration of justice and may be understood as indicating features of importance rather than establishing a statutory checklist. Some, indeed, of the features may be more important than others, and it may also be relevant to consider not merely whether the provision satisfies the particular heading, but also to assess the extent to which it does so.
94. The first, second, and third features are closely related since they identify a dispute about legal rights, its resolution, and determination. The fourth is a logical extension of the third, since the resolution of the dispute must not be dependent upon the agreement of the parties, but must be capable of enforcement in cases of refusal of the losing party to comply. The fifth feature is, however, quite different. Viewed and applied narrowly, it has the effect of confining judicial power to the areas of the traditional causes of action and proceedings and fossilising the administration of justice in the form of the business of courts in the mid-20th century. The novelty of any new provision (which is, after all, the raison d’être of any new scheme) becomes a shield against challenge, no matter how completely the provision might fit the preceding limbs of the test. This feature can give rise to a rather sterile debate as to the extent to which it is necessary that the order made must be characteristic of the courts of this country. In this case, for example, it might be argued that an order for reinstatement is merely a type of order of specific performance, which is a characteristic feature of the courts of equity. On the other hand, it is argued that such an order is a clear departure from the traditional law, which held that, almost without exception, a contract of service could not be made the subject of an order for specific performance. It is difficult to see either argument as compelling.
95. I think this feature is best understood in a broader sense and as emphasising the importance of the existing jurisdiction of the courts, and that any provision subtracting from that jurisdiction, or creating a parallel jurisdiction which might render the courts’ traditional jurisdiction defunct, is one which should be closely scrutinised by the courts for compatibility with the Constitution. A distinctive feature of the courts system established by the Irish Constitution is that there is no structural distinction between administrative courts and the ordinary courts. The ordinary courts system, moreover, deals with every type of dispute, whether as to breaches of the criminal law, public law, or private law issues. It is noteworthy that, although in 1937 there were Continental models which were considered and available, the Constitution did not create a constitutional court to exercise the jurisdiction explicitly conferred under the Constitution to declare acts of legislation void, but — deliberately, it seems — assigned that role to the ordinary courts, which dealt with the full range of disputes, both public and private, and which, indeed, had full and original jurisdiction. It may be speculated that this assignment of jurisdiction in respect of possible repugnancy was, in part, a recognition that the legal and analytical skills, and courtroom procedures, utilised to resolve disputes of public and private law were considered to be beneficial, and that respect for the decisions of the courts on such common law matters cross-subsidised, as it were, the constitutional adjudication and, perhaps, vice versa. There is, moreover, a critical mass required for the functioning of the courts system, which normally involves a breadth of subject matter. It is not surprising, therefore, that subtraction from such jurisdiction would be scrutinised closely, not just because of the fear of the incremental whittling away of the jurisdiction of the courts, and thus the administration of justice, to which Kennedy C.J. alluded in Lynham v. Butler (No. 2), but also because of the possible limitation of the capacity of the courts to perform the role assigned to them by the Constitution and which involves a range of jurisidictions. While there has never been a suggestion that the whittling away of court jurisdiction was desired by the legislative or executive branches, constitutional provisions, like constitutional rights, as Ó Dálaigh C.J. put it in McMahon v. A.G. [1972] I.R. 69, are established not merely to deal with the problems of the past, but also to guard against the improbable — but not to be overlooked — perils of the future.
96. The administration of justice is not, however, to be defined by, or limited to, those areas traditionally dealt with by the courts. The proper scope of the administration of justice is not determined simply by analogy with what was done by the courts as a matter of history, and still less by the form of orders traditionally made by them. It may be possible to say, even if no single test can be advanced, that an area is something intrinsically within the scope of the administration of justice. The existence of boundary disputes does not prevent agreement that some areas are definitively within one country or another. In any event, the Constitution establishes an area which is the administration of justice, and the courts must uphold that command. Even if it is considered an impossible task, as a matter of pure theory, to define with precision the exact boundaries of the administration of justice or to offer a single infallible litmus test, we can still identify areas which can be agreed to be part of the administration of justice. That is what the first four features of the McDonald v. Bord na gCon test, and the broader observations in Lynham v. Butler (No. 2), and State (Shanahan) are directed towards. It would be a narrow and self-defeating approach, however, to find that a provision that comprehensively satisfied these features was nevertheless not the administration of justice because the form of order made in the proceedings was something novel. I would, therefore, be reluctant to give decisive weight to this feature, and would, in any event, take a reasonably broad view of what it requires.
97. Turning to this case, it is appropriate to deal, at this point, with the cross-appeal of the Attorney General, which sought to overturn Simons J.’s finding that the fifth limb of the McDonald v. Bord na gCon test was satisfied in this case. It was argued that the reliefs available under the 2015 Act incorporating the Unfair Dismissals Act 1977 left intact the traditional common law action for wrongful dismissal, and created a remedy that was entirely novel and independent of the contract of employment. The relief available was not merely innovative but included reliefs which, as a matter of common law, could not be ordered in the context of an employment relationship.
98. This issue is one of focus and degree. Looked at up close, the differences between a claim for unfair dismissals in the W.R.C. and an action in court are significant. But, this risks elevating the unsurprising fact that new legislation effects a change in the pre-existing law into a decisive test. If we view the picture with some distance and perspective, it appears to me that Simons J. was correct. First, it is necessary to recall that the parties agree that the first three limbs of the McDonald v. Bord na gCon test are satisfied. A jurisdiction is established to make binding determinations of legal disputes between private parties according to law. That, in itself, is normally a core business of the courts. Once invoked by a claimant, the jurisdiction is established. An employer is not free to decline to participate, and if he or she refused to participate, that does not prevent the case proceeding or a decision being made. The adjudication officer is, by statute, independent in the performance of his or her functions (s. 40(8)), has power to compel the attendance of witnesses to give evidence (s. 41(10)), or provide documents, and failure to comply is an offence (s. 41(12)). The adjudication officer gives the parties an opportunity to “be heard” and to “present … any evidence relevant to the complaint or dispute” (s. 41(5)), and makes “a decision” in relation to the complaint “in accordance with the relevant redress provision” (s. 41(5)). A complaint may be either that there has been a “contravention of a provision” specified in Part 1 or 2 of Schedule 5 or a dispute as “to the entitlements of the employee under an enactment specified in Part 3 of Schedule 5” (s. 41(2)). (All emphases added.) The decision of the adjudicating officer is binding on the parties, and there is mechanism for enforcement under s. 43(1) to which it will be necessary to return. These provisions create a machinery for the determination and decision by an independent body of complaints seeking relief, as a matter of law, and which permits the adjudication officer to make a binding decision on such complaint which can be enforced against the losing party. In these respects, the process is indistinguishable from the determination of a legal dispute before a court. Indeed, it was accepted in these proceedings that the proceedings in the W.R.C. amounted to a “determination of … civil rights and obligations” for the purposes of Article 6 of the E.C.H.R. In that context, the fact that the Unfair Dismissals Act 1977, for example, provides for the remedy of reinstatement and reengagement does not take this procedure outside the category of administration of justice. In the first place, an order of compensation under the Act is an order which, as a matter of history, was made by courts, and redress by way of reinstatement or reengagement is akin to an order of specific performance which is a familiar type of order made by the courts, even if, as a matter of common law, it would rarely — if at all — be made in the context of an employment relationship. If, for example, the 1977 Act had merely implied into all contracts of employment an entitlement not to be unfairly dismissed, and permitted a court to make orders of reinstatement or reengagement, such proceedings could not be said to be incompatible with or alien to the functions of a court. The form of order made by a decision pursuant to the 2015 Act is a final order determining the dispute and awarding redress of a kind known to the courts. That is, in my view, sufficient to comply with what is addressed under the fifth limb of the McDonald v. Bord na gCon criteria.
99. I would not, however, place much reliance on the fact that, under the 1977 Act, all these orders may be made by the Circuit Court on appeal, or by the District Court on an application for enforcement. This, perhaps, does show that there is nothing fundamentally incompatible with the traditional forms of court procedure in permitting such orders to be made. But, it does not show that these orders were orders which, as a matter of history, were traditionally made by courts. I think that inquiry must be made outside the Act giving power to make the orders. Otherwise, it would lead to the somewhat curious conclusion that the Act did not satisfy this aspect of the test in 1977 just after it was enacted, but did at some later point. As already indicated, I do not think this aspect of the criteria should be applied with undue precision. In Cowan v. A.G., Haugh J. was prepared to find that provision satisfied by the fact that the election court hearing a claim under the Municipal Corporations Act 1882 was doing the same work as the High Court had when hearing election petitions prior to 1882. However, as has been pointed out, jurisdiction to hear and determine election petitions was, itself, only conferred on the High Court in 1868; prior to that, all claims were heard by Parliament itself. The historical test is not, therefore, an infallible guide to what is or is not intrinsically a judicial function and the test must be applied with some flexibility. I consider that Simons J. was correct to conclude that it was satisfied here.
100.This brings us to the ground upon which Simons J., not without some doubt, found that a proceeding such as a claim for unfair dismissal under the 2015 Act did not constitute the administration of justice because of the provisions of ss. 43 and 45 in relation to enforcement. Section 43, it will be recalled, provided that if an employer failed to carry out the decision of the adjudication officer within 56 days from the date on which notice of the decision was given to the parties, the District Court, on the application to it by either the employee or the commission or with the consent of the employee, shall:-
“without hearing the employer or any evidence (other than in relation to the matters aforesaid) make an order directing the employer to carry out the decision in accordance with its terms”.
The only matters to be established before the District Court in such an application would be the making of the decision and the fact that such a decision had been made and notified in writing to the parties more than 56 days before the application. If these matters were established, then the District Court is obliged to make the order sought. The only discretion available to the court is that under s. 43(2), whereby in a case where reinstatement or reengagement had been made, the District Court could, in lieu of an order directing the employer to carry out that decision in accordance with the terms, make an order directing the employer to pay compensation of such amount as was just and equitable having regard to all the circumstances.
101.It is clear that this procedure is quite different from the enforcement mechanism available in relation to a court judgment. The decision of the authorised officer/W.R.C. is not enforceable of its own force. An application must be made to another entity — the District Court — to render the decision an order capable of being enforced, and it becomes enforceable, then, as an order of that court. Furthermore, the application for enforcement can be made by someone other than the party who obtains the decision, such as a trade union or, indeed, the Commission itself. While the decision of the authorised officer/W.R.C. becomes enforceable almost automatically, it is still necessary to satisfy certain proofs and, in the case of redress in the nature of reinstatement or reengagement, the District Court has certain discretion, although normally, it seems, in ease of an employee dealing with a recalcitrant employer, rather than designed to provide any assistance to the defaulting employer, who, after all, does not receive notice of the proceedings, and cannot attend or make submissions. Nevertheless, such an application may involve some evidence and independent decision-making, although the District Court cannot alter the determination of liability but may only select a different method of redress and assess that compensation. These are important features, although it must be said that the procedure is very far removed from the original enforcement provisions in the 1977 Act which required, in effect, a full rehearing before the Circuit Court. This, it will be recalled, was the feature which, at least in the view of academic commentators, was important in saving the provision from unconstitutionality.
102.Sections 43 and 45 can be usefully compared with the original procedure provided by s. 10 of the 1977 Act. The superficial structure of enforcement by separate court proceedings is retained, but in substance almost all capacity for independent decision-making has been removed, and, instead, an enforcement mechanism established that is as close to automatic as possible. Indeed, in doing so, the Act may create a certain problem. If the proceedings in the W.R.C. are not an administration of justice, then the proceedings in the District Court under ss. 43 and 45 may be viewed as a separate and distinct administration of justice. It is not impossible to have proceedings where the issues to be determined are narrow, and where, on proof of a very limited number of matters, an order may even be mandatory. For instance, in Dublin Corporation v. Hamilton [1999] 2 IR 486, Geoghegan J. found s. 62 of the Housing Act 1966 — which limited District Court intervention in an eviction from a local authority property to verifying that the local authority had furnished the requisite proofs — to be constitutional. However, it is unusual to permit such an order to be made adverse to another party on an ex parte basis with no capacity for the party affected to challenge or dispute the claim, or even know about it. See, in this regard, the judgment of this court in D.K. v. Crowley [2002] 2 I.R. 744, where the court held that the provisions of s. 4(3) of the Domestic Violence Act 1996 were unconstitutional in that the section permitted barring orders to be made ex parte and continued without a hearing, a system which breached the subject of the barring order’s constitutional rights to fair procedures. In V.P.G. Inc. v. Insurco International Ltd. [1995] 2 I.L.R.M. 145, McCracken J. held that a power under the Rules of the Superior Courts to make an order ex parte had to be understood as giving a right to the affected party to seek to set it aside, even if there was no express provision in the Rules to that effect. See also: Adams v. D.P.P. [2001] 1 IR 47; and Adam v. Minister for Justice [2001] 3 IR 53. The ex parte nature of the enforcement procedure is certainly problematic, but the Act was not challenged on that basis. Instead, reliance was placed on the fact that the procedure was so automatic that, although a court procedure was provided for, that did not permit the affected party to participate.
103.If this issue was whether the enforcement procedures under ss. 43 and 45 were analogous to the method of enforcement of a court decision, then the distinctions identified above could be of importance and, perhaps, decisive. However, the issue to which this heading of the criteria is addressed has to be seen in the broader context of the function sought to be defined, or at least described, by it. The question of enforceability of a decision is, indeed, a significant clue to its legal nature, since a decision which depends for its enforcement on the agreement of the parties, or on the decision of another body (indeed, a court) which can, moreover, decide whether or not to enforce it depending on whether it is, itself, satisfied that the decision is correct is a significant distance from the type of automatic enforceability a litigant achieves when they succeed in court. Even then, a pragmatist might observe that the vast majority of E.A.T. decisions pre-1993 determined disputes and were complied with without any formal enforcement, and, to that extent, were similar — if not indistinguishable — from court decisions.
104.The enforcement procedure provided under ss. 43 and 45 requires careful analysis. Structurally, it maintains the feature of resort to court for enforcement of the decision in the case of a failure to comply. However, enforcement is almost automatic, does not permit involvement by the losing party, and, on the presentation of formal proofs, is mandatory. While a court is the vehicle for enforcement, it is not employed for its capacity to administer justice fairly between opposing parties by reference to the law, but, rather, for access to the enforcement mechanism. The court process is conscripted in aid of enforcement of the decision of the W.R.C. In In Re Haughey [1971] I.R. 217 (“Re Haughey”), the Supreme Court had to address provisions of the Committee of Public Accounts of Dáil Éireann (Privilege and Procedure) Act 1970 which appeared to permit the Dáil Public Accounts Committee to find a witness guilty of contempt and send him forward to the High Court for punishment. The Supreme Court held that such a reading of the Act could not be consistent with the Constitution because, in the words of Ó Dálaigh C.J., “under the Constitution the Courts cannot be used as appendages or auxiliaries to enforce the purported convictions of other tribunals” and the same must apply to non-criminal determinations by other tribunals.
105.Looked at in this broader context, I do not think that anyone other than a lawyer, and perhaps a pedantic one at that, would consider the details of the process significant in understanding the nature of the proceedings before the W.R.C. An unsuccessful party who had received an adverse decision from the W.R.C. would, I think, consider themselves in no different a position to a party emerging from the District Court or Circuit Court having lost a case. They would consider that, unless appealed, they would have to comply with the decision, and nearly all would. The evidence on behalf of the respondents was, indeed, that 90% of W.R.C. orders were complied with and only 10% were appealed. A losing party would know that if they did not comply of their own volition, they could be forced to do so by the power of the State. Most importantly of all, they would know that the legal consequences of their actions had been determined and that, unless appealed, that determination was the definitive decision by a body provided by the State and backed by it and which, as a matter of law, had determined their rights and responsibilities in respect of the matter in dispute. The fact that the decision of the W.R.C can be described accurately as a determination is of importance here. The State acknowledges that it is, moreover, a “determination of…civil rights and obligations” to which Article 6 of the E.C.H.R. applies. Determination here connotes decision-making which is definitive. It is the decision of the W.R.C. which is decisive of the legal rights of the parties.
106.I appreciate that Simons J. considered himself bound by precedent to conclude, albeit with evident reluctance, that the limited discretionary power available to the District Court to substitute an award of compensation for an award of reinstatement or reengagement meant that the decision of the W.R.C. was not to be considered an administration of justice but rather, presumably, an administrative function, although one bound to be performed judicially. The separation of powers is a vital feature of the Constitution and has shown its values in the years since independence. It is, nevertheless, a difficult concept and both the borderline between the respective powers and the area of overlap between them is sometimes blurred and indistinct. In particular, the experience under the Constitution of 1922 showed that a rigid and exclusive definition of the judicial power would, if anything, make more difficult the functioning of the separation of powers, and would not be consistent with the structure of the society established under that Constitution. This is an area where the wisdom of the observation of Oliver Wendell Holmes that, in a constitution, there must be some play at the joints, has particular value. It was in the context of the analysis of the full and original jurisdiction of the High Court that Henchy J. set out the principle of harmonious interpretation of the Constitution and rejected a rigid and literal interpretation of Article 34 in Tormey v. Ireland [1985] I.R. 289. The experience of many judges and writers has shown that it is difficult and often impossible to offer a clear prescriptive definition of the nature of the judicial power or, indeed, the executive or legislative powers. However, that does not mean that it does not have some independent content. I consider that if it was possible to conclude that the procedure to determine an unfair dismissal case under the provisions of the 2015 Act did not constitute an administration of justice for the purposes of the Irish Constitution, solely because of these features of the enforcement process, it would be to almost empty the concept of the administration of justice of any independent meaning, and render it an almost formal and circular concept: the administration of justice which is consigned so solemnly to courts established under the Constitution and to judges appointed under it would be no more than business which from time to time is done in those courts.
107.Again taking a broad perspective, it is apparent that the development in 1977 (building on the example of the Redundancy Payments Act) and establishing a separate code of unfair dismissal, and conferring jurisdiction upon an Employment Appeals Tribunal, was a decisive shift. In the field of industrial relations, it was a move from the collective claim to an assertion of individual rights, and from resolution of disputes by collective action, arbitration, and conciliation, to a form of State-enforced official judicial determination of individual disputes. The issue to be decided was not a matter of discretion, or what was advisable or desirable in the future for industrial peace or good employer/employee relations: it was, rather, a determination of the legal rights of parties in relation to the past events. The deciding body had power to determine, for the purpose of its decision, the facts which had occurred, and to apply the law to such facts. Indeed, if the tribunal failed to do so correctly, it would be open to correction, not because the decision it had reached was unwise or inadvisable, but simply because it was wrong or impermissible as a matter of law. It had power to exercise jurisdiction against the will of a party and ensure that its orders were enforced by the State. It could compel the attendance of witnesses and the production of documents and failure to comply was an offence. It had power to determine disputes according to law and, in the words of Griffith C.J., quoted by Kennedy C.J. in Lynham, to “order right to be done in the matter”.
108.The Blueprint to Deliver a World-Class Workplace Relations Service (2012) which preceded the enactment of the 2015 Act, and which was exhibited in the proceedings, states that the decisions of the adjudication officers would include the issues identified as relevant to the claim, an explanation why any such issue was not determined, the findings of fact relevant to the issues, a concise statement of the applicable law, the application of that law to the facts found, and the decision (including any award). This is precisely the task of any court required to resolve a justiciable controversy. The fact that, since 1977, a determination in respect of a claim for unfair dismissal, whether favourable or not, precludes pursuit of a claim for wrongful dismissal (and vice versa) is a clear illustration of the fact that the respective processes were understood to occupy the same ground. Furthermore, the fact that the existence of an unfair dismissals jurisdiction is understood to preclude development of the common law of dismissals demonstrates the function the unfair dismissals regime is understood to perform. Approaching the issue with a degree of caution and flexibility consistent with the case law, it is appropriate to acknowledge that not one of these features, on its own, is determinative and it is possible to have many of these features but yet conclude that the process does not amount to the administration of justice. However, here, it is an unavoidable conclusion, in my view, that what was designed and sought to be implemented was a judicial process which was intended to resolve justiciable controversies according to law.
109.A valuable contemporary book written from the perspective of the Trade Union movement, N. Wayne, Labour Law in Ireland: A Guide to Workers’ Rights (Dublin: ITGWU/Kincora Press, 1980), makes the point very clearly. At p. 98, it is observed that:-
“unlike the Labour Court and the Rights Commissioner the [E.A.T.] is exclusively concerned with issuing legal rulings.” (Emphasis in original.)
At p. 103, it is said:-
“[t]hough the [Rights] Commissioners are required to implement the Unfair Dismissals Act, in practice they have come to be regarded as having a broader function – that of settling disputes… By contrast the [E.A.T.] will operate strictly in accordance with legal principles.” (Emphasis added.)
In my view, this is a correct analysis. In terms of the nature of the process, the procedure to be followed, the issue to be determined, and the manner in which it was to be determined, whether viewed from the perspective of abstract legal analysis, or the more pragmatic and functional vantage point of the persons made subject to it, it is plain that the process set out was intended to be a judicial process. The question of the method of enforcement becomes critical therefore. Under the 1977 Act, there was a cumbersome process which allowed not just for a full appeal to the Circuit Court, but, moreover, required such a rehearing even in cases where there had been a refusal to comply with the determination of the tribunal. Such a procedure cannot be explained as required by considerations of efficiency, and it seems plain, as the commentators observed, that the purpose of the enforcement procedure, initially at the instance of the Minister, was to establish a marked distinction from the administration of justice, and protect against constitutional frailty. Whether or not the extended enforcement procedure under the 1977 Act had the effect that the entire procedure was not the administration of justice (something on which I express no view), I do not think that the almost automatic enforcement procedure under the 2015 Act can have the same effect. Instead of interposing a full hearing by a court with the effect, and reality, that the order enforced is that of the Circuit Court and not that of the tribunal, the court process is commandeered to provide for near-automatic enforcement of the determination of the adjudication officer or Labour Court. In my view, the function of the W.R.C., and the Labour Court on appeal, is the administration of justice. It is not coincidental that the parallel jurisdiction in the U.K. is conferred upon a tribunal understood to be performing a judicial function and part of the judicial system.
D. Limited Functions and Powers
110.The fact that the exercise of the jurisdiction by the W.R.C. constitutes an administration of justice does not, however, mean that it must be performed by a court. Article 37 is framed in negative terms:-
“nothing in this Constitution shall operate to invalidate the exercise of limited functions and powers of a judicial nature.”
Although the Article does not define either the area of administration of justice or the subset covered by this saver, it is, in my view, clear that justice may be administered by bodies which are not courts, and by persons other than judges in non-criminal cases. However, such exercise must constitute the exercise of limited functions and powers of a judicial nature. The only judicial consideration is that contained in the judgment of Kingsmill Moore J. in Re Solicitors Act 1954 set out at para. 67 above.
111.These observations have not been the subject of much, if any, judicial scrutiny for the subsequent half-century and more, and have had the effect of significantly limiting the scope of Article 37, with the result that much of the case law has been determined by reference to the basic distinction between the administration of justice and administrative functions. It is, perhaps, somewhat surprising that it has been accepted uncritically, given that the decision of the Supreme Court in Re Solicitors Act 1954 has been treated as increasingly anomalous. However, this narrow conception of the scope of Article 37 was analysed and criticised by Professor James Casey in ‘The Judicial Power under Irish Constitutional Law’ (1975) I.C.L.Q. 305 as follows:-
“This exegesis of the word “limited” is one of the crucial aspects of the case, yet no real reasons are offered in support of it. One might think it possible to hold that the context suggests a different meaning, viz. “restricted in number or as to subject-matter”. This construction would give the Oireachtas wider scope for experiment.”
Referring to the reference to Article 34.3.4°, Casey notes, at p. 322:-
“The precise meaning of “limited” in this context has not yet been settled by judicial decision. Consequently the Supreme Court’s assertion that “limited jurisdiction” necessarily means something quite different from “limited functions and powers” is difficult to accept.”
112.Taken in isolation, there is no doubt that the interpretation of Article 37 accepted as in Re Solicitors Act 1954 is a possible interpretation of the text alone. It is, however, also possible to interpret the terms of Article 37 more broadly, as argued for by Professor Casey. There are a number of reasons why, in my view, a broader interpretation should, indeed, be taken. First, the plain function of Article 37 is to provide a saver to permit the exercise of some functions and powers by persons and bodies who are neither judges nor courts under the Constitution. What is required to be performed in courts by judges is the administration of justice under Article 34. It is, and has always been, accepted that there are administrative functions which can be carried out by non-judicial bodies, albeit that they may be required to act judicially and are bound by the rules of constitutional justice. Article 37 was not required to render such functions and powers constitutional. It follows, necessarily, that what Article 37 validates is something which, in the absence of the Article, would be considered an administration of justice and exclusively consigned to the courts, and not a mere component of the administration of justice such as, for example, the right to hear evidence or require the attendance of witnesses. In broad terms, therefore, what Article 37 permits is a State-mandated decision-making function to be exercised by persons other than judges, which suggests a capacity to determine some disputes, at least, conclusively. Whatever Article 37 permits, it must be capable of being the administration of justice which means, at a minimum, a State-supported decision-making function capable of delivering a binding and enforceable decision.
113.Second, the background to Article 37 points to a broader understanding of the text. If the exercise of the powers of the Land Commission and the Revenue Commissioners, to take two of the extant examples considered in 1937, could nevertheless be considered to be “limited” functions and powers capable of being validated by Article 37, then that suggests a significantly broader scope for the application of the Article, and argues against a narrow reading.
114.Third, the test of far-reaching effect is both relativist and impressionistic. In any event, it can be said that any change in the law is intended to have some effect, and most contested decisions made by any official decision-making body will be keenly felt by the parties to it. It seems likely that Mr. Lynham considered the original decision of the Land Commission, that the valuable lands to which he was about to become entitled were to be compulsorily transferred to the Reverend Dr. Butler, was a decision having far-reaching effect, and no doubt the Reverend Dr. Butler felt the same when that decision was later reversed. A decision by the Revenue Commissioners in relation to tax may be of enormous, even ruinous, impact on a person or a company. Far-reaching does not, therefore, supply a useful basis for identifying the area covered by Article 37, but it does have the unhelpful effect of suggesting that Article 37 bodies must have a very limited scope, and excludes, or at least inhibits, the possibility of conferring decision-making jurisdiction in important areas on bodies with particular expertise in that limited area.
115.Finally, contrasting Article 37 with Article 34.3.4° and the local and limited jurisdiction of courts, and excluding from limited powers and functions under Article 37 anything which can be said to limit a court’s jurisdiction for the purposes of Article 34, is not persuasive. Indeed, a different lesson might be drawn from the text. It seems at least arguable that both Article 37 and Article 34.3.4° are to be contrasted not with each other, but, rather, with Article 34.3.1° and “the full original jurisdiction” of the High Court, and the power to determine all matters and questions, whether of fact or law, civil or criminal. On this approach, the limitations on jurisdictions of local and limited courts under Article 34.3.4° may indeed provide some insight as to the type of limitation contemplated by Article 37. There is, in my view, no necessary reason to conclude that the fact that inferior courts may have limits to their jurisdiction should exclude the possibility of similar limits being taken into account when considering the operation of non-judicial bodies under Article 37.
116.Looked at in this way, there are a number of ways in which the functions and powers of the W.R.C. can be said to be “limited”. First, and most obviously, it is limited by subject matter to those areas of employment law specifically identified in the Act. It has no inherent jurisdiction, and no jurisdiction under, or in relation to, common law. Furthermore, it does not have jurisdiction to deal with any other type of dispute. This, in itself, is, in normal language, a significant limitation and, moreover, something that distinguishes such a body from courts established under the Constitution having general jurisdiction. Second, there is a limitation on awards which can be made by the W.R.C. which, for example, in cases of unfair dismissals, is limited to an award of compensation of 104 weeks’ remuneration. In some cases, this can, of course, be a substantial sum, but it may equally in some cases fall short of the loss suffered by the applicant. It is, in any event, a limitation on the powers of the W.R.C. The Circuit Court has, for example, a limitation on equitable jurisdiction by reference to rateable valuation which captures some very valuable property, but that it is still a court of limited jurisdiction when dealing with such matters is undeniable. Third, there is the (much reduced) limitation on enforceability coupled with the limited capacity of the District Court to substitute compensation for redress by way of reinstatement or reengagement. Fourth, the decision of the W.R.C. is subject to appeal. While the question of appeal or confirmation by the court has tended to be approached under the heading of the enforceability of the order made by the deciding body, it is also, and perhaps more, relevant when considering the question of limitation on the powers and functions of a non-judicial body under Article 37. A requirement that a decision be confirmed by a court, or which makes it subject to a full de novo appeal in a court, is necessarily a limitation on the powers of the body giving the decision. Here, the decision by an adjudication officer is subject, firstly, to a full appeal on a matter of fact to the Labour Court. That body is, in turn, subject to appeal on a point of law to the High Court. These appeals are available as of right, and do not require permission from either body or the court itself. Thus, the correctness of the conclusion of the W.R.C. on matters of fact or law may be reviewed and, insomuch as a decision made by the Labour Court is a matter of law (as it can involve the application of law to the facts), it is reviewable, in turn, by the High Court.
117.Finally, in this regard, I think it is appropriate to have regard to the limitation imposed by the fact that the W.R.C. is a body subject to judicial review. While this might be said to be common to any body exercising a power or function under public law today, that does not mean that it is not a significant limitation on the exercise of the powers and functions of such a body. It is worth recalling that the extensive exercise of the jurisdiction of the High Court by way of judicial review for jurisdiction, error of law and, to some extent at least, of fact, unreasonableness, proportionality, the taking into account of irrelevant considerations, or failing to consider relevant considerations, compliance with the Constitution and the E.C.H.R., and much more, is largely a feature of the development of the law in the latter part of the 20th century. At the time of the decision in Re Solicitors Act 1954, for example, the first edition of De Smith’s Judicial Review of Administrative Action (London: Stevens & Sons, 1959), and Wade’s Administrative Law (Oxford: Oxford University Press, 1961), had not been published, and it would be more than a quarter of a century before the first edition of Hogan and Morgan’s Administrative Law in Ireland (Dublin: Round Hall, 1986) in this jurisdiction. It is useful to consider if, for example, the Solicitors Act of 1954 had provided by statute for the extensive review which is now available under the supervisory jurisdiction of the High Court, how such a review would have been analysed when considering limitations on the powers of the tribunal. A decision of an adjudication officer is limited in subject matter, and may be appealed, both in relation to fact to the Labour Court, and in relation to law through the Labour Court to the High Court, and, in addition, may be reviewed not merely for what it has done but, as this case illustrates, how it has done it. In my view, when these matters are considered cumulatively, I would conclude that the W.R.C. is exercising limited powers and functions of judicial nature, which exercise of power is therefore covered by Article 37 and does not, therefore, offend the Constitution.
118.I appreciate that some of my colleagues take a different view of what is, on any view, a difficult case. Charleton J. would find that the absence of an appeal to the Circuit Court (or, presumably, any court) means that the jurisdiction of the W.R.C. and Labour Court is the administration of justice and is not saved by Article 37. I recognise that the possibility of appeal has been considered important from the time of Lynham v. Butler (No. 2), but I have difficulty in agreeing that an adjudication loses its character as the administration of justice if the selfsame issue may be decided by a court on appeal, which is the administration of justice. The third limb of the McDonald test acknowledges that the existence of an appeal does not deprive an adjudication of its character as the administration of justice. The decision of a court is no less the administration of justice because it is subject to appeal and I cannot see, therefore, why a final and binding adjudication by a non-judicial body is not the administration of justice because the issue can be the subject of appeal. Nor, if the availability of an appeal is viewed as a limitation bringing the jurisdiction within Article 37, can I see that there is a fundamental constitutional distinction between an appeal, the form of review provided for under the Residential Tenancies Act 2004, for example, which limited a court to considerations of whether there was a want of procedural fairness or a manifestly erroneous decision, and the type of appeal and review which applies in this case, particularly when the review of what is a limited administration of justice can be expected to be rigorous.
119.I have also had the opportunity of reading the judgment, to be delivered, of MacMenamin J. in its draft form. I recognise the scholarship displayed, and the important and real concerns which lead him to a different conclusion to that which I have come. I hope to set out, relatively briefly, some of the principal reasons why, however, I respectfully disagree.
120.The logic of the analysis advanced by MacMenamin J. is that the exercise of jurisdiction by adjudication officers and the Labour Court under the 1977 Act and related legislation is the administration of justice reserved to courts and judges under Article 34 and is, accordingly, incompatible with the Constitution; however, that, he considers, could be remedied by the provision of an appeal to a court established under the Constitution. However, the conclusion that the exercise of jurisdiction is the administration of justice leads to the further conclusion that the personal rights of a citizen under Article 40.3 of the Constitution are engaged. On this basis, the procedures provided for under the 2015 Act in relation to hearings in private, the inability to require evidence to be given on oath, the absence of a specific provision provided for cross-examination, and the inability to provide for suitably qualified decision-makers for cases with a significant legal dimension are, also, separate and distinct items of unconstitutionality.
121.It is something of a paradox that what is described as a cautious and narrow approach leads, nevertheless, to a wholesale invalidation of the Act and the procedures adopted under it. MacMenamin J., however, disagrees that the jurisdiction can be covered by Article 37, partly for reasons of history, and more fundamentally because he considers that the combined effect of the W.R.C.’s power to prosecute offences under the Act and the fact that the failure to comply with an enforcement order made by the District Court is an offence under s. 51 of the Act means, in his view, that the jurisdiction is, at least in part, criminal and thus outside the potential scope of Article 37. Alternatively, it is said that the power of the W.R.C. to disapply national law incompatible with E.U. law, which power the Court of Justice of the European Union (“the C.J.E.U.”) established, in Case C-378/17 Minister for Justice and Equality & Anor. v. The Workplace Relations Commission ECLI:EU:C:2018:979, (“Minister for Justice v. W.R.C. (C.J.E.U.)”) and Minister for Justice, Equality and Law Reform v. The Workplace Relations Commission [2017] IESC 43 (Unreported, Supreme Court, Clarke J. (as he then was), 15th of June, 2017) could not be considered a limited function or power and which accordingly, again, has the effect of preventing the jurisidiction of the W.R.C. and Labour Court under the 2015 Act from being capable of benefitting from the protection of Article 37.
122.First, if it is correct that the adjudication officer and/or the Labour Court is engaged in the administration of justice when making decisions pursuant to the procedures of the 2015 Act in relation to questions of unfair dismissal and payment of wages (and I agree that it is), then, as already discussed, I doubt that the elaborate machinery of the 2015 Act could be rendered a non-judicial administrative function merely by providing for an appeal to a court. Those cases in which recourse to a court has been found to have the effect of rescuing an adjudicatory function from unconstitutionality involve an application to court for a determination or confirmation of a determination with the full capacity of the court to come to its own conclusion on the merits so that, indeed, the court could be said to be the “effective decision-making tribunal” and making the “vital decisions” in a real sense, as explained by Finlay C.J. in C.K. v. An Bord Altranais [1990] 2 I.R. 396, 403. Indeed, the third limb of the McDonald test recognises that a decision-making function can be the administration of justice if it comes to final and binding decisions, even if those decisions are subject to appeal.
123.While it is a matter for others to judge in due course, I do not consider or intend that my judgment should involve any radical departure from precedent in the shape of the McDonald test. Indeed, since I reach the same conclusion as my colleagues by reference to the test, such differences of approach, if any, might be thought to be minimal rather than radical.
124.In my view, the circumstances here are also entirely distinguishable from the situation identified in Cowan v. A.G. There, an electoral court established under the Municipal Elections (Corrupt and Illegal Practices) Act 1884 was to be presided over by a barrister, and had jurisdiction not only to try issues in relation to a disputed election, but also to try a person on a criminal charge of an illegal or corrupt electoral practice, which on conviction carried a sentence of up to 6 months’ imprisonment. By contrast, if, under the 2015 Act, a party fails to comply with an enforcement order made under s. 44 or s. 45, such non-compliance may constitute a criminal offence triable in the District Court. In such circumstances, however, it would be the District Court which was administering justice in a criminal matter. The function of prosecuting the offence, if carried out by the W.R.C., would not thereby mean that the W.R.C. was invested with any jurisdiction to administer justice in criminal matters. Article 37 provides a limited saver in respect of functions which otherwise would have to be carried out by judges under Article 34: the prosecution of criminal offences has never been a judicial function.
125.The decision in Minister for Justice v. W.R.C. (C.J.E.U.) is certainly striking, but that case was decided explicitly on the basis that the obligation to disapply national law considered to be inconsistent with E.U. law was an obligation that lay on any body, whether judicial or administrative, which had the obligation to apply or enforce law. Indeed, the case itself was decided on the basis that the W.R.C. was an administrative, and not a judicial, body. The disapplication of national law and the enforcement of law was not treated by the C.J.E.U. as a judicial function, but instead an obligation on any body applying the law. If, indeed, all the bodies subject to that obligation were to become thereby bodies administering justice under Article 34, and not entitled to benefit from the saver in Article 37, then the unconstitutionality would sweep very far indeed. Indeed, the logic of MacMenamin J.’s approach would appear to lead not only to the conclusion that the functions currently performed by the W.R.C. are the administration of justice which can only be carried out by a court, but also to a finding that only the High Court could do so, since he considers the disapplication of national law a judicial function which could not be carried out by a court of local and limited jurisdiction. In fairness, it should be observed that neither this contention, made in reliance on the Minster for Justice v. W.R.C., nor the argument that the W.R.C. and or/the Labour Court are engaged in the exercise of a criminal jurisdiction (and thus excluded from Article 37) was advanced in argument or even touched on by either of the parties, and are not endorsed by any other member of the Court.
126.I do not agree, with respect, that the historical materials suggest that the drafters of the Constitution took an extremely narrow view of Article 37. The functions of the Land Commission, the Revenue Commissioners, and the Social Welfare Adjudicators are significant and important functions. They are limited functions, but only by subject matter and the possibility of appeal to, and review by, a court. They have far reaching effects on lives. Nor would I, for my part, consider that the judgments of Murnaghan and FitzGibbon JJ. in The State (Ryan) v. Lennon [1935] I.R. 170 were in any way akin to the tactic of legality discussed by MacMenamin J. One might, with equal, if not greater, justification question how a democratic society based on the separation of powers might have developed if the dissenting judgment of Kennedy C.J. had prevailed. The 1922 Constitution may, indeed, have had an Achilles heel, but if it did, it is not self-evident that it was part of the courts’ function to purport to remedy that or any other perceived defects rather than to identify them. But, these matters are some distance from the issues arising in this case and I doubt that, even if it was appropriate to determine this case by these broad considerations, it would indeed be possible to do with any precision or accuracy. For example, if it is possible to remove an adjudicatory function from the field of the administration of justice by the simple device of allowing for a limited, rare, but expensive appeal to a court, with the consequence, it appears, that the obligation to adopt procedures required by Article 40.3 would also disappear, then it might be thought that the constitutional protection for the field of the administration of justice could be hollowed out. Similarly, while MacMenamin J. considers that the 5th limb of Mc Donald means that the principles of Article 34, as interpreted, would not stand in the way of other quasi-judicial bodies operating in new areas which were never the business of the courts, I do not, with respect, understand how this squares with a conclusion that the W.R.C. in exercising statutorily-created jurisdiction in respect of the Unfair Dismissals Act 1977, the Employment Equality Act 1998, or the Equal Status Act 2000 – to mention only three – all of which would have been regarded as novel, if not indeed heretical, in 1937, is nevertheless administering justice reserved exclusively to courts by Article 34. If, moreover, it is possible to avoid Article 34 (and Article 37) entirely by creating new claims and causes of action, or forms of adjudication which may, however, render redundant common law actions, then it would be possible to circumvent the Constitution much more effectively and comprehensively than by the use of Article 37 that MacMenamin J. fears, since the resultant jurisdiction would be deemed administrative only, and subject to no requirement of limitation and reviewable only on the basis of unspecified fair procedures. This would be particularly troubling, since such new areas of adjudication are, almost by definition, areas considered to be of such relevance to the lives of citizens and their current concerns as to require statutory intervention. In the end, the only sure guide to our decision can be the terms of the Constitution understood in its context, and as interpreted by the courts. Accordingly, while acknowledging the important concerns raised in the judgment of my colleague, I cannot agree that Article 37 should be read so narrowly and restrictively, whether as a matter of interpretation or broader policy.
127.MacMenamin J. also quotes from my judgment in O’Connell, in which I acknowledged that there was no single unifying theory for the identification of the administration of justice, the area of the judicial function, or the nature of justiciable controversies. I hope the discussion earlier in this judgment explains why I still consider that it is not possible to identify a single infallible litmus test which will determine the existence of the administration of justice or, indeed, the limits of the area covered by Article 37. However, the Constitution and the case law make it clear that, while closely related, there are critical distinctions between: (i) administrative adjudication required to be carried out in accordance with fair procedures; (ii) the administration of justice by a judge under Article 34; and (iii) the exercise of limited functions and powers of a judicial nature under Article 37, each of which has different legal consequences. In this case, we are required to locate the jurisdiction exercised by adjudication officers and the Labour Court under the 2015 Act within that classification. We cannot avoid that task.
128.I fully accept that the boundaries between the areas are difficult and contestable. It is also emphatically the function of the court under the Constitution to determine, in any given case, how a particular jurisdiction is to be analysed and categorised. Indeed, it may be for future courts to revisit, revise, and refine the decisions made. It is to be expected that those courts will approach this task cautiously in the light, in particular, of the concerns expressed in this case by my colleagues and will be vigilant to ensure in the future, just as much as in the early part of the 20th century, that there is no whittling away of the function of the administration of justice. That is a foundation, indeed keystone, of the separation of powers and cannot be eroded without undermining the essential constitutional structure of the State.
129.This case is located at a difficult and indistinct frontier. But, decision-making is unavoidable and no course is free from difficulty. If Article 37 is shrunk almost to vanishing point as covering no more than adjectival and somewhat inconsequential functions not previously thought to potentially contravene Article 34, then the law would be faced with a stark binary choice between either the administration of justice required to be carried out by judges appointed under the Constitution or the performance of administrative functions by persons subject to appointment and removal by the executive and required only to comply with unspecified fair procedures. Such a stark divison is not attractive, particularly in an area where history shows that precision is impossible and some flexibility is required. I do not agree, therefore, that the case law shows a reluctance to invoke Article 37. On the contrary, as observed in this regard at para. 6.4.111 of Kelly:-
“Subsequently, however, there was clear evidence of judicial unhappiness with the logical implications of the Solicitors Act case and nearly all the later cases show a tendency either to confine that case to its special facts or to refuse to apply the principle by analogy.”
130.Thus, in Central Dublin Development Association v. The Attorney General (decided in 1969 but reported in (1975) 109 I.L.T.R. 69), Kenny J. held that the ministerial power exercisable under the Local Government (Planning and Development) Act 1963 to decide if a development was an exempted development was an administration of justice, but covered by Article 37, and the same principle must, it appears, apply to the later exercise of similar powers by An Bord Pleanála. In Madden v. Ireland (Unreported, High Court, McMahon J., 22nd of May, 1980), McMahon J. found that the power of the Lay Commissioners and the Appeal Tribunal of the Land Commission to fix the price of lands acquired was “the administration of justice and the exercise of judicial power”, but was sanctioned by Article 37. He said, at para. 14:-
“Experience has shown that modern Government can not be carried on without many regulatory Bodies and those Bodies can not function effectively under a rigid separation of powers. Article 37 had no counterpart in the Constitution of Saorstát Éireann and in my view introduction of it to the Constitution is to be attributed to a realisation of the needs of modern Government. The ascertainment of the market value of a holding of lands by an administrative Body with special experience appears to me to be the kind of judicial power contemplated by Article 37.”
131.In The State (Calcul International Ltd. and Solatrex International Ltd.) v. The Appeal Commissioners & The Revenue Commissioners (Unreported, High Court, Barron J. 18th of December, 1986), Barron J. considered that the powers of the Appeal Commissioners in Revenue matters was not the administration of justice but, if it was considered to be such, then it clearly fell within Article 37. Most recently, in a monumental judgment in the High Court on multiple issues arising from the An Blascaod Mór National Historic Park Act 1989 (An Blascaod Mór Teo. & Ors. v. Commissioners of Public Works & Ors. [1998] IEHC 38 (Unreported, High Court, Budd J., 27th of February, 1998)), Budd J. found that the power of the property arbitrator to assess compensation under the Acquisition of Land (Assessment of Compensation) Act 1919 was an administration of justice, but permitted under Article 37. These are all substantial functions which cannot be considered incidental or adjectival. If anything can be said to be absent from the case law to date, at least until today, it is a finding that a function conferred by statute is the administration of justice being performed outside courts and not permitted by Article 37, and contrary to Article 34 .
132.I appreciate and accept that there are downstream risks which it is difficult to foresee or remove in advance, and that future courts may have to navigate those waters in the light of the developing case law. However, the paradox remains that if the jurisdiction of the Adjudication Officer and/or the Labour Court is seen as the administration of justice which is both limited, and must comply with the requirements of the administration of justice by an independent tribunal according to law under Aticle 37, that provides a structure for analysis, and greater assurance of fair outcomes. I am reluctant to accept that it should be viewed either as the administration of justice which can only be performed by a court, or the performance of an administrative function by a non-judicial body, in each case dependant only on the presence or absence of the fig leaf of a rarely used and expensive appeal to court, which the evidence in this case showed was little more than a statistical curiosity, and which accordingly provides little by way of guarantee of fairness throughout the process for the parties to employment disputes.
133.I have also had the opportunity to read a draft of the judgment which McKechnie J. delivers today. As I read it, he agrees that the function being performed under the 2015 Act constitutes the administration of justice under Article 34, and to that extent would apply the McDonald criteria with a degree of flexibility. However, he does not agree that the function can be considered to be covered by Article 37. This follows from his reading of the case law, rather than from the concerns which lead MacMenamin J. to his conclusions. He agrees with the conclusion I would come to in relation to procedures and the order I propose in that regard, and, unlike MacMenamin J., does not consider that there is any constitutional frailty in the provisions in relation to cross-examination or the absence of a requirement that ajudication officers or members of the Labour Court should possess legal qualifications. I acknowledge and respect the reasons which lead a valued colleague – whose last judgment this is – to his separate conclusions. His judgment does make it very clear that the question of appeal cannot be decisive, and accordingly the conclusion he would reach means, necessarily, that the functions currently being performed by adjudication officers and the Labour Court on appeal under the 2015 Act, and indeed any similar functions created by statute, can only be performed in courts, by judges appointed under the Constitution. The reasons why I differ, with respect, from him in this regard are, I hope, sufficiently apparent from the discussion set out above.
E. Procedures
134.The conclusion that the jurisdiction created by the 2015 Act is not an impermissible administration of justice, but rather falls under Article 37 of the Constitution, does not, however, dispose of this case. The appellant complains of the procedures adopted by the adjudication officer and the W.R.C. and relies, in this regard, on the evidence of both a solicitor, Mr. Ciarán O’Mara, and a barrister, Mr. Tom Mallon B.L., with considerable experience in employment matters acting for both employers and employees. The appellant also points to the extraordinary facts of this case as being the manifestation of systemic flaws in the organisation and procedures adopted by the W.R.C.
135.Taking this latter point first, the appellant criticises the evidence submitted on behalf of the respondent because no affidavit has been sworn by the individual officer with no explanation given by any witness for how the error in this case occurred. It should be said that, in making this point, the appellant does not seek to embarrass the individual adjudication officer, and agrees that it is not necessary to identify that officer by name in these proceedings. I agree, and would not wish to be unduly influenced by the startling, indeed calamitous, error in this case. The fact is that anyone can make a mistake which, in hindsight, appears both extraordinary and inexplicable. Given that the State is not seeking to defend the decision in any way, I do not consider the absence of an affidavit from the adjudication officer to be significant. What is relevant here, however, is what that error suggests for broader practice. It is not that the procedures under the 2015 Act necessarily lead to an adjudication officer deciding a case without hearing from the parties. It is, however, relevant, I think, that such an error could only occur, or at least could most readily occur, if it was commonplace to decide cases on documents submitted and with very limited or no oral hearings, and if such hearings take place in private.
136.In addition, I do not think that the evidence of the practising lawyers can be discounted as readily as the respondent suggests. It may well be the case that lawyers are only retained in a small minority of cases where the complexity and amounts at issue can justify their engagement and, therefore, the unsatisfactory experience they recount in such cases cannot necessarily be extrapolated to the majority of cases dealt with by the W.R.C. However, that does not address the criticism. As discussed above, the 2015 Act has, in effect, conferred a jurisdiction limited by subject matter upon the W.R.C. That jurisdiction extends, effectively, to all disputes arising in the course of, or in relation to, employment, and renders largely redundant the traditional common law remedies. The system established must, therefore, be capable of providing a satisfactory resolution for all the cases, whether complex or simple, and whether the awards are small or more substantial. Indeed, the individual employer and employee are entitled to no less than a competent resolution in any and every case. I consider it disturbing, therefore, that experienced practitioners would consider it necessary to express in a measured and responsible way the serious concerns which they have. Furthermore, if the hearings take place in private, then the only way in which evidence can become available as to the practices followed is if practitioners and representatives are prepared to provide evidence.
137.I wish, however, to make it absolutely clear that, in doing so, I do not criticise in any way the policy underlying the 2015 Act of providing a cheap, relatively informal, and efficient decision-making function, staffed by persons with expertise in the areas of employment law and with practical experience in industrial relations. The concept of speedy dispute resolution close to the workplace and in a manner not hidebound by either formality or procedure has much to recommend it, and I would reject unhesitatingly the contention that such a body must be staffed by people with formal legal training and sufficient legal experience to be appointed judges. I should also say that, in my limited experience, I have had the opportunity of considering a number of decisions made by adjudication officers which show a detailed understanding of the relevant law, and a careful and thoughtful assessment of the facts of the case. Courts and lawyers do not have a monopoly on fact-finding, or even the law’s application, and cannot claim infallibility in either respect. If it were otherwise, there would be no need for an appellate system. There is no doubt that the range of decisions required to be made by the W.R.C. can involve very complex areas of law both national and European, but there is no justification for insisting that, as a matter of constitutional law, a law degree or experience as a practising lawyer is an essential qualification.
138.The logic of the conclusion that the W.R.C. is exercising functions covered by Article 37 is, however, instructive here. The exercise of jurisdiction captured by Article 37 is the administration of justice. The Article merely permits it to be carried out by a body other than a court and by a person other than a judge in a context that is non-criminal and limited. This has the consequence that, for example, a decision-maker is not required to make a declaration required by Article 34.6 to be appointed by the President, and is not prohibited from holding any other position of emolument. However, the function being performed and the power being exercised must comply with the fundamental components of independence, impartiality, dispassionate application of the law, openness, and, above all, fairness, which are understood to be the essence of the administration of justice. It might be said that this is encompassed in the requirement that any decision-maker act judicially and adhere to the principles of constitutional justice but, in my view, the acknowledgement that what is at issue here is the administration of justice, albeit by a body other than a court and a person other than a judge, provides a useful structure within which to consider the procedures established pursuant to the legislation. The standard of justice administered under Article 37 cannot be lower or less demanding than the justice administered in courts under Article 34.
139.The 2015 Act represents a number of different policies which are sought to be pursued in the field of labour law more generally. First, there is a comprehensive judicialising of disputes noted by the Franks Report in the United Kingdom which is, perhaps, its own unexpressed compliment to the virtues of the law and legal method resolution as a way of resolving disputes between individuals. Increasingly, in the latter part of the 20th century, citizens were given rights by statute, and the capacity to have those rights enforced as a matter of law. On the other hand, the 2015 Act seeks to pursue the desirable objective of having any disputes resolved as speedily, cheaply, and informally as possible, and without the aspects of court proceedings which might be considered unnecessary and, in some cases, intimidating and inhibitory. There is no necessary incompatibility between the two policies. However, if the policy of informality and the rejection of expensive and potentially cumbersome legal procedures becomes a rejection of the law and those features of procedure necessary for a fair determination, then there is an unavoidable, and fatal, clash. It might be thought that to be able to dispense with unnecessary and irrelevant procedures, but maintain the fundamental structure sufficient to permit a fair hearing and a proper application of the law, would require a very comprehensive understanding of what matters are central to the fair resolution of disputes and what matters, by contrast, can be safely discarded or modified. It has to be recognised that if it is desired to have legal disputes, sometimes involving complexity of fact and law, resolved satisfactorily outside the court system, it is necessary to respect the essence of the fact-finding processes and capacity for legal analysis that can be found in courtrooms. Wherever they are decided or by whom, it is not possible to have claims fairly determined in accordance with law in the absence of law and fair procedures.
140.The appellant points specifically to three further features of the 2015 Act which, it is contended, are incompatible with the Constitution. First, proceedings before the adjudication officer cannot be heard in public as s. 41(13) provides that “proceedings … before an adjudication officer shall be conducted otherwise than in public” (emphasis added); second, there is no possibility to take evidence on oath, and, consequently, no penalty for false evidence; and, third, there is no express provision for cross-examination, as s. 41(5) provides merely that the adjudication officer shall give to the parties an opportunity to be heard by the adjudication officer and to present evidence relevant to the complaint or dispute.
141.In response to these points, the respondent offers a number of different arguments. It is argued that the procedures adopted are consistent with the policy of ensuring that proceedings do not become excessively formal or intimidatory. It is pointed out that the prohibition on public hearings only applies before adjudication officers. Under s. 44(7), proceedings before the Labour Court on appeal shall be heard in public unless otherwise ordered. It is also argued that it is not necessary to have evidence on oath or have some other method of punishment for false evidence, and that it is permissible to pursue a policy of relative informality in proceedings. In relation to cross-examination, a different argument is advanced. It is said that the Act does not preclude cross-examination. The Act must be construed compatibly with the Constitution and, in such cases where constitutional fairness requires that evidence be capable of being directly challenged, then that must be permitted. There is nothing in the procedures set out in the Act which precludes this, and therefore the Act cannot be said to be unconstitutional. If, in any particular case, cross-examination ought to have been provided and was not, then that may be corrected by judicial review.
142.Approached through the lens of Article 37, I cannot accept that there is a justification for a blanket prohibition on hearings in public before the adjudication officer. Article 34.1 makes clear that public hearings are of the essence of the administration of justice. In some cases, this may be practically important because the publicity may bring forward further relevant evidence and witnesses, or because it will allow a party (whether an employee or employer) to achieve public vindication. It may, furthermore, have the general public benefit that it allows the public to see justice administered, which might, for example, make it easier for a judgement to be made on the fairness, competence, and efficiency of the decision-maker. However, the requirement for a public hearing does not require any functional justification: from time immemorial, it has been regarded as fundamental to the administration of justice, and as establishing a principle from which any exception must be justified. Jeremy Bentham said that:-
“[w]here there is no publicity there is no justice. Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity.”
143.The rule established under the Constitution is not an absolute one, even for court proceedings, and is not expressly required under Article 37 in respect of the adjudicative processes covered by it. There is a justification for calm, quiet, and private resolution of many disputes which may be of particular sensitivity for the participants, and it may even be permissible to have a presumption in favour of private hearings at first instance, but it is not, in my view, possible to justify the absolute ban contained in s. 41(13), particularly when, on appeal, the opposite provision is made.
144.Similar arguments arise in relation to the absence of the possibility of ensuring that evidence is given on oath, and the consequential capacity to punish witnesses for deliberately false evidence. It should be said that the significance of evidence on oath is not because of any importance attached to the procedure itself, but because it triggers the power to punish for false evidence and thus provides an incentive to truthful testimony. Those who designed the system, and who may have some familiarity with the standard type of dispute and how they are best resolved, may have considered that it is preferable not to have the formality of an oath or the capacity to punish for false evidence, although no evidence was presented in this case as to any such conclusion, or any basis for it. It is, moreover, noteworthy that there is a power to administer an oath to witnesses before the Labour Court. See s.21(1)(b) of the 1946 Act as amended by s.74 of the 2015 Act. It is, moreover, difficult to square this approach with the fact that there is a capacity to summon witnesses to give evidence, and produce documents, and that such witnesses are given the same immunities and privileges as witnesses before the High Court, and that failure or refusal to give such evidence is a criminal offence. Though there may be few prosecutions for perjury, there seems little doubt that the structure created by the requirement to give evidence on oath, and the possibility of prosecution for false evidence, is an important part of ensuring that justice is done in cases where there is serious and direct conflict of evidence. Certainly, we have yet to find a better one. There is nothing in the Act which suggests that such conflicts cannot arise in the context of the jurisdictions exercised by the W.R.C. In such circumstances, I consider that the absence of at least a capacity to allow the adjudication officer to require that certain evidence be given on oath is inconsistent with the Constitution. I appreciate that one possible contention is that a blanket rule is easier to apply since, if the question of evidence on oath becomes a matter for discretion and only applicable in certain cases, it is an issue which may be raised in many cases, and, if an incorrect decision is made, may lead to the overall decision being quashed. This, in turn, might lead to adjudication officers feeling that the safest route is to concede the procedure even when it is not required, and possibly unhelpful, and leading, inevitably therefore, to greater and unnecessary formality in the proceedings. However, this type of problem is inevitable in any form of judicial decision-making and is a reason to have experienced decision-makers. Difficulty of decision-making cannot be designed out of a system intended to decide difficult disputes.
145.Finally, in this regard, it is striking that the Act sets out specific procedures for the adjudication officer (and the Labour Court) to follow. Section 41(5) requires the adjudication officer to permit the parties “to be heard” and “to present evidence”. Given this enumeration of procedures, the absence of a reference to cross-examination might appear deliberate and directed towards discouraging cross-examination. The Act contemplates “evidence” being given by “witnesses” having the same privileges and immunities as witnesses in the High Court. As long ago as Re Haughey, these features of court proceedings, and, in particular, the ability to cross-examine the opposing party, were regarded as fundamental to fair procedures, and the right of cross-examination (which was excluded by the procedures adopted by the Committee of Public Accounts) was one of the rights without which no party:-
“could hope to make any adequate defence of his good name. To deny such rights is, in an ancestral adage, a classic case of clocha ceangailte agus madraí scaoilte. Article 40, s. 3, of the Constitution is a guarantee to the citizen of basic fairness of procedures. The Constitution guarantees such fairness, and it is the duty of the Court to underline that the words of Article 40, s. 3, are not political shibboleths but provide a positive protection for the citizen and his good name.”
146. The arguments offered in defence of the statute effectively concede that cross-examination may be necessary in at least some of the cases coming before an adjudication officer and, it might be thought, in most, if not all, cases in which a witness attends and gives evidence which is not conceded. It is certainly unsatisfactory, in my view, that there is no express provision for this in the procedures set out in the Act, particularly when the Act is meant to be capable of being operated by persons without any knowledge of the law, and for decisions to be made by persons without any broader legal experience or training, even though they may have very detailed familiarity with the statutory code in the field of employment law. Mr. O’Mara, in his affidavit acknowledged the “tremendous advance” in establishment of a single system for adjudication, but observed that this had come at a cost:-
“Although never specifically stated, there has been an underlying hostility to the involvement of the legal profession in acting for parties to employment litigation. We can all agree that there should not be a place for unnecessary formalism and lay litigants should not be discouraged. This should not mean that minimum standards of procedures … should not have a place”.
The State respondents exhibited a paper prepared by the Registrar of the W.R.C. on “fair procedures in quasi judicial statutory bodies” which addressed, inter alia, the question of cross-examination. Quoting Wigmore’s famous description of cross-examination as the greatest legal engine invented for the discovery of truth, the paper continues:-
“whether courts are really concerned with the discovery of truth is a topic for another day. For the purposes of this presentation, it is worth emphasising that depriving a party to a hearing from their constitutionally entrenched right to confront and cross-examine his or her accusers could be deemed prejudicial, by the courts, in certain circumstances.”
This seems to display a narrow and defensive conception of fair procedures. Cross-examination and any other procedure should be allowed because they contribute to a fair hearing, and not merely because refusal may lead to challenge. It is, however, the case that it is to be presumed that an Act will be operated consistently with the Constitution, and any procedures carried out under it will comply with constitutional requirements. I note that the W.R.C. has produced a Guidance Note for a WRC Adjudication Hearing which, at para. 6.4, expressly refers to the right to question and cross-examine witnesses. While the guidelines have no statutory force, they are an indication that the W.R.C. does not seek to preclude cross-examination where it is necessary. If cross-examination is wrongly refused, then a remedy is available. I cannot conclude that the absence of an express reference to the availability of cross-examination in this case renders the Act unconstitutional.
147.Finally, the issue of the independence of decision-makers was touched on in argument, although not itself a separate ground of challenge. Independence and impartiality are fundamental components of the capacity to administer justice. Under the Act, an authorised officer is appointed by the Minister, which appointment contemplates revocation of the appointment in accordance with s. 40. Section 40(7) merely provides that the Minister may revoke an appointment under the section, but does not specify the circumstances in which such revocation may, and, as importantly, may not, occur. While the section contemplates the possibility of appointment for a fixed term, it is not required. Section 40(8) does contain a guarantee that an adjudication officer “shall be independent in the performance of his or her functions”. However, the Act does not reconcile this with the power under the preceding subsection which gives to the Minister unqualified power of revocation of appointment. This is troubling, particularly as it is likely that the adjudication officers will be civil servants in the Minister’s department with other responsibilities where they will routinely be required to accept direction. It would seem, however, that, if the procedure is treated as an administration of justice permitted by Article 37, the power of revocation could not be exercised in a fashion that interfered with, or detracted from, the independence of the adjudication officer in the exercise of their functions. Membership of the Labour Court is not regulated by the 2015 Act but by the provisions of the Industrial Relations Act 1946, which provides for appointments for a fixed term and removal for stated reasons but does not contain any express statement of the independence of such members. These matters were not the subject of argument in this case but would, at a minimum , require careful scrutiny in the light of the conclusion of this Court that the functions being performed are functions of a judicial nature involving the administration of justice under the Constitution. These considerations are not peculiar to the Irish constitutional order: guaranteed impartiality and independence are also essential requirements for any adjudication within the scope of European law, or in accordance with Article 6 E.C.H.R. and the jurisprudence of the E.Ct.H.R.
III – Remedy
148.The features identified above which are I consider to be repugnant to the Constitution are not inevitable, or even central, to the operation of the 2015 Act. It is necessary to distinguish between the consequences of each finding. The terms of s. 41(13) require that all hearings shall be conducted otherwise than in public. It is appropriate to declare that provision repugnant to the Constitution. The effect is that the prohibition on public hearings is removed, and proceedings may, but not must, be heard in public. In relation to question of the administration of an oath, the unconstitutionality resides in the absence of something, rather than a positive provision in the statute. It would, in my view, be inappropriate to declare the statute as a whole unconstitutional because it does not make provision for this, particularly because, in many cases, an adjudication officer may properly decide that such a requirement is not necessary. Instead, I think it is appropriate to merely declare that the absence of provision for the administration of an oath, or any possibility of punishment for giving false evidence, is inconsistent with the Constitution.
149.These conclusions do not, moreover, appear to have any consequence for decisions already made in other cases under the 2015 Act, nor do they necessarily preclude current proceedings under the Act, even without amendment of the Act. The effect of this decision is that proceedings may be heard in public, and it would appear that it is only in those cases where an adjudication officer concludes that it is necessary that an oath be administered that the flaw in the Act would preclude proceedings pending any considered amendment of the Act. However, I would hear the parties further on the question of the precise remedy, and the order to be made.
Mr. Justice William M. McKechnie
April 06, 2021
JUDGMENT
1. There are three issues of law which arise out of the background to these proceedings: firstly, whether the adjudication process provided for in the Workplace Relations Act 2015, insofar as it applies to determine the underlying claim of the appellant, constitutes the ‘administration of justice’ within the meaning of Article 34 of the Constitution, secondly, if it does, whether such process can successfully seek the protection of Article 37, and in either event was that process, by its actual application to the appellant and his complaint, conducted in violation of Article 40.3.1 and Article 40.3.2 of the Constitution. At a very much secondary level, the European Convention on Human Rights Act 2003, (“the 2003 Act”) was also invoked.
2. Mr. Zalewski was employed by the notice party, which operated a convenience store under the franchise “Costcutter” at North Strand, Dublin, between 2012 and 2016. He went from being a security guard, to being a supervisor and later was appointed to the position of assistant manager in the store. Unfortunately, shoplifting was not uncommon, but a more serious incident occurred in October, 2014 when the shop was robbed with a gun being discharged. He commenced personal injury proceedings against his employer arising out of this incident. In April, 2016 he was reprimanded by the manager who alleged that he should have been more involved when on some occasion a known shoplifter was on the premises. A short period of sick leave followed. Subsequently, the owner’s son and the manager apologised to him for the latter’s conduct at such meeting. Upon returning to work his performance as assistant manager was seriously questioned, both in terms of the security of the shop and also for arranging medical and legal advice for other staff members arising out of this robbery. In addition, he was accused of having used monies from the till, in effect an allegation of dishonesty, all of which were said by the employer to constitute gross misconduct for which he was summarily dismissed. His only right of appeal, which he unsuccessfully utilised, was to the shop owner himself. The only clarification arising from that appeal was that no accusation of theft was being made against him. Otherwise, the dismissal and its summary nature was to stand.
3. The appellant then instituted a claim for unfair dismissal under the Unfair Dismissals Act 1977 (as amended), and the Payment of Wages Act 1991 (as amended). The application made, pursuant to the Workplace Relations Act 2015, was assigned by the Director General of the Workplace Relations Commission (“the WRC”), established under the Act, to an Adjudication Officer, the first named respondent, who on 26th October, 2016, held a very brief meeting at which the parties were present and/or represented. This lasted for no more than a few minutes, ten at most, at which point both parties believed that the matter had been adjourned: whilst there is some difference of understanding as to the reasons why this occurred, nothing turns on this. The real point is that neither party ever understood that the case had been in any way concluded at that stage: in fact, the contrary was their specific impression. What then followed was seriously problematic.
4. By letter dated 1st November, Mr. Zalewski was notified that the further hearing date would be the 13th December. However, on attending, with his solicitor, at the designated place and time, they were informed by the employer’s representative and immediately thereafter by the adjudication officer in person that she had already reached a decision on the dispute and that the letter had issued in error. In a document dated and published some three days later, a four-page written decision issued which on its face contained findings purportedly based on evidence and submissions: in fact it read as if a full hearing had taken place. Evidently, given the brevity and cursory nature of the only meeting previously held, this description was seriously mystifying. At the most basic level, such matters demonstrated several major deficits in the process adopted and at a general level are said by the appellant to reflect a structural and systemic failure in the operations of the adjudication process. These events, and this point in particular, will be further explored in that part of the judgment dealing with the fair procedures argument.
5. The within judicial review proceedings then followed in which an order of certiorari was sought in respect of the adjudication officer’s decision and also in which a challenge was made on both constitutional and convention grounds. The former claim was advanced on two bases, firstly, that the powers conferred by various provisions of the 2015 Act as well as s. 8 of the Unfair Dismissals Act 1977 (as amended), constituted the administration of justice within the meaning of Article 34 of the Constitution, and were not saved by the provisions of Article 37, and secondly, and in any event, that the actual procedures adopted by the adjudication officer violated certain specified rights of the appellant under Article 40.3.1 and 40.3.2 of the Constitution. The Convention claim sought a declaration pursuant to s. 5 of the 2003 Act, that the same statutory provisions were incompatible with Articles 6 and/or 13 of the European Convention on Human Rights.
6. The quashing of the decision was not and could not, have been contested, but the constitutional argument was vigorously resisted at all levels. One such involved the State issuing a motion seeking to have that claim dismissed on the basis that since the adjudication was quashed, all other matters were moot or were otherwise of such a nature that should not be entertained by the court. In effect, this was treated by Meenan J. as a locus standi objection, with the learned judge holding that it could not be assumed that any rehearing of the complaints would suffer from the same constitutional infirmities as the original hearing had: on that basis, Mr. Zalewski was not “in real or imminent danger of being adversely affected, by the operation of the statute” ([2018] IEHC 59). On appeal this Court, when reversing that decision, identified the key constitutional issue as being a challenge to the statutory scheme as such and not as to what an adjudication officer might or might not do in any individual case under that scheme. In effect, the appellant’s submission was that he should not be forced to have his claim determined by a regime which he argued violated Articles 34 and 37 of the Constitution. Accordingly, all issues came on for hearing and were determined in a judgment delivered by Simons J. on the 21st day of April, 2020 [2020] IEHC 178.
7. Given the concession made which necessarily and obviously had to be done, Meenan J. described the explanation offered by the adjudication officer/WRC for what had occurred, an administrative error, as being “unacceptable” and “lacking credibility”: the trial judge himself described it as “bizarre”. Both would have been entirely justified in expressing in much stronger terms his rejection of that explanation which was unbefitting from any decision making board. Unfortunately, even if it were possible to do so, the explanation offered was not improved upon in the appeal before us, but rather was simply reiterated. I entirely concur.
8. After considering, inter alia, the constitutional challenge, which by court direction was confined, in argument, to the 1977 and 1991 Acts (locus standi, para. 97 infra) and having reviewed the authorities, Simons J. dismissed all complaints as made. On the Article 34 issue, he was satisfied to apply McDonald v. Bord Na gCon[1965] I.R. 217 “ McDonald”. Of the five features outlined by Kenny J., and said to constitute the administration of justice, both parties agreed that numbers (i) to (iii) were satisfied with some dispute on points (iv) and (v). The learned judge rejected the State’s submission that requirement No. (v) had not been satisfied, and also rejected the appellant’s claim that requirement no. (iv) had been satisfied.
9. On the former, he held that employment disputes have traditionally been regarded as justiciable, and were characteristic of the type of orders made by courts, for decades if not centuries, under their common law jurisdiction: comparing unfair dismissal with wrongful dismissal and a claim for payment in lieu of notice with a breach of contract claim. On the latter however, given the fact that the enforcement of any order made by an adjudication officer or the Labour Court on appeal, would have to involve the District Court, and that on the hearing thereof such court could modify the ultimate form of redress, the trial judge felt that such were “irreconcilable with a finding that the two statutory bodies are carrying out the administration of justice”. (para. 82). Although reaching that conclusion with “some hesitation”, (para. 77) nonetheless the result was that the claim was dismissed. Having so concluded, he found it unnecessary to consider the arguments made in relation to Article 37 of the Constitution.
10. The learned judge then considered each limb of the argument advanced in support of the submission that the procedures of the 2015 Act are entirely insufficient to meet the requirements of, and therefore are inconsistent with, Article 40.3 of the Constitution. These related to the fact (i) that an adjudication officer did not have to have a legal qualification, (ii) that there was no provision enabling such officer to administer the oath or affirmation, (iii) that likewise there was no express provision for the cross examination of witnesses and finally, (iv) that all hearings before such an officer are held otherwise than in public. For the reasons outlined in his judgment, he rejected each aspect of this submission.
11. On an application for leave, the Supreme Court permitted a direct appeal on all of the grounds advanced by the appellant, and also permitted the State’s cross appeal with regard to the judge’s finding on requirement No. (v) of the McDonald test. ([2020] IESCDET 93). It is those issues which I now turn to.
Constitutional Provisions (1937):
12. The following Articles of the Constitution insofar as relevant read as follows:-
(i) Article 6:
“6.1 All powers of government, legislative, executive and judicial, derive, under God, from the people, whose right it is to designate the rulers of the State and, in final appeal, to decide all questions of national policy, according to requirements of the common good.
6.2 These powers of government are exercisable only by or on the authority of the Organs of State established by the Constitution.”
(ii) Article 34 :-
“1. Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution, and, save in such special and limited cases as may be prescribed by law, shall be administered in public.
2. The court shall comprise:
(i) Courts of First Instance;
(ii) A Court of Appeal; and
(iii) A Court of Final Appeal
3.1° The Courts of First Instance shall include a High Court invested with full original jurisdiction in and power to determine all matters and questions whether of law or fact, civil or criminal.
2° …
3° …
4° The Courts of First Instance shall also include courts of local and limited jurisdiction with a right of appeal as determined by law.”
(iii) Article 37:
“37.1 Nothing in this constitution shall operate to invalidate the exercise of limited functions and powers of a judicial nature, in matters other than criminal matters, by any person or body of persons duly authorised by law to exercise such functions and powers, notwithstanding that such person or such body of persons is not a judge or a court appointed or established as such under this Constitution.
37.2 …”
Constitutional Provisions (1922):
13. The provisions of the 1922 Constitution corresponding to those above quoted, are as follows:
(i) Article 2:
“2. All powers of government and all authority, legislative, executive and judicial, in Ireland are derived from the people of Ireland, and the same shall be exercised in the Irish Free State (Saorstát Eireann) through the organisations established by or under, and in accord with, this Constitution”.
(ii) Article 64:
“64. The judicial power of the Irish Free State (Saorstát Eireann) shall be exercised and justice administered in the public courts established by the Oireachtas by judges appointed in manner hereinafter provided. These courts shall comprise Courts of First Instance and a Court of Final Appeal to be called the Supreme Court. The Courts of First Instance shall include a High Court invested with full original jurisdiction in and power to determine all matters and questions whether of law or fact, civil or criminal, and also courts of local and limited jurisdiction, with a right of appeal as determined by law.”
There is no provision akin to that of Article 37.
Separation of Powers – Brief History
14. The concept and notion of a constitutional tripartite separation of powers is to be found in the inspiring and enlightening writings of Blackstone, where such a proposition was enunciated with both clarity and foresight more than 250 years ago ( Commentaries on the Law of England : Vol. 1, p. 267: 1769: Dublin Ed.). Whether it was he or others (Montesquieu: Esprit des Lois(1748)), who were the original thought inspiring individuals behind this framework, matters now of historical importance only: whoever, it has found widespread acclaim and approbation ever since, as evidenced by its adoption in multiple constitutional systems.
15. Under our constitutional system, that structure was given effect to by creating the legislative, the executive and the judicial. Post 1922 and after some transitional and temporary measures, the legislative power of the Irish Free State was established, inter alia, by the Electoral Act 1923, the executive power by the Ministers and Secretaries Act 1924, and the judicial system and courts administration by the Courts of Justice Act 1924, and the Court Officers Act 1926, respectively, all as amended, with the judicial power operating under the overall guidance of Article 64. That Article, which was not dissimilar to the third Article of the US Constitution, together with Article 2, were designed to ensure that each organ of government did not impermissibly encroach on the other, with the ultimate authority to determine any asserted trespass resting on the judiciary.
16. Under both Article 2 of the 1922 Constitution and Article 6(1) and (2) of the 1937 Constitution, provision was made for the judicial power of government to be exercised only by the organ of the State designated in the Constitution for that purpose, namely the Courts as staffed by judges duly appointed in accordance with law. This is a fundamental attribute of the sovereignty of the State and the constitutional formation adopted by its people. Therefore, justice, its administration and its administration by such judges, is a red line constitutional imperative. Any relaxation of this intrinsic principle, which must be found within the Constitution itself, is by way of a derogation from this norm. One such is that as provided for in Article 37, which as stated, had no equivalent in the State’s first Constitution.
17. That Article by its terms permits non-judicial bodies in matters other than criminal, to exercise limited functions and powers of a judicial nature. There is therefore an inextricable link and relationship between both Article 34 and Article 37. The appropriate delineation between one from the other may well involve a consideration of both. At least this will be so, in some circumstances: in others not necessarily the case, as for example where in the first instance the activities under scrutiny are found not to constitute the administration of justice. Where however uncertainty might exist, an examination of the parameters of each may be required. When so doing, I am not at all certain that it is either possible or desirable that factors, which may be considered more appropriate to one provision, should be excluded from the assessment of the other, i.e. the dicta of Kingsmill Moore J. on Article 37 (para. 34 infra). In any event, when the landscape is looked at, questions arise as to what is the correct meaning of ‘justice’ in Article 34, which sometimes is referred to as the ‘administration of justice’, or the ‘judicial function’ or the ‘judicial power’, with the corresponding questions under Article 37 being what is understood by the words “functions and powers”, and particularly what meaning is to be ascribed to the word “limited”, which qualifies, in a qualitative sense, that phrase. Where statutory provisions are correctly classified as “limited”, their exercise, even by non-judicial persons, will attract the cover of that constitutional provision.
18. The mere recitation of the relevant provisions of these Articles will not to any appreciable extent enlighten this exercise of differentiation, nor will such a similar undertaking relative to other Constitutions necessarily help in this regard, (e.g. the third Article of the US Federal Constitution and s. 71 of the Commonwealth of Australia Constitution Act 1990). One must therefore look at the relevant authorities, which discussed these issues particularly where their resolution was necessary in any given situation. In mentioning case law, I am not of course ignoring the academic literature, but surprisingly enough whilst a good deal has been written about the individual components of Article 34, little enough has appeared with regard to Article 37.
Pre-1937:
19. The foremost authority in this area under the 1922 Constitution is undoubtedly Lynham v. Butler (No.2)[1933] I.R. 74 (“Lynham v. Butler (No.2)”), which shows a fascinating history of why litigation should be avoided if at all possible: on several occasions such was beyond the grasp of both Francis Lynham and the Reverend Dr. Butler. That history however, falls just short of the inventiveness with which the government dealt with Mr. Lynham’s appeal to the Privy Council in 1925 against the Supreme Court’s dismissal of his appeal in what are known as the “Ejectment Proceedings” case ([1925] 2 I.R. 82 (H.C.): [1925] 2 I.R. 231 (S.C.)): such occurring at a crucial time in the State’s ongoing separation from the United Kingdom (Dáil Debates, 3rd February: Seanad Debates, 24th February and House of Lords Debates 3rd March, 1926). Moreover, the acceptance of the appeal by the Judicial Committee, which had earlier rejected each of the three applications previously made, was all the more surprising in view of the well declared Irish insistence on how restrictive that possibility should be: in fact, Article 66 has been described by some, as being for the government, the “most obnoxious feature of the [1922] Constitution” (Kohn – the Constitution of the Irish Free State p. 335/356).
20. After what can only be described as a markedly hostile engagement between the parties, ferocious and relentless at times, over the ownership of the subject lands, Mr. Lynham sought the sum of £1,635, either as mesne profits or damages for the defendant’s unlawful occupation of the lands from August, 1924 to April, 1928. The claim was resisted on multiple grounds, the only one of interest to us was whether the Lay Commissioners in arriving at a particular decision were engaged in the exercise of judicial power under Article 64 of the Constitution: if so, for a variety of reasons the claim could not succeed with follow on consequences for the ownership of the lands. This very brief description of the background does not do justice to the intricacies of the encounter: for those interested, such details are fully set out in the judgment delivered by Kennedy C.J. In any event, the net point of interest was whether or not Article 64 was violated.
21. What can be seen from his judgment, is that the Chief Justice identified the following features as being inherent in the administration of justice.
• The existence on the civil side of a recognised legal dispute between parties, involving rights or liabilities and on the criminal side the issue of guilt or innocence and where appropriate, the imposition of penalty: it involved further, on the civil side,
• The making of a decision on such disputes,
• The determination in final manner of those disputes, and
• The enforcement of the resulting court order backed where necessary by executive support.
The oft quoted passage upon which this summary is based, appears at pp. 99/100 of the report.
22. In applying the principles outlined to the situation at hand, the conclusion reached was as follows:-
“In my opinion, the Land Commissioners are; like the Estates Commissioners, primarily an administrative body with a great variety of ministerial duties to perform. Their duties are too numerous and too diverse to permit of an exhaustive examination on a single occasion so as to put one in a position to affirm that the statutes have not purported to impose on them any duty of other than ministerial character. The nature of some of their ministerial duties requires that they be performed judicially, in the sense that they must be performed with fairness and impartiality in such a way as not to offend against the cannons of natural justice, which requirement however will not convert a ministerial act into a judicial act in the sense of an act which must be performed by a judge in a court of justice.” (104/105 of the report)
Concurring judgments were delivered by both Fitzgibbon J. and Johnston J., to which further reference will be made at a point where I will endeavour to explain the rationale behind the court’s general approach to, and assessment of, the powers so exercisable by the Land Commission.
23. Leaving aside the inter partes dispute for a moment, what is immediately apparent is that, Lynham v. Butler (No.2) in particular, but also some other cases have contributed significantly to the discussion on the administration of justice and provided a distinguished transitional platform for the subsequent decisions in both Re Solicitors Act, 1954[1960] I.R. 239 and in McDonald. That single judgment of the Chief Justice contributed no less than four of the five characteristics, each of which is immediately recognisable, in McDonald v. An Bord na gCon[1965] I.R. 217 (“McDonald”). Although not mentioned by the Chief Justice, Palles C.B. in an earlier case had also highlighted as an aspect of the judicial power, the making of a final determination affecting rights or liabilities: the full quotation and the context in which the point is made can be found in the report: (R (Wexford County Council) v. Local Government Board[1902] 2 I.R. 349 at 373/374).
Post-1937:
24. As stated earlier in this judgment, the substance of Article 37 had no comparable expression in our constitutional model before then, and so little insight as to its meaning can be deduced from the case law during the earlier period. However, as there is an obvious association between that provision and Article 34 and as both feature in most of the decisions which are about to be discussed, it would be appropriate at this juncture to briefly consider the history of the provision, and against that background consider thereafter the relevant authorities.
Article 37 – General History
25. Although it is entirely unsurprising that a new provision, like Article 37.1, reflecting the ongoing birth and growth of this nation, even if still in its infancy, was included in the Constitution, it is perhaps notable that in the core and central areas of justice, judicial power and the administration of both, this measure by its plain wording makes permissible the exercise, by non-judges, of limited judicial functions and powers (excepting criminal matters), something not contemplated or envisaged by the laws of the Irish Free State. This, in contrast with Article 34 which had a very strong forbearer in Article 64 of the 1922 Constitution. Therefore, Article 37.1 has a different antiquity to its more core sister provision and accordingly, falls to be considered as such. Without in any way attempting to ascertain the definitive intentions or motives of those involved, there are some nuggets in the public domain which can be gleaned about the history and purpose behind that provision.
26. Documentation from the first two meetings of the Constitutional Review Committee (1934) shows that it seriously considered the drafting of an entirely new Constitution, rather than simply confining its remit to an examination of the existing text. Soon however, this was seen as too mammoth a task, and although that ambition was curtailed, nonetheless its recommendations were to become highly influential in the drafting of the 1937 Constitution. This is evident by the fact that many of its innovatory features, including Article 37, can be traced back to it. Its final report was given to Mr. de Valera, then Taoiseach, on the 3rd July, 1934. Of the four Committee members; Stephen Roche, a secretary in the Department of Justice; Michael McDunphy, assistant secretary in the Department of the President of the Executive Council; John Hearne, legal adviser in the Department of External Affairs and Philip O’Donoghue, assistant to the Attorney General; the three last mentioned all went on to play a significant role in the preparation of the 1937 Constitution, which was a clear indicator of the significance of their work.
27. Article 64 was, unsurprisingly, identified by the Committee, as one of the Constitution’s fundamental provisions. This was subject, however, to a textual amendment being made which would reflect, according to the Committee “the present position in which judicial or quasi-judicial functions are necessarily performed by persons who are not judges within the strict terms of the Constitution, e.g. Revenue Commissioners, Land Commissioners, Court Registrars etc.”. Stephen Roche drew up what the amendment might look like: it began as follows:-
“Provided for the removal of doubts and for the more expeditious and economical administration of justice and transaction of business, that nothing in this Article shall be deemed to render invalid any enactment, or any role, order or arrangement made under the authority of any enactment…” (G. Hogan, ‘ The Constitution Review Committee of 1934’, Ireland in the Coming Times: essays to celebrate T.K. Whitaker’s 80 years, p. 354 – 355)
As Hogan observes, this draft was clearly anticipatory of what became Article 37.1.
28. Later, as work on this continued, two members of the House (Mr. John A. Costello and Mr. Patrick McGilligan), suggested that in its entirety this proposal should be abandoned. This prompted Mr. O’Donoghue to write to the Office of the Attorney General (Patrick Lynch K.C.) expressing, his deep concern at this turn of events, his defence of the proposal and, most interestingly, articulating the reasons he believed it should remain. In a memorandum written on the 26th May, 1937, he explained that the provision was “designed to avoid the difficulties and litigation which were experienced in the past when the exercise of powers of a judicial or quasi-judicial nature was challenged in the Courts on the grounds that these were matters reserved for the Courts” (G. Hogan, ‘The Origins of the Irish Constitution 1928-1941’ p. 580). Only with the benefit of hindsight can we now observe that whatever other effects the provision may have had, litigation of the nature described, was perhaps not avoided to the extent that Mr. O’Donoghue may have been hoping for. In a further memo, two days later, he stated that the suggested deletion would deprive certain bodies of their functions and would be extremely dangerous: he mentioned a cohort of such bodies, including County Registrars and the numerous Court of Referees, Appeal Committees and Appeal Tribunals operating under legislation such as the Unemployment Insurance Acts, National Health Insurance Acts, Old Age Pension Acts. Practical matters regarding the everyday running of the State appear to have been at the forefront of his concern.
29. Thus, to some extent, it seems that the intention behind Article 37.1 was relatively straightforward and borne out of pragmatism. Both before and after 1922, many bodies existed, authorised by statute, to make decisions on facts and after argument was had, which could affect the rights and liabilities of people: not altogether different in one respect from court intervention. Although the practice met some resistance, the same largely went unchallenged until the 1930 proceedings, which resulted in Lynham v Butler (No 2)[1933] I.R. 74. As indicated elsewhere, it was of particular significance that the subject matter of the case was the Land Commission. Indeed, when addressing the Dáil on the 2nd June, 1937 (Dáil Debates), Mr. de Valera is quoted as saying:-
“There were questions about the Land Commission, as to whether their functions were of a judicial character or not … So as not to get tied in the knot that judicial powers or functions could only be exercised by the ordinary courts established here, you have to have a provision of this type.”
It is against this backdrop that the insertion of Art. 37.1 should be viewed.
30. However interesting this brief look at history is, it cannot determine the meaning of the provision in a constitutional sense. As J. P. Casey cautioned, to know the broad purpose of the Article “does not carry one very far”. (Casey, ‘The Judicial Power under Irish Constitutional Law’ ILCQ (1975) 24(2) p. 304, 308). This has to be a matter for the judicial arm of government.
Case Law:
31. The leading authority on the non-Land Commission side which firstly considered in depth the provisions of both Article 34 and 37 of the Constitution was the case of In the Matter of Solicitors Act 1954: O’Farrell & Gorman[1960] I.R. 239 (“O’Farrell & Gorman”). In that case the Disciplinary Committee of the Incorporated Law Society of Ireland, set up by s. 13 of the Solicitors Act 1954 (“the 1954 Act”), had the powers, after inquiry and having found established misconduct, to suspend a solicitor from practice, to order that his name be removed from the Roll, to compel the making of restitution or satisfaction to any aggrieved party, to make an order for costs against him (all within s. 18), and to order that the findings be published in Iris Oifigiúil, three daily newspapers and, as is their right, in the Society’s Gazette (s. 21(2) of the 1954 Act). In respect of both Mr. O’Farrell and Mr. Gorman, the Committee duly exercised these powers save that relating to restitution and satisfaction: such giving rise to the constitutional challenge which was asserted on their behalf. The issue was whether or not the conferring and the use of those powers constituted an exercise of judicial power and if so, whether such could avail of the provisions of Article 37. The single judgment of the Supreme Court was that of Kingsmill Moore J.
32. The learned judge made it clear that a tribunal or body which operates by contractual consensus were not those under discussion: their powers are not statutorily based or derived, and existed solely in respect of those who have agreed to be bound by whatever rules and regulations govern the particular organisation which they have joined. Clubs, Trade Unions and some professional bodies are examples. Rather, it was those Associations which rely upon the state or the legislature for their efficacy which were in issue. (p. 264)
33. Having quoted extensively and with obvious approval from Lynham v. Butler (No.2), Fisher v. Irish Land Commission[1948] I.R. 3, the State (Crowley) v. Irish Land Commission[1951] 1 I.R. 250, and Foley v. Irish Land Commission[1952] I.R. 118, the learned judge then conducted a survey of some Australian cases: in particular, Huddart, Parker & Company v. Moorehead,[1909] 8 CLR 330, the Waterside Workers case [1918] 25 C.L.R. 434, and Shell Company of Australia v. Federal Commissioners of Taxation[1931] A.C. 276, observing in the process that in reality such cases were more helpful in identifying what was not the administration of justice, rather than what was. In any event, from the resulting exercise, one can discern some aspects, but not all, of what is now regarded, or at least up to the present case has been regarded, as the administration of justice.
34. The conclusion reached from this survey was that a precise and exhaustive definition of the concepts involved were extremely difficult if not impossible to achieve. This because of the variety of powers and functions, either singularly or collectively, which a legislature can entrust to various bodies which are not courts in a constitutional sense, with such powers and functions to be exercised by persons who are not judges, also in that sense (271). Therefore, one must look at each entity and the particular powers under scrutiny, so that a decision can be made, having regard to the observations outlined in the case law. Such led to the following statement:-
“Eventually the question whether any particular tribunal is unconstitutional must depend on whether the congeries of the powers and functions conferred on the tribunal or any particular power or function is such as to involve the pronouncement of decisions, the making of orders, and the doing of acts, which on the true intendment of the Constitution are reserved to judges as being properly regarded as part of the administration of justice and not of the limited character validated by Article 37” (p. 264).
35. The learned judge endeavoured to put some descriptive terms on Article 37. Having rhetorically asked what was the meaning of the word “limited”, he immediately discounted any association with the jurisdiction of the courts, as in his view the concept of “limited jurisdiction” was covered by Article 34.3.4 of the Constitution. Secondly, it was the “powers and functions” which must be limited and not either the scope of their exercise, or the number of such powers statutorily conferred. If any of those were intended to govern the phrases, the Constitution would have said so.
36. He then continued:
“A tribunal having but a few powers and functions but those of far reaching effect and importance could not properly be regarded as exercising “limited” powers and functions. The judicial power of the state is by Article 34 of the Constitution lodged in the courts, and the provisions of Article 37 do not admit of that power being trenched upon, or of its being withdrawn piecemeal from the courts. The test as to whether a power is or is not “limited” in the opinion of the court, lies in the effect of the assigned power when exercised. If the exercise of the assigned powers and functions is calculated ordinarily to effect in the most profound and far reaching way the lives, liberties, fortunes or reputations of those against whom they are exercised they cannot properly be described as “limited”.” (263 – 264)
37. Turning to the provisions of the 1954 Act, the learned judge also noted the existence of the procedural powers vested in the Committee which in respect of the following, were the same as if it was the High Court or a judge thereof: namely, the attendance of witnesses, the giving and testing of evidence on oath, the production of documents and the taking of evidence on commission. Further, whatever might constitute a court contempt could equally constitute a Committee contempt, which if so found could be certified to the High Court for further inquiry. (s. 19 of the 1954 Act).
38. In addition to his general views on both Article 34 and 37, it is necessary to also bear in mind three further observations which he made by reference to the powers which the Disciplinary Committee had. Firstly, he was satisfied that the power to strike off was “disciplinary” and “punitive” in nature and that a sanction of such severity may have more consequences for an individual than a term of imprisonment. It mattered not in his view that the conduct alleged was not strictly that of a ‘criminal matter’, because in light of the repercussions which arose, the adjudication on such conduct demanded qualities of impartiality, independence and expertise which are required of the holder of a judicial office. Secondly, whilst noting that the power to make a restitution or satisfaction order would only arise if misconduct had been established, nonetheless, such misconduct could include fraud or negligence which, may well involve contentious and difficult questions, and which if before a court of law, damages by way of restitutio in integrum could easily follow. In that respect, the power of the Committee would be no different from the court. And thirdly, he placed considerable reliance on the role which historically the court played in striking the name of a solicitor off the Roll: such stemmed from its ultimate superintendence over and its overarching authority to ensure a practitioner’s utmost propriety.
39. Given therefore the object of the powers, the functions vested in the Committee, the nature and extent of the inquiry involved, and the adjudicative role demanded, as well as the punitive, restitution and historical aspects last mentioned, it was the court’s opinion that such were unconstitutional “…both because the infliction of such a severe penalty on a citizen is a matter which calls for the exercise of the judicial power of the state and because to entrust such a power to persons other than judges is to interfere with the necessities of the proper administration of judges”. (275). Neither this reasoning or the underlying issues involved, were seriously addressed in the further solicitor’s case decided a few months later. (In the Matter of the Solicitors Act 1954: D.A. Solicitor:[1961] 95 ILTR 60).
40. The importance of this judgment does not simply rest on the court’s confirmation that the features identified in Lynham v. Butler (No.2) (para. 21 above) are appropriate to the administration of justice, but also in its assessment of Article 37 (para. 125 of this judgment). In the period since its delivery, much discussion has taken place regarding certain aspects of it. However, surely what was said about criminal matters as such cannot be faulted: perhaps the creation of an offshoot by treating the Committee’s power as quasi-criminal (para. 38 above), could be up for discussion, whilst undoubtedly the court’s treatment of how the functions and powers are “limited” as well as the far reaching effect test have been the subject of much attention.
The Follow-on Regime:
41. The Oireachtas moved swiftly to deal with the infirmity identified in O’Farrell and Gorman. Section 5 of the Solicitors (Amendment) Act 1960, repealed ss. 13, 14(1) and (2) and 15-23 inclusive (thus repealing the impugned sections, see para. 31 above) and by virtue of s. 7(3)(a) and (b) of the 1960 Act put a new procedure in place whereby the Disciplinary Committee had to embody its findings and the recommendation as to sanction, in a report and based thereon make an application to the High Court, which had the power to make a variety of orders, including one striking the solicitor’s name off the Roll (s. 8(1)(a)(i) of the 1960 Act). Ultimately, that statutory mechanism was held to satisfy the fault line identified by Kingsmill Moore J., but not without some initial challenge, arising mostly within the professions.
42. In a doctor’s case arising under the Medical Practitioners Act 1978, Finlay P., as then, had no difficulty in distinguishing the regime in existence under the 1954 Act with that provided for in ss. 45 – 48 of the 1978 Act, under which the Medical Council had to seek High Court approval to suspend a doctor, remove his name from the register or attach conditions to his practising certificate. As such, the Council’s role could not be said to constitute the administration of justice. In respect of its powers to advise, admonish or censure, or to publish a finding of misconduct or unfitness: if it could be said that these were final in any respect, then such were, in the court’s view, clearly limited in their effect and consequence, and accordingly were covered by Article 37. From the reference last made, it is apparent that O’Farrell & Gorman was both applied and approved (M. v The Medical Council[1984] I.R. 485).
43. Several subsequent pieces of legislation such as the Dentists Act 1985 and the Veterinary Surgeons Act 1960, both as amended, implemented that procedure which prevented the underlying process from any constitutional frailty which might otherwise have resulted from O’Farrell & Gorman. In respect of provisions, identical to those relating to dentists, the Supreme Court in C.K. v. Bord Altranais[1990] 2 I.R. 396, when dealing with the Nurses Act 1985, and having affirmed the correctness of M. v. The Medical Council and the related decision of In Re M. (a Doctor)[1984] I.R. 479, confirmed the validity of this approach and pointed out that “the necessity for that procedure to vest that power unequivocally in the court, in my view, arises from the constitutional frailty which would attach to the delegation of any such power to a body which was not a court established under the Constitution, having regard to the decision of the former Supreme Court in Re the Solicitors Act[1960] I.R. 239”. Such a legislative step was therefore entirely justified with Finlay C.J. expressing the view that “…it is the court who should make the vital decisions” (403).
McDonald v. Bord na gCon [1965] I.R. 217 (“McDonald”):
44. McDonald was the first real case in which a definitive overall description of the ‘administration of justice’ was outlined. As is apparent however, it was not of course the first case to discuss the subject: many previously had joined the debate, an example of which is the judgment of Davitt P. (the State (Shanahan) v. the Attorney General[1964] I.R. 239 (“Shanahan”). The fact that the learned President included in the four points mentioned by him the right to compel the attendance of witnesses or parties, (not referenced in McDonald), but did not mention the historical aspect of the judgment of Kenny J., does not render both decisions inconsistent: rather, as with many other judgments, the observations made were intended as a further contribution. It seems to me that the observations of the President in Shanahan were intended as an addition in this area and not as some sort of rigid or strict definition of the administration of justice.
45. In any event, the facts in McDonald, whilst important of course to the decision in both courts, are not altogether crucial to the point of principle as in the days before Cahill v. Sutton[1980] I.R. 269 (“Cahill”), very few standing restrictions applied to a legislative constitutional challenge: it was therefore the scope of the overall statutory provisions which was under review. In any event, the case involved the making of an exclusion order by Bord na gCon (“the Board”), pursuant to the exercise of its statutory powers, with the consent of the Irish Coursing Club (“the Club”), both of which were established by the Greyhound Industry Act 1958 (“the 1958 Act”), whose fundamental object was to develop, improve and regulate that industry in all of its major facets. The Board was given power to make regulations, which it did, regarding matters such as the establishment, use, supervision and control of racetracks, the conduct of race meetings, the control of greyhound training for reward, as well as the holding and conduct of public sales of greyhounds. The effect of such regulations was that no such activity could be engaged in without a license being granted by the Board or in the case of an on course bookmaker, without a permit being obtained. In addition, the Board and its authorised officers were given investigative powers: as a result such officers could investigate any occurrence observed by him or brought to his notice, relating to any race or the performance of any greyhound at a race meeting, or when in attendance at a public sale. Further, pursuant to s. 45 of the Act, a disqualification order could be made in relation to specified greyhounds which were kept, owned, trained or managed by a named person, which had the effect, of preventing their registration in the Irish Greyhound Stud Book, of being entered in any authorised greyhound race or coursing meeting or of being offered for sale at a public sale of greyhounds. It was however the powers given under s. 47 which were impugned on constitutional grounds.
46. The Board with the consent of the Club or the Club with the consent of the Board (depending on which body was purporting to exercise a given power), was authorised to make an “exclusion order” under s. 47 prohibiting a person from being at any greyhound racetrack, any authorised coursing meeting or any public sale of greyhounds. Provisions were made for notifying the person concerned of any proposed order and affording him an opportunity of making representations which would be considered. If the order was made, its enforcement was provided for by subs (7), (8) and (9) of the Act: the subsections are in identical form, save that they relate to greyhound racetracks, coursing meetings and the public sale of greyhounds respectively: accordingly, a reference to subs (7) would be sufficient: –
“7. Where a person to whom an exclusion order applies is found on any greyhound racetrack, any person acting under the direction of the licensee under the Greyhound Racetrack License relating to the track may remove such first mentioned person therefrom and for this purpose may use such force as may be reasonably necessary.”
Such an order was made in respect of the plaintiff/respondent, who mounted, inter alia, a constitutional challenge to the provisions in question: such was determined as a preliminary issue on the application of the Attorney General. Kenny J., then of the High Court, determined the matter in his favour, but even though the legal principles outlined by him were endorsed by the Supreme Court, his decision was overturned on the merits. Centrally it is the High Court judge’s treatment of what constitutes the administration of justice and in the process the judge’s reference to Article 37 of the Constitution, which are directly in focus in this case.
47. The following five features are identified as being characteristic of what is and what constitutes the administration of justice:-
“(1) A dispute or controversy as to the existence of legal rights or a violation of the law: [subject matter]
(2) The determination or ascertainment of the rights of parties or the imposition of liabilities or the infliction of a penalty: [decision]
(3) The final determination (subject to appeal) of legal rights or liabilities or the imposition of penalties: [finality]
(4) The enforcement of those rights or liabilities or the imposition of a penalty by the court or by the executive power of the State which is called in by the court to enforce its judgments: [enforcement]
(5) The making of an order by the court which as a matter of history is an order characteristic of courts in this country. [characteristic of courts]” (pp. 230 – 231)
All of these matters were complementary to each other, and pertained to establishing by decisive decision, legal rights and their enforcement by resulting order on the civil side, and the infliction of sanctions or penalties on the criminal side. Self-evidently the learned judge was fully alive to the existence of many other incidences of justice (para. 78 below) but clearly felt that such were so obvious and well-known: their specific citation was not required.
48. Holding that the overall effect of an exclusion order was the creation of a legal prohibition against the subject person being at any greyhound racing track, at any authorised coursing meeting or from attending any public sales of greyhounds, Kenny J. went on to find that the process involved, the powers conferred, and the impact of their exercise possessed all of the above characteristics. In short, these involved (i) a dispute, that is whether or not the person acted in violation of the regulations/code of conduct, and (ii) a determination that such person had been guilty of the allegation(s) made against him, with the resulting imposition of a liability, namely the making of an exclusion order: further, (iii) a determination which was final in that there was no appeal on the merits against it, (iv) the power to have an exclusion order enforced if necessary by physical force, as well as the powers of the Control Committee established by the Regulations, to impose unlimited fines, and finally (v) the order was similar in both form and effect to an injunction against trespass which is characteristic of orders which the court traditionally makes in this jurisdiction. Accordingly, the plaintiff had established that the power so conferred constituted an exercise in judicial power.
49. When referring to Article 37, Kenny J. firstly dealt with a submission that the proceedings before the Board were criminal in nature and therefore fell foul of Article 37in limine. That submission was rejected. He then went on to acknowledge that the Board was limited in certain respects in that it had no power to summon witnesses, or to administer the oath and evidently, was confined in its operation to the remit outlined in the Act. But in his view, these considerations were irrelevant in light of a passage from O’Farrell & Gorman, (264), which specified that the real test was ‘to look at the effects or consequences’ of the assigned power when exercised. Through that prism, Kenny J. had no doubt but that Article 37 could not be invoked. From the resulting decision the respondent Board appealed to the Supreme Court.
50. This Court via the judgment of Walsh J., whilst accepting the five point test as outlined by the learned trial judge (p. 244), nonetheless held, on the application of those principles to the statutory provisions in issue, that when the Board/Club were utilising s. 47, only one of the five requirements could be satisfied. With great respect, it is not easy to understand this conclusion, particularly in view of the reasons offered for it by the court. Given the acceptance of the test and the uncontroverted circumstances, it is difficult to see how there could have been such a divergence between the courts. A dispute undoubtedly existed which involved the making of a decision without an appeal on the merits: a very strong argument can be made in support of the trial judge’s view as to the effect of an exclusion order; the actual and rather plain wording of s. 47(1) so confirms – it “prohibits a person from all of the following”, being on a greyhound racetrack, at a coursing meeting or at a public sale of greyhounds. In addition, on many occasions the court’s intervention for a second or subsequent time will be required in the case of a variety of civil proceedings. Further, the court’s discussion on Article 34 was extremely limited and extended only to generalised conclusions that its provisions were not operative in the context of the case. There was no discussion on the provisions of Article 37. Overall, given the striking difference in outcome, it is a matter of serious regret that this Court did not engage more fully with the agreed principles and agreed facts, relative to various provisions of the Act, in particular section 47. Be that as it may, what emerges from McDonald in the context of this case are the five features identified by Kenny J.
51. It is interesting to note that this was not the first occasion on which the learned judge considered what elements might constitute the administration of justice. The forerunner was Deaton v. The Attorney General & Anor[1963] I.R. 170 (“Deaton”), where the issue was whether the powers of the then Customs Commissioners under s. 186 of the Customs Consolidation Act 1876, “to select” the punishment for an accused person, if convicted of an offence under the Act, was an exercise of judicial power. Neither the facts or the outcome are material to us, save to note that one such option had to be adjusted in light of this Court’s decision in Melling v. O’Mathghamhna v. the Attorney General[1962] I.R. 1. In his judgment, Kenny J. discussed what became features Nos (i), (iii), (iv) and (v) in McDonald, although in light of the approach adopted, he felt it unnecessary to decisively pronounce on any of these matters. Article 37 did not arise in that case as the type of revenue proceedings involved were, by the date of the hearing, undoubtedly criminal in nature (Melling). However, the debate engaged in is interesting in the context of whether or not all five requirements must exist so as to constitute the administration of justice, particularly when the learned trial judge himself felt that the absence of a justiciable controversy or of a final determination may not be decisive or conclusive as to whether the act is or is not an exercise of the judicial power (175).
52. Notwithstanding these remarks, McCarthy J., in Keady, interpreted a passage from the judgment of Walsh J. in McDonald (244), as requiring all five: Purcell v. Central Bank of Ireland[2016] IEHC 514 relied on Keady and said the same (p. 53), with O’Flaherty J. in Plunkett, stating “it seems clear that any activity to qualify as being an administration of justice, each of the five McDonald test would be satisfied (the State (Plunkett) v. Registrar of Friendly Societies (No.1)[1998] 4 I.R. 1 at 5. The deduction made by McCarthy J. is, may I respectfully suggest a possible overreading of the passage relied upon as I do not believe it was so intended: rather, I feel that Walsh J. was only dealing with the circumstances of the case before him. In any event, no further debate took place in any of these cases or elsewhere on this rather important question and, in light of my conclusion on the Article 34 issue, I do not find it necessary to further explore this issue, but would simply comment that the matter is not foreclosed, certainly not on the basis identified by McCarthy J..
53. One further case decided in 1961 can usefully be alluded to at this point. By virtue of the Municipal Corporations Act 1882, and the Municipal Elections (Corrupt and Illegal Practices) Act 1884, as adapted in this country, the powers formerly exercised by the High Court relating to petitions arising out of municipal elections became vested in election courts, to be presided over by a senior barrister appointed in the manner provided for by that legislation. Issues arising out of parliamentary elections however remained with the High Court. In response to a petition questioning the legality of his appointment to Dublin City Council, Mr. Cowan sought a declaration that the intended hearing before the election court (Mr. Richard N. Cooke S.C.) violated Article 34 of the Constitution. The High Court so agreed.
54. Having outlined the relevant provisions of both Acts, the 1882 and 1884 Acts, Haugh J. quoted with obvious approval from Lynham v. Butler (No.2) and from O’Farrell & Gorman, including the passage from the judgment of Kingsmill Moore J. regarding Article 37 of the Constitution (p. 420-422). Being satisfied that an election court when hearing such petition was engaging in precisely the same class of work as the High Court did pre-1882, and still does when hearing a parliamentary election petition, it followed in his view that such constituted the administration of justice. In addition, as the court could make findings which would affect in a most profound and far reaching way the lives, liberty, fortune and reputation of those affected, such powers could not avail of the protection of Article 37 of the Constitution. In essence, this was a direct application of the Supreme Court decisions in the cases mentioned, in particular O’Farrell & Gorman. This in my view was a stand-alone part of his decision and the importance of such conclusion on this point is not undermined by the additional finding that since an election court might engage, within jurisdiction, in matters partly criminal, that aspect of its powers also violated Article 37 of the Constitution (Cowan v. Attorney General[1961] I.R. 411).
The Subsequent Cases:
55. The five-characteristic formulation from McDonald and the reasoning of Kingsmill Moore J. from O’Farrell & Gorman have, generally, enjoyed widespread judicial support with nothing in the judgment of O’Flaherty J. in Keady to credibly challenge O’Farrell & Gorman. In Central Dublin Development Association v. AG[1975] 109 I.L.T.R. 69, the same judge, Kenny J., applied McDonald in holding that some provisions of the Local Government (Development and Planning) Act 1963, constituted the administration of justice, but went on to conclude that in accordance with the judgment of Kingsmill Moore J, the same were entitled to the protection of Article 37.
56. McDonald was applied by this Court in Goodman International v. Hamilton (No.1)[1992] 2 I.R. 542, on a straightforward basis (589/590: S.C.: 556: H.C.) as it was by the High Court in Wheeler v. Culligan[1989] I.R. 347 (Costello J.), and likewise In The Application of Neilan v. DPP[1990] 2 I.R. 267 (Keane J.): see also Brady v. Haughton and Others[2005] IESC 54, [2006] 1 I.R. 1, Cassidy v Commissioner of an Garda Síochána and Others[2014] IEHC 386 (Barr J.), The two most recent cases are those of O’Connell v. The Turf Club & Ors[2017] 2 I.R. 43 (“O’Connell”), and Damache v. Minister for Justice & Ors[2020] IESC 63 (“Damache”). In the former, O’Farrell & Gorman and McDonald were applied in both the judgments of Hardiman J., who expressed no reservations whatsoever about either decision (p. 64-67) and by O’Donnell J., with whom the other members of the court agreed, (p. 98-100). On the facts, Hardiman J. was satisfied that “certain [but not all] of the criteria” set out in McDonald were satisfied, at least to the extent that the exercise of the power “may arguably constitute an administration of justice” (p. 66). On the other hand, O’Donnell J. could not see any compliance with requirements (iv) and (v) of McDonald.
57. Although explaining what is undoubtedly true, namely that the boundary line between judicial power and administrative power is not easy to determine, nonetheless, O’Donnell J. continued “it is now…much too late to seek any comprehensive theory, even if such was desirable. Instead the resolution of these cases must be found within the existing case law and the guidance which they offer”, citing in support the report of the Constitutional Review Group 1966, at p. 55. (para. 93). See also Damache where in the context of a purported revocation of a certificate of naturalisation , this Court unanimously held that such a revocation, if made could not be enforced in its own right or converted into a judgment (O’Connell 94) so as to achieve the deportation of the applicant: for that purpose an entirely different procedure would be necessary. Accordingly, in applying the McDonald criteria, point No. (iv) and for other reasons point No. (v) were not satisfied with the result that Article 34 was not infringed. (para. 67-71)
Suggested Pull-Back:
58. Despite the longstanding support underpinning the above approach to both Article 34 and Article 37, some of my colleagues have expressed the view that the principles involved, never somehow gained the traction which might have been anticipated after those cases were decided. In other words, there was an expectation that such might have led to the constitutional compatibility of many statutory bodies being intensely scrutinised with a partiality toward their demise. The fact that this did not occur is relied upon to recant from the widespread approval which both authorities have since enjoyed. Others have tended to confine this line of argument to the test of Kingsmill Moore J. on the Article 37 provision. In either situation, Keady is primarily cited in this regard: in fact, very few if any other cases are aligned with that decision for this purpose. It is said that Keady (i) represents a significant pull back from the taxing demands of both O’Farrell & Gorman and McDonald, (ii) that it regarded the five-point test of Kenny J. as a guide only to the definition of judicial power and, (iii) that it also decided that O’Farrell & Gorman should be confined to its own facts and not otherwise have general application: all pointing to a more relaxed judicial approach to both Articles 34 and 37 of the Constitution. With the utmost respect, even if some such generous standard should be appropriate to either one or both of these constitutional provisions, I have great difficulty in reading Keady as a justification for this conclusion. I doubt very strongly that the case is an authority for what is being suggested. My reasons are as follows.
Keady v. the Commissioner of An Garda Síochána [1992] 2 I.R. 197:
59. In issue in Keady was whether or not the powers of the Commissioner of An Garda Síochána, to dismiss a member from the force, following a breach of discipline finding by a Tribunal of Inquiry, all under An Garda Síochána (Disciplinary) Regulations 1971, were such as to breach the provisions of Article 34 of the Constitution and if so, could Article 37 be invoked to save them. Two judgments were delivered, McCarthy J. and O’Flaherty J., both of which were agreed by the other members of the Court.
60. McCarthy J. referred, with approval, inter alia, to Lynham v. Butler (No.2)(202), Cowan, Shanahan, McDonald and O’Farrell & Gorman(203), when discussing the essential features of the administration of justice, and in the process cited large passages from the judgments of Kennedy C.J., Kingsmill Moore J., and Kenny J. The learned judge went on to apply McDonald and concluded that the challenge failed requirement No. (i) in that there was no dispute or controversy of a kind envisaged by that characteristic of the test. On the broader front he rejected a submission that the legislative regime dealing with certain professions (para. 41 above), should by analogy be applied to the powers in question, so that only the court would have the ultimate dismissal authority in that regard (C.K. v. An Bord Altranais[1990] 2 I.R. 396: Finlay C.J. at 403, with whom McCarthy J. agreed, was cited in support). In his view, members of An Garda Síochána were entirely different from professional people who required a certain qualification and an ongoing standing to practice: whereas apart from the higher management being nominated by the government, all members of the force were appointed by the Commissioner. He then went on to say “In the case of an office or other position created by statute and held pursuant to statute, in my view the principles stated in In Re The Solicitors Act 1954,[1960] I.R. 239, are not to be extended, if they are to be extended at all, so as to embrace the statutory framework which deals with the creation of and an appointment to a particular position or rank and not to the wider fact of being qualified to work for gain in a restricted occupation as well in appropriate cases as being qualified to hold a particular position or rank” (emphasis added) (206/207). These features he said, distinguished the regulations and members of the force from the professions mentioned and their governing legislation. It seems to me however that having endorsed the line of authority as mentioned, I cannot accept that by simply distinguishing the members of the force from other professional people or by the throwaway comment which is emphasised, he intended to suggest that such case law had outlived its usefulness and that it was no longer of general application. If he did, I like several other judges would strongly disagree with such proposition.
61. O’Flaherty J., delivered a second judgment: when referring to O’Farrell & Gorman he felt “central” to that decision was the historical role which the court played in maintaining a profession of recognised integrity and one with the highest level of competence: C.K. was differentiated on the basis that a dismissal of such a person resulted in a loss of his professional qualification whereas a member may have lost his employment, but not any qualification. Further, having cited the five point test from McDonald, he isolated “two essential ingredients” from the five, namely the existence of a contest between parties and the infliction of “some” form of penalty or liability. In Mr. Keady’s case there was no such dispute or controversy and accordingly, Article 34 was not engaged: it was not therefore necessary to consider Article 37.
62. It is however that part of his judgment, which comments on the decision of Kingsmill Moore J., which is more relevant to the instant discussion. Having referred to that passage which identified the severity of the imposed sanction as a key factor, the learned judge continued “Earlier in the court’s judgment it made clear that it was not dealing with a domestic tribunal with a jurisdiction based solely on contract (at p. 264). It seems clear, therefore, that the case of solicitors must be regarded as exceptional and, perhaps, anomalous and owes a great deal to the historical fact that judges always were responsible for the decision to strike solicitors off the Roll”. This has been relied upon for suggesting that Keady hoisted a red flag against the further general application of O’Farrell & Gorman, if indeed, it did not signal its virtual demise or something close or akin to it. I respectfully disagree, as the passage quoted does not in any way support the conclusion reached (para. 126 infra).
The Land Commissioners and the Revenue Commissioners
63. A line of argument running through this case is a suggestion by the respondents that since the powers exercised by both the Land Commission (or “L.C.”) and the Revenue Commissioners (or “R.C.”) have on several occasions resisted various challenges under Article 34 of the Constitution, then the powers of the WRC by analogy should likewise be so declared. This in my view involves an inherent misunderstanding as to the reasons why historically both of those bodies were found to be external to the constitutional provision as mentioned. My reasons are as follows.
Land Commission:
64. Notwithstanding the respect which ever since has rightfully been paid to the judgment of Kennedy C.J. in Lynham v. Butler (No.2), it is I think more revealing to consider that of his colleague in understanding the true rationale which underpins L.C. cases in a constitutional setting. The decision of Johnston J. is most insightful in this regard. At both the outset of his judgment and again towards its conclusion, great emphasis was placed on the exercise of carrying out the land purchase code, described as a “great social work of the highest importance” (115), and as “an administrative task of national importance and of colossal magnitude” (p. 123). This work involved inter alia the abolition of the dual ownership of land by acquiring whole estates for relocation purposes and by advancing monies to certain tenants to enable them to acquire their holdings. Such an undertaking was vested in the L.C. being the land administrator for the entire state and as a body “…equipped with the most complete knowledge of the agrarian and social conditions of this country and actuated by an absolute determination that every citizen and every class of citizen should get fair play and honest treatment”. Therefore, the identification of such lands in that case was not in any sense an exercise of power under Article 64. In his view “any other result would have a most paralysing effect upon the whole work of the Land Commission”, and would convert that provision of the Constitution into “a guarantee of anarchy and not of order” (123/124). See also to the same effect In Re Maxwell’s Estate([1891] 28 LR IR. 356 and In Re Lawrence Estate[1896] 2 I.R. 347).
65. Fisher v. Irish Land Commission[1948] I.R. 3, was I think one of the first cases of note to call for resolution after the 1937 Constitution. This was a “resumption” case under s. 39 of the Land Act 1939, in respect of which the Lay Commissioners had the power to decide all issues arising, including the question of title to the subject lands: its decision was final subject only to an appeal on a point of law. In dismissing an Article 34 challenge, Gavan Duffy J., as then, when once more referring to the policy of the code, alluded to the grave economic problems of the time and the dreadful plight of small farmers who were forced to survive on totally uneconomic holdings. This could be addressed, at least in part by the equitable distribution of certain estates, following the partial or total expropriation of some proprietors. As the ordinary courts were in his view ill fitted for that task, the Oireachtas turned to the Land Commission as a tried and efficient public trustee and as an expert body enjoying great public confidence. As such, it “…must now enjoy a very wide and virtually uncontrollable discretion in the practical administration of the policy committed to its charge” (p. 11). It was clear to the learned judge that by committing those issues to “one of the most extensive agencies of administrative government in the State”, the legislature clearly felt that the measures in question were “extra judicial in their general scope” (10). On the constitutional question, whilst confessing that he himself would “classify the power given…as fundamentally legislative, though one might call it administrative in everyday speech” (p. 12), nonetheless, he very much doubted whether any of those powers could be said to partake of the administration of justice. As such, recourse to Article 37 was not required to validate the powers of the Commission under s. 39 of the Act: however, if it was, those powers were clearly of a limited nature under that provision. The Supreme Court so agreed with these views and this conclusion.
66. It is interesting to note that the same judge, who as counsel for Mr. Butler (Butler v. Lynham (No.2)), had boldly and vigorously asserted “in his devastating argument” that the Land Commission was “an unconstitutional court”, “a judicial enormity” and thus, unconstitutional (Fitzgibbon J. 109), had in an earlier judgment commented on Article 37 as follows:-
“The Oireachtas has continued the policy of committing the highly technical and intricate administration of land purchase under a wide and comprehensive code to a responsible body of specialists, with an extraordinary and unique jurisdiction: and this anomaly is carefully protected by Article 37 of the Constitution.” (In Re Loftus Bryans Estates [1942] I.R. 185 at 198) (emphasis added)
67. There are two further cases which might be mentioned: The State (Crowley) v. Irish Land Commission[1951] I.R. 250 and Foley v. Irish Land Commission[1950] 2 I.R. 118. In the first, again a “resumption” case but under a different subsection of s. 39 of the Land Act 1939 from Fisher, the court was satisfied that whilst the Commission’s function was quasi-judicial it was captured by Article 37, whereas in the second, which involved the exercise of powers under s. 2(b) of the Land Act 1946, the court dealt with the constitutional argument by reference to both Article 34 and Article 37 holding that whichever applied, the impugned powers were not susceptible to constitutional challenge. (See the High Court judgment in Foley where Dixon J. agreed completely with the views espoused in Fisher as to the social importance of the L.C. and the functions its performed).
The Revenue Commissioners:
68. In the past number of years, diverse challenges in a variety of ways have been asserted against certain powers of the Revenue Commissioners, in which decisions of the Appeals Commissioners, Tax Inspectors and the Collector General, have all been questioned. The first of those which I wish to mention is the State (Calcul International Limited & Ors) v. Appeal Commissioners & Anor (Unreported, High Court, 18th December, 1986) (“Calcul”). Barron J., rejected the submission that by finally determining an appeal, moved by the taxpayers against assessments raised by tax inspectors, the Appeal Commissioners were exercising judicial power. In doing so, he endorsed both McDonald and O’Farrell & Gorman, citing certain sections from the latter which included the passage: that if the impugned powers affect in “the most profound and far reaching way the lives, liberties, fortunes or reputations of those against whom they are exercised, they cannot properly be described as “limited”“. (para. 56).
69. When addressing their functions he held that, whilst questions of fact and law may be involved and that the process is adversarial in nature, nonetheless the Commissioners “do not deprive [the tax payer] of anything nor impose penalties, nor limit his freedom of action” (para. 60), with their essential function being to adjust, if at all, the quantum of any assessment. Further, although acknowledging that the required exercise, involved determining the amount of tax to be paid and as a result “obviously imposes liability upon the tax payers concerned” (para. 60), nonetheless, in accordance with the cited case law, such powers did not amount to the administration of justice. In addition, firstly, although recognising the seriousness of being branded a tax defaulter, such was but an inference from the decision and not part thereof. Secondly, although their decision may well impact financially on a taxpayer, the same should not do so in any profound way as any liability is proportionate to the value of goods or to one’s taxable income: it is thus relative in that way with the actual amount involved, however large, not being important. Therefore, on the Article 37 issue the powers in question cannot be said to have the kind of far reaching effects as contemplated by the authorities. The conclusion can be contrasted with Hunt, where this Court (Keane C.J.) held that the powers of the Appeal Commissioners in issue in that case were properly characterised as limited functions and powers of a judicial nature within the meaning of Article 37.1. (Criminal Asset Bureau v. Hunt[2003] 2 I.R. 168).
70. Where in a situation of default, occurring within s. 7 of the Finance Act 1968, the Revenue Commissioners, following demand as in this case based on an assessment, had the power to activate recovery steps: either by distraint or court proceedings. (s. 485 of the Income Tax Act 1967). (“the 1967 Act”). In his challenge, Mr. Kennedy alleged that s. 7 was repugnant to Article 34 of the Constitution. Finlay C.J., in giving the court’s judgment rejected that argument. Although not referring to either O’Farrell & Gorman or McDonald by name, it is clear that both decisions were being endorsed and applied, subject perhaps to a revised wording on point (v) of McDonald (paras. 82 & 83 below). In his view, there was no “contest” or “issue” of fact or law arising on the 25th July, 1984, when the Collector General generated the enforcement steps, even if he did so in the mistaken belief that the tax remained unpaid: accordingly, there was no judicial determination involved in that decision. Secondly, what created/imposed the liability or affected the appellant’s rights was not the decision of the Collector General, but rather was his own default in complying with his statutory obligations. Finally, the powers contained in s. 485 of the 1967 Act, did not oust any of the functions vested in judges under Article 34. Accordingly, that aspect of the claim was rejected. (Kennedy v. Hearne[1988] I.R. 481).
71. In the third case, where returns are not made for schedule D purposes, assessments may be raised under s. 184 of the 1967 Act, which in the absence of appeal become final and conclusive. Enforcement steps may then be taken requiring the County Sheriff to execute for the amount specified (s. 485 of the 1967 Act: see the preceding paragraph). Having found himself in these circumstances, Mr. Deighan at that point of the process challenged both the power to raise the assessments and that of the County Sheriff to levy execution thereon.
72. Murphy J., in the High Court, was entirely satisfied that the raising of an assessment was purely an administrative task: it involved neither a dispute or controversy and in the ‘ordinary’ way, resulted from the application of the relevant statutory provisions to the information which the tax payer was obliged to submit. Whilst of necessity the situation is more difficult where default has occurred, nonetheless the legal effect of each procedure is the same. The “finality” aspect of an assessment results, not from any determination by the Inspector as such, but rather by the tax payer’s failure to challenge, on appeal that assessment. In the view of the learned trial judge, Article 34 was not engaged. That decision was affirmed on appeal, with this Court applying the principles which it had in the then recent past set out in Kennedy v. Hearne[1988] I.R. 481. Accordingly, the constitutional challenge to both the raising of the assessment and the execution steps was rejected. (Deighan v. Hearne[1990] 1 I.R. 499).
The Underlying Rationale for such Bodies:
73. The land question seen in a national and historical context, and the State’s policy response – to alleviate the untoward affliction and ghastly suffering of its people – via, inter alia, the Land Acts/Land Purchase Acts including the establishment of its implementing agency, were in my view key appreciating factors in the judicial approach to the constitutional challenges previously mentioned. In so saying, I am not suggesting that legal learning of the most scholarly type was not applied by those imminent judges involved in such decisions: however, in light of some of the individual conclusions reached and the reasoning behind them, some further explanation should be added. Indeed, this type of influence can be seen in some cases quite explicitly and even if less so in others, is still present. A brief recap on the judgment of Johnston J. in Lynham v. Butler (No.2) will illustrate this point. The learned judge was unquestionably satisfied that the Commission’s work was correctly described as administrative, and not judicial. Even if some or many of its activities had the appearance of the latter, such were in his view quasi-judicial in character, and were purely incidental and ancillary to its principal functions as above described. With that pragmatic reasoning, it was possible to preserve the distinction between the administration of justice and the several administrative tasks which the executive sought to have carried out by non-judicial bodies: if such had to be otherwise classified, the same would seriously undermine that branch of government. The tripartite division established under Article 6 of the 1922 Constitution was not devised in that way and had within it a breadth of flexibility and elasticity which allowed for the carrying out of such functions: this in his view was a sound basis for the distinction so made. Accordingly, the judicial conclusion in that and other cases, was that the Land Commission in all of its attributes and in performing all of its functions was administrative in nature, with its national standing being pre-eminent in this regard (Kelly, 6.1.11).
74. On the Revenue front, the overall impression given in each of the three judgments just discussed (Calcul, Kennedy and Deighan), is that the functions performed by the Appeal Commissioners, Inspector of Taxes and the Collector General are not part of the administration of justice because the actual liability of the taxpayer is already existing and has been or is capable of being determined, by reference to the relevant provisions of the tax code; their function was to do no more than estimate, calculate and declare this liability. None of the decisions saw any of these powers, all exercised without court intervention, as involving a justiciable controversy of fact or law, or as being causally responsible for the imposition of a liability on the tax payer. Given the serious consequences which the resulting debt may have on the person and his asset position, it is perhaps surprising how, on the application of the principles outlined in O’Farrell & Gorman, Barron J. saw nothing profound or far reaching in their effect (Calcul) or why, some more critical analysis has not taken place on the constitutional compliance of such powers.
75. The Chief Justice in Deighan v. Hearne, had perhaps other reasons in mind to explain such cases when he said “this court in McLoughlin v. Tuite[1989] I.R. 82, has already indicated the importance within the constitutional framework of the revenues of the State and that has bearing upon the powers properly and necessarily vested in the Inspector of Taxes in this context” (504). The passage in McLoughlin was a reference to the fact that the tax code in general and the income tax sector in particular contained a series of statutory provisions so as to ensure that each tax payer should pay his due taxes and should do so “with a promptitude which will permit the central fund to be so established at any time so as avoid unnecessary short term borrowing” (88): Murphy J. in the High Court said something along the same lines. It therefore seems to me that the tenor of such comments alludes perhaps to a view of the work of the Revenue Commissioners which is not too far removed from the view of what the Land Commission did under the land purchase code. In any event, I am quite satisfied that both bodies must be considered as being in a special area of consideration for both Article 34 and 37 purposes.
Observations on Article 34:
76. Although in McDonaldKenny J. felt it unnecessary to refer to more than three cases on the Article 34 and 37 aspects of his judgment (Farrell and O’Gorman: Cowan, and The Queen v. Davidson[1954] 90 C.L.R. 353), there was an abundance of other case law, in addition to Lynham v. Butler (No.2), which would have justified the formation which he outlined. Some of the authorities in question, much earlier in time, identified the following constituent elements of the test:-
(i) All controversies of a justiciable nature (Kansas v. Colorado(206 U.S. 46)
(ii) Deciding such controversies “between its subjects, or between itself and the subjects, whether the rights relate to life, liberty or property”: followed by “…a binding and authoritative decision…” – Huddart, Parker & Co. v. Moorehead,8 C.L.R. 330 at 357:
(iii) Adjudicating “…as to legal claims, rights and obligations whatever their origin, and to order right be done in the matter…” (The Waterside Workers Case[1918] 25 C.LR. 434,);
(iv) Having the power to decide and pronounce a judgment and carry it into effect between persons and parties who bring a case before it for decision (‘Lectures on Constitutional Law’ (1891) at 314: Miller J.: U.S. Supreme Court)
77. A few comments on the above: the extract at (ii), from Griffin C.J. in Huddart Parker & Company, was later acclaimed as being “a classic and widely accepted definition” (Attorney-General for Australia v. The Queen at p. 621). Secondly, the reference to “controversies” obviously means justiciable controversies and that relating to ‘life, liberty or property’, as illustrative only of the many other aspects of one’s being and one’s existence, which can be impacted, and thirdly, the mention of the “binding” nature of the decision is also noteworthy.
78. In addition to the impressive and diverse range of authorities on this issue, it appears to me at a glance, and certainly at a general level, that the identifiable elements from McDonald are for the most part self-evident. The first is the “subject matter” of a suit, a “justiciable issue”, a “dispute or controversy” involving citizens, the State or other legal personalities. Of course not every dispute is amenable to judicial determination, and not every judge when sitting as a “court” is always exercising judicial power. Examples of both might be:
• The engagement of Article 15(10) – aspects of -, (12) and (13) of the Constitution: or an Article 26 reference,
• The raising of an estimate by the Revenue Commissioners in respect of monies due in a particular context, such as that presenting, (Kennedy v. Hearne[1988] I.R. 481)
• The performance by the A.G. of a function under s. 2 of the Extradition (Amendment) Act 1987, repealed since 2003 (Wheeler v. Culligan[1989] I.R. 344),
• The giving of directions under s. 7(4) of the Companies Act 1990 (In Re Countryglen Plc[1995] 1 I.R. 220),
• The administration of assets or trusts or when enforcing a family arrangement by consent (Deaton – 174/175), and
• The making of orders in wardship cases, in lunacy proceedings, and in certain matters regarding the winding up of companies (In Re R. Ltd[1989] I.R. 126 at 135 and Deaton – 174/175)
79. However, it should be noted that not all orders so made, particularly in the latter examples given, can be accurately described as non-justiciable: such will depend on the nature of the application itself, the relief being sought, the orders made and also perhaps the stance of the relevant parties. (Eastern Health Board v. M.K and M.K. v. K.[1999] 2 I.R. 99, Barrington J. at 116: In Re Greendale Developments Limited (in liquidation) (No.1)[1997] 3 I.R. 540 at 547 and In the matter of JJ[2021] IESC 1, McKechnie J.). Aside from this caveat however, such limitations are self-created and self-imposed so that the court’s jurisdiction is properly and correctly exercised.
80. In relation to the second requirement, society could not in any compatible or self-restraining way exist unless disputes which inevitably arise could be determined by an independent and impartial body, with expertise and knowledge and one commanding widespread public respect: otherwise resort would be had to the most unsavoury means of resolution: hence the decision making aspect of justice. Thirdly, such decision, or determination, must have the inbuilt capacity to be an end in itself, meaning that subject to other avenues within the judicial process, such as reviews or appeals, there should be no necessity to engage with external bodies to bring finality to the matter referred. Fourthly, it is the constitutional norm that where enforcement of court orders becomes necessary, the same can and indeed must be executed by the executive branch whose constitutional powers and duties, include this obligation. The court self-evidently in no civilised jurisdiction can directly enforce its own orders. So much so for points (i) – (iv): the fifth feature however, requires some further comment.
81. As noted by Kenny J. in Deaton, this aspect of the “test” derived from a suggestion in The Queen v. Davidson[1954] 90 CLR 353, to the effect that if as a matter of historical fact the order or event under scrutiny, was typical of what the courts traditionally engage in, then the doing of such act would be characteristic of the judicial function. Whilst undoubtedly, it is true that Dixon C.J. in his judgment said something along those lines, nevertheless the source of this observation should be noted as well as what the author actually stated, which was that “in doubtful cases” [we] ask whether the subject power was exercised by the Crown, parliament or by judges “at the time our constitutions were adopted” (The Rule Making Power, 12th A.B.A. 599: Dean Pound). With great respect, whatever limited validity this proposition may have in a certain context, it is very difficult to see how the extrapolation made by the learned judge could be justified on such basis.
82. Leaving that aside however, and despite what Kenny J. said, I do not believe that support for the same point can also arise from the reference in O’Farrell & Gorman to the historical role of the court regarding solicitors: that in my view was particular to context, and was neither absolute in intention or unconditional in effect. Moreover, a moments reflection will illustrate that if taken literally, such aspect of the test could render immune from an Article 34 challenge, the exercise of powers conceived in and serving modern society, but which are foreign looking to the historical landscape. Such would have quite disturbing implications for the separation of powers and within that for the constitutional role of the court under that provision. I therefore would alter the fifth requirement by removing its confinement to the “historical” nature of such orders, and instead would adopt the refinement suggested by Finlay C.J., where such is included but not decisively so worded: the Chief Justice said “a further test which can be applied to the question whether this section allows the exercise of a judicial function is whether it has the effect of invading or ousting any of the functions vested in the judges by Article 34 of the Constitution” (Kennedy v. Hearne[1988] I.R. 481 at 489). This has the obvious benefit of being able to assess the requirement in a contemporary setting.
83. There is another justification for this view. I have always believed that the Constitution should be viewed as an instrumental medium to serve the people who in return would serve the Constitution. As prevailing values, norms and standards will inevitably change over time, it is important that the highest level of the societal legal order should be capable of adjustment, by interpretation, so as to reflect those needs and requirements. Thus, it has often been said that the Constitution is flexible and is amenable to change, with no one interpretation being definitive for all time. However, to say that the Constitution is a living document is a treacherous generality, being as deceptive as it is accurate. Certainly in some areas it has been adapted to reflect society but in many others, particularly in the most sensitive and personal areas, such as families, marriage, status, relationships and the like, it appears quite incapable of movement, in fact it seems to be frozen in its historical origin. It is to be regretted that a more bold, innovative and imaginative approach has not been adopted by the judiciary at large. In any event, I cannot imagine that Kenny J. intended to exclude from the purview of Article 34 all orders other than those which traditionally the courts were likely to make. If however I am wrong in that regard, I would also on this basis, include as part of point No. (v), orders which are typical or normal of the judicial system at any given time.
84. All of the above discussion is helpful in offering an understanding of what the essential elements of both Article 34 and 37 are, and where these interrelate with each other in the constitutional frame. This exercise is however complicated by the fact that bodies, in number several; in title, structure and composition vast; and in reach and scope enormous, have nonetheless consistently been held to be ministerial or administrative, but not judicial. These exist in multiple sectors of society and in many instances have a variety of powers and responsibilities for making decisions which affect the person, good name and property rights of citizens, sometimes in a most profound way. From this category can be excluded those which simply conduct exercises such as the taking of accounts and enquiries, the making of calculations, the ascertainment of facts, or those who engage in matters which are purely ancillary to and subordinate of the judicial system, e.g. registrars, examiners and the Master. With regard to the former agencies, many may exhibit, to use a hollow phrase “the trappings of a court” (Shell case, Lord Sankey at p. 296), such as having the power:
• To entertain contested disputes s
• To compel the attendance of witnesses and sometimes parties
• To direct the production of documents
• To take evidence on oath and to preside over cross examination
• To resolve factual disputes and decide controversial points of law, and
• To make a determination on such disputes, to finality.
These features are but illustrative: some will have more or less powers and others different powers. It is difficult to be more precise than this, as all will depend on the make-up of their individual formation.
85. Whilst the decisions of such organisations may be subject to review or appeal, howsoever described, and whilst the supervisory nature of the court’s jurisdiction cannot be excluded, nonetheless the breadth of their established remit, can be considerable. To an onlooker, even a lawyer, their features may appear to closely resemble, if not indeed be indistinguishable from, the court process. As a justification, many would argue that given the complexity of modern day society, it would not be possible for the executive branch to govern in an effective and efficient way without utilising such entities. That indeed may be the case, but almost inevitably some such body with such powers, either by their creation or functioning, will inescapably encroach into justice and then may or may not have the protection of Article 37. This therefore begs the question: how can separation be decided upon?
86. In considering this matter, it is obvious that the existence of the factors above mentioned, cannot be decisive in badging an entity as a court or in determining the Article 37 issue (O’Farrell & Gorman at 273), even if undoubtedly such are also clearly incidents of the judicial power. A good deal of this convergence can be explained by the absolute obligation on those bodies to act judicially at all times, that is to comply and ensure compliance with, not only natural justice, but also with the broader requirements inherent in the current understanding of constitutional justice: in short, they must act fairly and impartially and in a proportionate way to the circumstances presenting: (Kingsmill Moore J., 265/266): or as put “are subject to the trammels of a quasi-judicial body” (Crowley at 267). To satisfy this duty which exists regardless of the Article 34/37 debate, many of the requirements above identified would have to be complied with. But, as sometimes stated, “due process is not necessarily judicial process” (Reetz v. Michigan188 U.S. 505). Accordingly, not a great deal of differentiation can be deduced from the existence of these features, whether implicit or explicit in the exercise of the subject power. So the basic problem remains for the court, as the only organ of government who can so decide, by what test can it be determined which bodies/powers merit constitutional condemnation, and which do not?
87. As is evident from reviewing the case law, whilst many judges have described the ingredients of what constitutes the administration of justice few have ventured to define it in such a way that the resulting test could be applied at a general level to the varying circumstances which may present. Whilst some phraseology, different from that used in Lynham v. Butler (No.2) and McDonald, appears from time to time, the same is more by way of explanation than analysis. It is therefore probable that it is not possible with any precision to delineate the boundary in an all-inclusive or exclusive way. Whilst it would be much more acceptable if that exercise could be achieved, such may not be realistic given the myriad of bodies established inter alia by statute with such diverse subject matters, powers, functions and responsibilities.
88. Even Kingsmill Moore J. concluded, from a survey of the representative cases outlined in his judgment, that “from none of the pronouncements as to the nature of judicial power which have been quoted a definition at once exhaustive and precise be extracted, and probably no such definition can be framed”. Very much the same was echoed by Davitt P., in Shanahan, where he was content to identify a number of features, subsequently evident in McDonald, which if existing were to his mind an exercise in judicial power. McCarthy J. in Keady added a further voice in this regard “I share the reluctance of Davitt P…to attempt a definition of judicial power: it is easier, if intellectually less satisfying, to say in a given incidence whether or not the procedure is an exercise of such power, rather than to identify a comprehensive check list for that purpose” (204). Further, having said that any such definition is complicated by the existence of Article 37, O’Donnell J., in this precise context said “It is now however, much too late to seek any comprehensive theory, even if such was desirable. Instead the resolution of these cases must be found within the existing case law and the guidance which they offer” (O’Connell v. the Turf Club[2017] 2 I.R. 43 at 98).
89. Finally, as the majority of the Constitution Review Group noted in this regard in its report (1996) “…there is no completely satisfactory answer to the problem raised and…there are great difficulties in formulating a different set of words which deal adequately with these complex issues”. (para. 34). It is difficult, from an examination of the case law, to otherwise than agree with these and the above observations, with the result that if a generalised approach by way of a comprehensive description cannot be satisfactorily found, then in my view one can only proceed on a case by case basis and apply the well-established principles to the powers under scrutiny in any given case. In consequence, I am satisfied to adopt and apply, subject to the caveat above mentioned (paras. 82 and 83), the criteria set out by Kenny J. in McDonald, as further explained, both before and after that decision, in a number of the cases previously considered in this judgment.
90. To understand the conclusion reached in this case on the Article 34 issue, it is necessary firstly to refer to the procedures of the 2015 Act under challenge and secondly, to address briefly the restriction which the learned trial judge placed on what arguments could be advanced by the appellant on the constitutional issues, in effect, the standing point.
The Procedures under the 2015 Act: an Administration of Justice:
91. Prior to the 2015 Act, there were several different bodies which played a role in the investigation, adjudication and resolution of industrial relations disputes and employment issues, loosely so called. With the intention of streamlining the procedural mechanism utilised by such bodies, the 2015 Act created a unifying process through which all such disputes would be processed and determined. This new procedure included claims under the 1977 Act and the 1991 Act.
92. At the outset, it should be noted that the EAT was abolished by this Act (s. 65), and that its functions relating to, inter alia, claims under the 1977 and 1991 Acts were transferred to the Workplace Relations Commissions (WRC) (s. 66). From our point of view however, the most relevant sections are those contained in Part 4 of the Act (ss. 38 – 53 inclusive), which cover the initiation, investigation and adjudication of disputes arising out of employment in the workplace generally, including the enforcement of any orders so made.
93. An employee who wishes to make a complaint, must do so directly to the Director General of the WRC who on receipt thereof, refers it to an “adjudication officer” (“AO”). The resolution process by way of mediation did not feature in this case (s. 39). That official has duties, obligations and powers under s. 41 of the Act. Included are the following:- to afford the parties an opportunity to be heard and to present their evidence and to make a decision on the complaint in accordance with the relevant redress provision (subs (5)(a)). The AO has the power by way of written notification to compel the attendance of witnesses, to give evidence and to provide documents, with such persons being entitled to the same immunities and privileges as a witness before the High Court (subs (10) and (11)): the failure or refusal to give evidence or produce documents in accordance with the notice is a criminal offence which on summary conviction is subject to a class E fine (subs (12). In addition, proceedings before an adjudication officer “shall be conducted otherwise than in public” (subs (13), and all such decisions are published. However, of note and indeed of some surprise, is the fact that there is no provision for the administration of an oath, or for the cross examination of witnesses.
94. The enforcement of a decision made by an adjudication officer is by way of an application to the District Court, which becomes necessary only if and where an employer defaults in compliance within 56 days of the decision being notified to him: obviously such a step is not required where the order has been satisfied. This provision, along with s. 43(1) and (2) plays a central role in Mr. Zalewski’s appeal against the finding of the learned trial judge that requirement (iv) of the McDonald test has not been met. On such an application, which can be moved by the employee or with his consent by a trade union or excepted body of which he is a member, or indeed by the WRC itself, “…the District Court shall without hearing the employer or any evidence (other than in relation to the matters aforesaid) make an order directing the employer to carry out the decision in accordance with its terms.” (emphasis added) (subs (1)).Ss. (2) also bears quoting “Upon the hearing of an application under this section in relation to a decision of an adjudication officer requiring an employer to reinstate or reengage an employee, the District Court may, instead of making an order directing the employee to carry out the decision in accordance with its terms, made an order directing the employer to pay to the employee compensation of such amount as is just and equitable having regard to all of the circumstances but not exceeding 104 weeks remuneration in respect of the employees employment…” (emphasis added). There are comparable provisions for the enforcement of a decision of the Labour Court, although in that situation the District Court has no power to interfere with any redress aspect of the order made (s. 45). In addition, the Court has a discretionary power to award interest under s. 22 of the Courts Act 1981, as amended. This is not material. Finally, a failure to comply with the court’s order made under s. 43 (AO) or s. 45 (LC) is a criminal offence punishable on summary conviction, with a class A fine or imprisonment for a term not exceeding 6 months, or both (s. 51).
95. In terms of the appeal structure, such is contained in s. 44. There is a right of appeal to the Labour Court by way of a full re-hearing on facts and law (s. 44(1)), which body can refer any legal question to the High Court (s.44(6)). Following its decision, the parties may also appeal to that Court, but only on a point of law (s.46). Various time limits for these steps are set out in the sections mentioned. This system can be contrasted with the previous regime under the 1977 Act, which provided for a full re-hearing before a court, namely the Circuit Court.
96. As is evident, the features of the 2015 Act just identified have the practical effect of creating a procedure for dispute resolution which is in fact entirely akin to that of legal proceedings. Though the setting and framework of an inquiry under s. 41 may well be more informal and swifter than a court action, these considerations are irrelevant to the question, which now must be considered, of whether the process is or is not an administration of justice. Before doing so however, a brief word about a standing issue.
Locus Standi Point:
97. As mentioned, but only scarcely so, (para. 8) the applicant on the constitutional issue was not permitted by the learned trial judge to rely on the powers of the WRC under any enactment, save that of the 1977 and 1991 Acts: in particular, he wished to highlight that under s. 12(3)(c) of the Protected Disclosures Act 2014, an employee who had been “unfairly dismissed” on the basis that he/she made a protected disclosure, may be entitled to five years remuneration. That, according to Mr. Zalewski illustrated the vast nature and scope of the powers which an adjudication officer and the Labour Court alike possess.
98. Prior to Cahill v. Sutton[1980] I.R. 269 the range of arguments available on a constitutional challenge to a piece of legislation was extensive but not unlimited: it certainly was not confined to the individual circumstances of any given plaintiff: an example of which is McDonald itself, where the full range of the Board’s powers were considered. In fact, the law books are littered with submissions that ranged far and wide in that respect but which are not purely theoretical or wholly unrealistic. All of that changed with this Court’s decision in Cahill, which resulted in a significant modification to that practice as then applying in this jurisdiction. The resulting consequences were that any person seeking to mount such a challenge, was confined to how he was or would be impacted by such provision(s): no wider claim would be entertained. (p. 284 of Cahill).
99. Although with some flexibility from time to time, Cahill has been consistently applied ever since. However, it has attracted some criticism, including that from McCarthy J., who as lead counsel for Mrs. Sutton was baffled by the decision and who subsequently as a judge expressed hesitancy, indeed, even a flat-out refusal to accept what he described as the “busybody” basis for the decision (Norris v. v Attorney General[1984] I.R. 36 at p. 91). He doubted in the 43 years before Cahill, that there had been many instances, if any at all, of “officious interference” where a plaintiff instituted a case of this type without a personal reason or justification to so do: “reluctantly” however, at the end of the day he considered himself bound by it (p. 91).
100. Four years later, the learned judge dissented, yet again, from the rest of this Court, who had applied Cahill to reverse the decision of Costello J., who held that the applicant had standing to bring mandamus proceedings seeking to compel the government to commence, by an S.I., s. 60(1) of the Civil Liability Act 1961, which abolished the rule against non-feasance (State (Sheehan) v. The Government of Ireland[1987] I.R. 550). It is difficult to disagree with his comment that “If the prosecutor [who had tripped on a pavement and had been injured], or another in like position, does not have locus standi, then who has?” (p. 562). Whilst other voices have been raised from time to time, the decision of Henchy J. is still very much alive.
101. This particular case, in quite a specific way, illustrates very well the concerns which McCarthy J. had in mind. There is no doubt but that the range of compensation which an adjudication officer could award would be, and in fact was, an important aspect of the court’s consideration in this appeal, especially in relation to Article 37, with there being a significant difference between 260 weeks (five years’ worth) of salary under the 2014 Act, as distinct from 104 weeks (two years’ worth) of salary under the 1977 Act. Simons J. in fact made a very similar point regarding the other end of the scale where under the 1991 Act, the maximum amount is 2 weeks’ remuneration, albeit he did so to make a different point. Nonetheless, this very example highlights the artificiality of a situation which can result from an over restrictive approach to standing.
102. In addition, the Oireachtas, which must now examine quite carefully certain provisions of the 2015 Act, in particular those referable to both an adjudication officer and the Labour Court, are left with what is in essence an incomplete assessment by this Court of the full powers which such bodies possess under the legislation. In many situations that would not give rise to a difficulty and in fact would accord with a sensible application of Cahill: but in this case, given the integrated nature of these powers, it may well do so. It certainly has resulted, at the very least, in the creation of a doubt as to what the overall outcome of the case would be, on the Article 37 provision, if this argument had been considered: obviously this will inevitably create uncertainty for the legislature as they assess the future pathway of the WRC.
103. In light of both of those points, the question remains whether this was a productive or an ineffective application of the doctrine of locus standi? Given that one of the main objectives of the rule, is to protect the administration of justice and also to ensure that any such challenge retains “the force and urgency of reality”, I do not accept that allowing Mr. Zalewski to rely upon the argument mentioned would have undermined this rationale , particularly since he was permitted, to “make the general point that the adjudication officers and the Labour Court exercise jurisdiction under a great number of pieces of legislation” (para. 31 of the High Court judgment). Quite the reverse may I suggest: and may I further add that had the rejected argument been allowed, the case would have been conducted in a more realistic, informative and worthwhile manner.
The McDonald Test:
Requirement No (iv)
104. The learned trial judge dismissed the Article 34 claim on the basis that in his view point (iv) of the McDonald test could not be satisfied (para. 47 above). The two essential reasons for this conclusion were firstly, that the bodies in question were dependent on the parties to activate the follow on enforcement procedure and secondly, the District Court’s power to modify the redress ordered, if such was to include either re-instatement or re-engagement (“re-employment”, for short). The inclusion of the Labour Court in this latter reference by the judge was not intended and can be disregarded. As a result, therefore, in his opinion, neither body could be said to be involved in the administration of justice (para. 77 of the judgment). I respectfully disagree with this view.
105. In the first instance it is important to note the concession made by the respondents, to the effect that points No’s (i) to (iii) of McDonald are in place. These factors must therefore create an extremely influential platform from which the other requirements should be considered, as it necessarily follows that the subject powers/processes have, at that point, permeated acutely into the judicial domain. This is a significant journey step into the zonal sphere of justice. In consequence, the further analysis required must be consciously impacted by that position.
106. In looking at this matter, it is important to differentiate between the position of an adjudication officer, and the role of the District Court: in this regard, one must start by again considering the process conducted by the AO (para. 93), from complaint to decision, and the legal position of the parties when that process has concluded. As previously noted, to fulfil the functions demanded by statute, the AO, having received a complaint, must consider all relevant evidence which either party offers and must afford to each of them an opportunity to be heard: for such purposes, he or she has the power to order the attendance of witnesses and the production of documents, both under pain of criminal sanction. The officer must adjudicate on the resulting evidence, both oral and documentary, and must do so by way of a decision which is then published. Certainly at first glance, such features sit side by side with those which are inherent in the court process. So where is the complaint at that point and what is the position of the parties?
107. Leaving aside the possibility of an appeal or the exercise of the court’s supervisory jurisdiction, the unfair dismissal complaint at that point has been dealt with: it has concluded: it is over: the matter has ended. The facts, relevant to all aspects of the dispute, whether conflicting or otherwise, have been aired, the legal principles have been canvassed, the parties have had their say on both and a decision on the merits and law has been given. The AO is the only entity which touches the facts and applies the law to those as found. For all intents and purposes once over, the position of the parties has been established. There will be a winner and a loser or something close to either. The issue determined will never be revisited in the District Court. The matters dealt with have been ring-fenced and assigned to that process. Whilst the shortcomings of this system and the limitations inherent in it, cannot be ignored, and rightly are regarded as significant (paras 137 – 142 infra), nonetheless for all intents and purposes the parties will have engaged in a process which will have resulted in the final determination of the controversy between them: akin to essential aspects of legal proceedings. That the parties will have so considered, is clearly demonstrated by the fact that over 90% of decisions by adjudications officers are not appealed and so presumably have conclusively terminated the dispute between those involved. It is only where default is made by the employer in complying with such decision, that the District Court becomes engaged.
108. It is obvious that a decision of the adjudication officer is not, of itself, directly enforceable as a judgment of a court is: hence the involvement of the District Court for that purpose. It is however important to carefully analyse the basic provisions which govern such application, as applying to an adjudication officer (s. 43(1) and (2) of the 2015 Act): the position of the Labour Court is that as set out above (para. 94). These provisions however, whilst curious to a point, are neither novel or original as can be seen by their inclusion in the amendment to the 1977 Act. Under s. 10(1) and (2) of the original Act, the relevant Minister could apply to the Circuit Court to enforce an order of the EAT; such however involved an entire rehearing by that court of the substantive case previously determined by the tribunal. Much if not exactly the same as if the employer had appealed under s. 10(4). That position was however altered by s. 11 of the 1993 Act, which, by virtue of subs (3) set out a process virtually identical to that contained in s. 43(1) of the 2015 Act. Apart from also permitting an employee to move such an application, the same was made ex parte, and required evidence only of the earlier decision and non-compliance following notification: based thereon, the Circuit Court was obliged to make an order enforcing the decision of the EAT, with a similar power in respect of any re-engagement or re-instatement, if suggested by the tribunal (para. 94 above). As can be seen, what resulted from the amendment was pretty much identical to what is now contained in the 2015 Act.
109. An application to the District Court can only be made by two persons, namely the employee or the Commission: I discount a trade union or an excepted body as independent from the employee, as neither can operate without his consent (s. 43(1)). If the trial judge is correct, as I think he is, in saying that one of the reasons for the Supreme Court’s decision in McDonald was the fact that neither the coursing club or the racing club themselves could seek an injunction to enforce the exclusion order, that is not a factor in this case given the power of the Commission to also make such an application. That aside, there are several distinctive features of the process which must be noted: the employer has no right to be present or heard, the only evidence which is required of the employee or which can be demanded by the court is the existence of a decision and default having been made following notification thereof. With that evidence only, the District Court is mandatorily obliged to make an order directing due compliance with the decision of the AO in accordance with its terms. Save for the peculiarity of one aspect of the redress system, it has no other function: it cannot review the case even if it disagrees with the conclusion reached. The evidence involved could not be more perfunctory: it could hardly be said to involve anything more than the most cursory engagement, in that, on the production of such evidence its role is preordained by statute: the result is inescapable and must be as indicated. If the legislation therefore had so rested, the decision of the learned trial judge on this point may well have been different. However, it was the modification powers of the court which were ultimately the most significant factor in his final decision.
110. These provisions are understandable as to intent and purpose but not readily recognisable as achieving that objective. I agree with MacMenamin J. that the principal intention behind these provisions was to offer a form of protective shield, so that this regime would be rendered less vulnerable to constitutional challenge. Whilst some doubts were occasionally expressed about the constitutionality of the EAT, (Canada v. Employment Appeals Tribunal: and some academic commentators: such as ‘ Kelly: The Irish Constitution ’ at 6.4.111), it must be said that for the duration of its existence, those doubts were never seriously pursued. In any event, it is now of course the situation under the 2015 Act which is in issue.
111. At first I felt that I had a certain insight into the rationale behind subs (2) of s. 43 (para. 94 above), but in hindsight, I am far from sure of that understanding. In the notice of application one assumes that the employee will set out what form of redress he is seeking: if that is compensation, then subject to what follows, it is very difficult to see how the AO could order, in its place, re-employment without that having been sought by the employee. Whilst a possibility, it certainly seems a strange one. The most likely sequence therefore is that in the first instance such is sought and granted by the AO, but by the time of the District Court hearing, the employee has had a change of mind and then seeks to substitute an order for compensation for what was originally sought. How this could be considered by the District Court, given its remit, is far from easy to understand.
112. The other possible reason for this provision might be employer related in that it is, I suppose, not impossible to think of such a person, even one who is denying the unfairness alleged and certainly one who is defending the unfair dismissal claim, making such a suggestion before the AO. That situation might conceivably arise if there is any significant delay between the dismissal and the adjudication, and might be further influenced by intervening events occurring during that period. For example, it is not fanciful to suggest that an award of two years’ compensation might render a business non-viable, and thus no matter how unappealing, re-employment might then be the most attractive outcome for the employer. But as the defaulting party, it is difficult to see how such a submission could prevail over the wishes of the employee. It any event, he certainly could not make that argument before the District Court as he will not be present, or represented or have any opportunity to adduce evidence or make submissions, or otherwise participate in any way in such proceedings.
113. A further difficulty of a much more general nature also arises with that possible scenario. Under the statutory provisions, the proofs required of an employee (or the WRC if the moving party) are extremely limited with the only evidence needed being that to support the very specific requirements above mentioned (paras. 109). The question then is this: on what evidential basis could the District Court possibly discharge the compensation award and substitute in its place re-engagement or re-instatement? At the most instinctive level, some evidence would be required relating to the “unfairness” of the dismissal itself and the reason why compensation, rather than the alternative was sought: and, likewise as it would be to assess the appropriateness of the employee returning to the workplace, what position might be offered and of course why compensation was not or could not have been discharged. How, such evidence could possibly be entertained in light of the statutory focus on the restricted nature of the court’s role and in the absence of the employer, is something I seriously struggle with. Furthermore, it must be recalled that all courts including of course the District Court is constitutionally bound to exercise fair procedures and to comply with natural and constitutional justice, right throughout their remit. How the operation of these provisions could be rendered compatible with this norm, is almost impossible for me to understand. As a result, it seems to me that save in the rarest of circumstances, which presently I cannot imagine, this provision (s. 43(2) of the 2015 Act) is both legally and constitutionally inoperable.
114. I very much doubt if any of these difficulties can be resolved or explained by the suggestion of some of my colleagues that in its role, the District Court is not involved in the administration of justice and that the judges, when so acting, are neither exercising judicial power or engaging in the judicial act: the logical corollary of that position is to say, as indeed it has been, that the court is somehow acting as a purely administrative chamber. I can find no authority for this proposition or for the analysis giving rise to it.
115. The fact that the District Court has such a limited role in supporting the enforcement of the antecedent decision, is no reason in itself to justify such a view. Several examples exist where on very limited evidence a court is obliged to make a particular order and may even do so on an ex parte basis. Some of these cases have been referred to in the other judgments delivered. Dublin Corporation v. Hamilton[1999] 2 I.R. 486, was one such case where it was held that the District Court could make an order under s. 62 of the Housing Act 1966, on the very specific and limited proofs set out in that section: a section not condemned by this Court in Gallagher, but compromised in Donegan ([2012] IESC 18, [2012] 2 I.L.R.M. 233) on the basis that in the absence of some method to determine a genuine dispute on the underlying facts, the Article 8 rights of the tenant were infringed. The problem in DK v. Crowley[2002] 2 I.R. 744, did not stem from the District Court’s power to grant, ex parte, an interim barring order, but rather from the failure of both the legislation and the rules of that court (unlike the Circuit Court) to afford the respondent an early opportunity of contesting the order: there was no requirement for a return date or that a motion should issue. I therefore cannot see in any of these cases any support for the suggestion that the court when involved under s. 43 of the 2015 Act is but purely an administrative agency.
116. The fact that the District Court, when called upon, provides a supporting element to the enforcement of the A.O.’s decision, does not change the constitutional categorisation of what the adjudicative process is. If that in itself was the only reason to re-classify what otherwise would be an exercise of judicial power, then the same would have to follow regarding multiple other situations where similar support is frequently called upon. Whilst appreciating that there is a difference, these are not quite the same: attachment and committal, orders for possession, orders of fieri facis and sequestration, to name but some, come to mind. In addition, whatever the historical view might have been, it is no longer correct to say that court intervention in areas such as wardship, company law matters, the administration of estates etc (para. 78 above) is not an exercise of judicial power. Many of these can be highly contentious. To whom should a grant of administration be given? Should a person be admitted to wardship, noting the judgment of this Court given earlier this year in J.J.([2021] IESC 1)? Consequently, it is only in very limited and very rare circumstances that orders typically made by a court are to be considered as not involving the administration of justice.
117. There is one further reason why in my view requirement No (iv) of McDonald is satisfied. In O’Connell, where in the context of the powers of the Turf Club, O’Donnell J. suggested as an alternative to direct enforcement that where a process for converting a prior decision into a judgment existed, then the same would satisfy this particular requirement: Rogers v. Moore & Ors[1931] I.R. 24 is cited in this regard. Rogers, is I think a case different to the point being made, in that the attempted set off, by the Turf Club, of a fine unauthorised by the relevant rules from monies held by it on Mr. Roger’s behalf, was declared ultra vires. That aside, it seems to me that apart from the modification point, the District Court’s involvement under the 2015 Act can be seen as a “process for converting” the previous decision of the adjudication officer into a judgment. As a result, on this ground also, I would set aside the decision of the learned trial judge on this issue. Accordingly, for the above reasons, I am entirely satisfied that requirement No. (iv) in McDonald has been met.
Requirement No (v):
118. On this point, I am satisfied to rest my conclusion in the same way and for the same reasons as set out by the learned trial judge at paras. 101 and 102 of his judgment. In particular, I fully agree that the determination of employment disputes across a diverse range of circumstances has been recognised as the business of the courts for several decades. Indeed, much longer. Putting the matter in reverse, would any practitioner specialising in this area or indeed, any judge dealing with such matters, consider that the same was foreign to court intervention or to his judicial role. I doubt very much so. Accordingly, it is unnecessary to add further on this matter.
Resulting in:
119. Consequently, as all five aspects of the McDonald test are satisfied in this case the only remaining issue on the administration of justice side, although of the highest significance, is to consider whether the adjudicative process of the 2015 Act, being that relevant to this case, can be said to be an exercise of functions and powers of a limited nature as ordained by the provisions of Article 37 of the Constitution (para. 12 above).
Article 37: Limited Functions and Powers:
120. In an earlier part of this judgment I outlined some of the discussion which the 1934 Constitutional Review Group had, and some of the debate which followed, on what eventually became Article 37: from a political perspective those who favoured its inclusion expressed concern about the potential vulnerability of bodies such as the Land Commission, the Revenue Commissioners, County Registrars, the Master etc. In effect bodies, which undoubtedly were not courts under the Courts of Justice Act 1924, but which were performing certain notable functions, considered necessary to give expression to executive policy in a variety of social, economic, cultural, political and legal spheres: these bodies were variously described as either administrative/ministerial in nature or as exercising quasi-judicial functions or sometimes both (paras. 25 – 30 above: History of Article 37).
121. In the period which followed 1922, there were a few intermittent cases where Article 64 was mentioned but not discussed in any significant way until Lynham v. Butler (No.2). One of the earlier decisions, Roe v. McMullan[1929] I.R. 9, is of doubtful value as the only comment of note, that of Sullivan P., arose out of a particular submission of counsel which was in fact rejected: in any event, the observation made was quite ambiguous as to meaning (p. 15). Immediately prior to the delivery of that judgment, the Supreme Court of the Irish Free State, when dealing with the powers of the Master, on a referral by the court, to “assess” damages for an established breach of contract, held that it had not been shown at the particular point where the proceedings were, that the intended “calculation” was an exercise in judicial power. (Matheson & Ors v. Wilson[1929] I.R. 134). Another instance is where the court found that the execution of distress warrants by county registrars did not violate Article 64 (Halpin v. Attorney General[1936] I.R. 226), and finally, where it was held that an adjudication in bankruptcy by a county registrar was also constitutionally compliant (the State (McKay) v. Cork Circuit Judge[1937] I.R. 650). However, apart from those, there were very few other judicial murmurings, of note, which might have caused political unease.
122. Accordingly, whilst other bodies were undoubtedly mentioned in the debates and even in the case law, I remain entirely of the view that by far the greatest concern to the executive related to the Land Commission and the Revenue Commissioners. These were the focus of the concern: both from a political perspective (paras. 25-30 above) and a judicial perspective, the latter, as can be seen from the manner in which the courts, both pre and post 1937 have consistently ring-fenced such bodies from constitutional frailties. (paras. 73-75 above). In this regard, may I highlight the views of no less a figure than Gavan Duffy J. who acknowledged on two occasions that position, firstly, in Re Loftus Byrans Estate[1942] I.R. 185 at 198 – saying that the Land Commission had “an extraordinary and unique jurisdiction: and this anomaly is carefully protected by Article 37 of the Constitution” (198) – and secondly, in Fisher v. Irish Land Commission[1948] I.R. 3, where he commented that Article 37 was ‘probably’ inserted to avoid the possible difficulties which were discussed in Lynham v. Butler (No.2) (see paras 73 – 77 above). Finally, may I say that the functioning of these bodies does not offer any general assistance to the interpretation of the constitutional provisions in issue.
123. As stated earlier in this judgment, an understanding of Article 37 cannot really be fully developed without involving a discussion on Article 34, which has been had elsewhere, but a brief recap is required. That provision is a cornerstone of our constitutional structure and is the lead provision on the judicial side of government. It therefore must have a headline meaning in the sense that there must be an area of administration, a core or principle area, that no other entity or body save for judges, may adjudicate upon. That area is separate to, and protected from encroachment by, all other arms of government: that is what the Constitution decrees. What McDonald tried to do was to put some practical meaning on this and to offer a criteria by which contested issues might be resolved. Save for the historical aspect of the five-point test, what was articulated by Kenny J. has been consistently applied since then. I readily acknowledge that it is not fully prescriptive in the sense of setting out a criteria, all embracing and immune from ambiguity, which by simple application could resolve all such disputed matters: whilst it is always more satisfying if the analysis gives rise to an authoritative definition of, as in this case, judicial power, nonetheless where, despite sharp attention by many insightful minds over several years, that has been found obstinate in reach and obscure in search, I am not afraid to rest on what is found practicable for a functioning judicial system. To those who voice opposition could I respectfully add that the strength of their disapproval would be more impressive if an alternative formula was offered to address the concerns raised: none such has been made and I have yet to see a more compelling approach to Article 34. I therefore reject the criticism made of this decision and likewise reject the subordination of the judge’s reasoning as being circular in nature. Whilst I acknowledge the enormous benefit of academic discussion, abstract theory whilst formidable and highly welcome in its way, must at times yield to the judicial imperative of adjudicating upon cases in a constitutionally compliant manner.
124. What I think cannot but be acknowledged, even if I am wrong in suggesting that the Land Commission and the Revenue Commissioners were the key incentives behind Article 37, is that such provision was never intended to sit side by side with Article 34, and that both would have comparable status. Article 37 was grafted as an exception or derogation from a core principle upon which the vast majority of constitutional regimes, throughout the world, function, namely that justice is administered by judges duly appointed as such. Such provision is subservient to Article 34 and must yield to its hierarchical superior of general application. It therefore follows that no matter what interpretive tools are used, such a provision must be narrowly construed and only in that way given effect to: any other application is a hostage to trust and offensive to the equilibrium created by the Constitution: such would severely undermine and damage the judicial institution, even if that is already considered, by some, as the weakest limb of government.
125. To this day the most informative case on Article 37 remains O’Farrell & Gorman in respect of which, despite some suggestions to the contrary, there has been a remarkable lack of criticism in the sixty years or more since Kingsmill Moore J. delivered the court’s judgment in that case. One such however is that offered by Professor Casey, whose views can be distilled into the following: firstly, that no “real reasons” were given for the courts definition/description of “limited” and that “it was possible” a different meaning could prevail, namely being “restricted in number or subject matter”, secondly, since the courts have not definitively decided on what the word “limited” means in Article 34.3.4 of the Constitution “it is difficult to accept” that in differentiating between that provision and Article 37, the court was correct. The main justification for these criticisms, if such can be so described, is that a more expansive approach “would give the Oireachtas wider scope for experiment” (321): so that for example the legislature could hive off “certain specified jurisdictions e.g. negligent actions” to a tribunal ( Constitution Law in Ireland (3rd Ed.): ( The Judicial Power under Irish Constitutional Law : I.C.L.Q., Vol. 24, No. 2, p. 305/324: C.U.P. 1975).
126. It has been further said that the decision has been marginalised and is seen as being increasingly anomalous: apart from Casey and Keady, I see no widespread support for such views but the generalised criticism of that case and McDonald offered by Professor Gwynn-Morgan should be noted. Keady in my view has been elevated into a position it simply does not merit: McCarthy J. referenced O’Farrell & Gorman as being one of a number of cases which he endorsed as having examined the meaning and breadth of the “constitutional prescript” of the administration of justice (202): and he then cited a particular passage from the court’s judgment (204). Having stated that the decision should not be extended to the code in question he added the innocuous comment “if it is to be extended at all”, which in my view has since been over-emphasised, wrongly applied and indeed probably misconstrued. The reservation expressed by O’Flaherty J. arose from his understanding that the historical relationship of the court with the solicitor’s profession was virtually the entire basis for the decision (para 62 supra): a view which I respectfully disagree with: there were many more reasons which underpinned that decision (paras. 38 and 39 supra). It would I think have been more convincing if the learned judge had solely relied on An Garda Síochána being a disciplined force which required internal control, for not extending O’Farrell v. Gorman to that particular code.
127. In any event, what cannot be ignored or downplayed are the numerous judicial statements which subsequently have endorsed Kingsmill Moore J.: likewise, what cannot be disregarded is the fact that no one, including those which might have ventured disapproval, have set out an alternative version which would better orientate Articles 34 and 37. It is I think extremely difficult to disagree that what must be “limited” are the “functions and powers” in issue: if that is so, to suggest that such can be done by ‘numerical restriction or isolated subject matter’, is very much open to question and highly debateable. Further, such a meaning would interface with Article 34.3.4 in a manner which invades, and even perhaps questions its independent value. Such provision is the foundational principle for the type of restriction suggested (para. 125): however it clearly applies only to the jurisdiction of certain courts, and not as suggested on the Article 37 side: if it was the latter, one would have to wonder why there would be two provisions giving rise to the same result. In addition, in circumscription either by number or subject matter, it would be possible to exclude from Article 34 entire areas of justiciable issues such as commercial law, family law, or indeed apart from crime, any other sector of the legal order: just the fear expressed by MacMenamin J. in his judgment. Indeed, if permissible, one could readily see a statutory provision deeming or declaring such a move as being “limited” in nature. Furthermore, such a step would erode or certainly lessen public confidence in the carefully structured balance, even if imprecise, envisaged by the Constitution.
128. In every sense if an activity is limited (as it is in Article 37), it must have some parameters beyond which it ceases to be limited. On the dictionary side, there are several meanings to that word, but none of these can be really influential and certainly not decisive for our purposes: these might suggest, ‘modest’, ‘not far reaching’ or ‘confined to special situations’ (Kelly 6.4.10). That being so, it seems to me that the most appropriate yardstick is to judge this derogation from the red line constitutional norm that justice is administered by judges in established courts.
129. Kingsmill Moore J. suggested that where the powers conferred, looked at collectively, are such as to involve decisions, orders, or the doing of acts which the Constitution reserves to duly appointed judges, such therefore cannot be validated by Article 37. That of course must be correct, but begs the question: its purpose therefore was to give an indicative flavour of what he meant to convey, rather than being an end to itself. Having discounted the type of limitation endorsed by Casey (para. 125), the judge went on to describe the test previously outlined, which it will be recalled, is as follows: “The test should be as to whether a power is or is not “limited” in the opinion of the court, lies in the effect of the assigned power when exercised. If the exercise of the assigned powers and functions is calculated ordinarily to effect in the most profound and far reaching way the lives, liberties, fortunes or reputations of those against whom they are exercised they cannot properly be described as “limited”.” Whilst I acknowledge its subjective element, it is not unexplained as to meaning or effect: in my view, to this day his analysis of Article 37 has not been bettered.
130. Those who have argued for an expansive understanding of this term, including Casey, are for the most part motivated by a concern that unless so provided, the exercise by the executive branch of its functions will be curtailed and restricted and thereby will have the potential of rendering government action less effective than what otherwise it might be. Whilst fully understanding that viewpoint, it provides a very doubtful legal or constitutional justification for such an approach. Firstly, it belittles the carefully constructed separation between the judiciary and all other agencies which exist to implement the executive function. This role of the former is, as stated, a core norm, it cannot be neutralised for the sake of government efficiency and effectiveness. In essence, what is being suggested is that the Constitution should somehow be subservient to the government and not that the government, like every other organ of state, every person, citizen, entity and body, should be constitutionally bound. The preservation of Article 34 in its rightful positioning is not for the accretion of power for the judiciary or to enhance the status of judges themselves: rather, it is to serve the people, to protect frights and to uphold the rule of law.
131. Secondly, if the government felt unduly restricted in the exercise of its functions or that its ability to govern was overly curtailed, it could have taken a number of opportunities to move an effective amendment to Article 37 in that regard. Some might say that this would be a last resort, but that very provision in its original form was added to by the 6th Amendment in 1979 dealing with adoption. Thirdly, and being ever so mindful of the absolute necessity that the executive must function through a multiple of agencies, I can see no serious evidence that the decided caselaw has caused the government undue concern in conducting the functions which it wishes to undertake and in the manner of doing so. Several bodies, other than the Land Commission, such as the Censorship of Publications Board, the Social Welfare system, various tribunals etc, have all survived constitutional challenge from time to time. Finally, in this context, it is significant to note that it has not been suggested by the constitutional law officer of the state, who appeared on behalf of all respondents, that the efficacy of government or its policy was or is being compromised by the principles which currently govern Article 37: although in fact he was seriously concerned that this case should not be resolved by reference to that provision, which if viewed through a particular lens, could create an entirely different test from McDonald, thus potentially causing great uncertainty for the legislature. Therefore, these arguments in my view, even if they were such as should be considered, cannot have any real influence on the outcome of the point under discussion.
Functions of the AO/LC:
132. In considering possible protection under Article 37, it is not of insignificant value to note that the start point is that the adjudicative process of the WRC under the 1977 and 1991 Acts, constitute the administration of justice under Article 34 of the Constitution: all members of the Court so agree. This in itself is of some note. The powers given by the Act to facilitate this process have been set out earlier in this judgment and do not require repetition here. However in short, could I highlight the following: firstly, that almost fifty pieces of legislation are now subject to that process, secondly, virtually an entire area of law, namely all employment disputes are governed by it and whilst its provisions do not preclude an action at law, nevertheless the evidence is dramatic in showing what a vast number of complaints have been adjudicated upon by the WRC in the period between October, 2015 to May, 2019. Therefore, it must be seen as the mainstream vehicle within which such disputes are resolved. Thirdly, as the facts of this case strikingly demonstrate, dismissal issues can have major consequence for reputation, good name and for the right to earn a livelihood. Fourthly, the jurisdiction in monetary terms is limited only by double what a person’s salary is. Given that the average industrial wage is approximately €40,000, it can therefore extend from €80,000 at that average level up to multiples of that figure in the case of high earners. Without any imagination whatsoever an award could be significantly greater than the jurisdiction of the Circuit Court in personal injury matters, in contract and in other tort actions. Furthermore, both the AO and the Labour Court have the power to order the re-engagement or re-instatement of an employee which is at least akin to the court making a mandatory order, in effect compelling even a recalcitrant employer to resume a working relationship with an unwelcome employee. Accordingly, given those widespread powers of the WRC, and noting the size of the national workforce which in this jurisdiction is upward of 2.32 million, I take the view that the same are constitutionally flawed and must remain so unless whatever limitations can be found in respect of such powers are sufficient for Article 37 purposes.
Suggested Limitations:
133. One of the most striking and worrying aspects of what is suggested as constituting the necessary limitations is the commonality of the features proposed. Firstly, the absence of inherent jurisdiction: to my knowledge there is no entity, other than the High Court and this Court (now also the Court of Appeal) which can be said to have a power, authority or a jurisdiction which is correctly described as “inherent”. Secondly, apart from the High Court and the existing appellate structure, every creature of statute is bound by the parameters of its legislative remit: the extent of it is a matter of construction and not relevant here. What matters is that all such bodies must remain within the four corners of the powers deposited with them. Thirdly, it must logically follow that there will be a point beyond which such bodies cannot go: for at that stage they would have exceeded their jurisdiction. Take the Circuit Court as an obvious example but there are many others also: on the civil side the most common actions might be in contract and tort, the upper limit of which is €60,000 for personal injuries and otherwise €75,000. Fourthly, all inferior courts and bodies are subject to the supervisory jurisdiction of the High Court, whether by way of certiorari, mandamus, injunction or other remedy, now for the greater part all moved by way of judicial review: this is a constitutional imperative as is evident from Article 34.3.1. Fifthly, with the vast majority of decisions, adjudications, and determinations by whatever name, there is some right of review, re-assessment or of appeal, whatever that might be called and finally, the reliance on the activities of the WRC being confined to resolving disputes under a limited number of Acts is entirely unpersuasive: in fact in light of the numerous enactments involved, the force of the point is to the contrary. As applying to the 2015 Act, I cannot see in any of these matters how either singularly or collectively they could constitute the type of “limitation” envisaged by Article 37 of the Constitution. Furthermore, the role of the District Court in the enforcement process, is for the reasons above outlined, so denuded of substance that it could not in my view be regarded as adding value to the respondents’ alternative claim as seeking safety in that provision.
134. In looking at such “limitations” said to exist in relation to the WRC and said to maintain the survival of the process under Article 37, I confess, with the greatest respect that if such are intended to create some sort of template by which future Article 34/37 issues are to be determined, I fear that the yardstick of judgment by such routine matters could gravely undermine our present understanding of that provision and Article 34 and could potentially lead the legislature to contemplate precisely what Professor Casey had in mind which if occurred, would seriously damage the judicial role. The concerns of MacMenamin J. are not at all far-fetched in this regard. That of course would be a bad day for our constitutional stability.
135. Two further points if I might, even if the first is slightly out of sequence. In my view, it is only where a court has a decisive influence on the substantive outcome that its involvement could possibly save the powers of an administrative body which otherwise violated Article 34. In saying this, I am speaking of the courts’ intervention at first instance level and not at any later stage. Secondly, I have never taken the view that a right of appeal could render constitutional the exercise of judicial power by a non-judicial body. I cannot see any logic or justification for such view. In any event in this case, the appeal is to the Labour Court which is not a court and its independence in a constitutional sense is questionable.
Conclusion on Article 37:
136. None of the above suggested reasons are such as to constitute a “limitation” as properly understood, of the adjudicative functions and powers of the WRC under the 2015 Act. I therefore would hold that such provisions are inconsistent with Article 34 and cannot attract the protection of Article 37 of the Constitution.
Constitutional Justice/Fair Procedures:
137. Under this heading of argument, the appellant suggests that his rights under Article 40.3.1 and 2 of the Constitution have been violated. Four specific complaints were made in this regard.
Legal Qualification :
i) The Act contains no requirement for adjudication officers or members of the Labour Court to have any legal qualifications, training or experience: This was rejected by Simons J., who found that a decision-maker with relevant experience would be able to make necessary determinations of fact and, in respect of any difficult legal questions, that there was adequate recourse to the Labour Court but in particular also to the High Court.
The Oath
ii) There is no provision for an adjudication officer to administer an oath or affirmation: this was also rejected by the trial judge, who held that there was no constitutional requirement to have an unfair dismissals claim conducted on the basis of sworn evidence. The procedures provided for were obviously less stringent than those in criminal proceedings but also had attendant benefits such as informality and expedition. Having the evidence sworn before the Labour Court on appeal, was sufficient to put the mind of the learned judge at ease.
Cross Examination :
iii) There is no express provision made for the cross-examination of witnesses: this argument failed to have regard to the principles enumerated in that case, namely that administrative proceedings had to be conducted in accordance with the laws of natural of justice; at a practical level this translated into an assumption that if cross-examination was required, the adjudication officer would permit it. Therefore, the 2015 Act is not necessarily defective in this regard.
Otherwise than in Public :
iv) The proceedings before an adjudication officer are held otherwise than in public: The final argument made was rejected by Simons J. on the basis that a public hearing in an appellate court could remedy the hearing at first instance being conducted in private.
138. At the level of principle I reject the suggestion, so frequently found in the case law of many courts, including this Court, that a review, by appeal, case stated, judicial review or otherwise, can somehow be a substitute for an unacceptable system operating at the front line: save in very limited circumstances, a two or multi-step measure, unless made absolutely clear that such is truly a composite event or a single process, demands at each level, the application of such constitutional justice as may be appropriate. As experience has shown, employment disputes can often involve difficult questions of law as well as having to discern fact from non-fact, accuracy from inaccuracy and truth from un-truth. Those who regularly practice their profession or carry out their responsibilities involving such issues, are well qualified to that end, whereas persons even if otherwise suitable, may fall short of having the requisite skill, knowledge or experience in this regard. The availability of an appeal to the Labour Court or to the High Court on a point of law is no substitute for these attributes.
139. In relation to the WRC, I fully appreciate why it may not be necessary on all occasions to have qualified lawyers determining such issues. However, the availability of a panel of such persons would in my view be central to the legitimacy of the process, as would be the discerning appointment of suitable individuals in any given case who would, having regard to the issues, be in a position to properly reflect the requirements of constitutional justice. If a lawyer is reasonably required, a lawyer should be appointed. In fact, any doubt or uncertainty in this regard should be dealt with by the exercise of a generous perspective rather than by the adoption of a minimalist approach. In the belief that the process will heretofore be conducted on that basis, I would not regard the absence of legal qualifications, per se, as being unconstitutional in respect of the appointment of, or the exercise of his or her function by an adjudication officer.
140. With respect, it seems extraordinary to me that no provision has been made for the administration of the oath in respect of a body, such as that under discussion, given the range of its powers and functions vested in it. Where, as I suspect, the vast majority of cases that go to a hearing are contentious, certainly as to fact and maybe as to law, the absence of an express power in this regard is utterly lacking in constitutional compliance. In that regard, I agree entirely with the order proposed by O’Donnell J.
141. Given the presumption of constitutionality and the absolute obligation on every “adjudicating” body to act judicially and comply with natural and constitutional justice, the failure to expressly make provision for cross examination, even if extremely difficult to understand, is however not fatal. Again, where there is any conflict of fact, the adjudicator, to render compliance with his or her duty, must readily accede to any bona fide request made by either party to cross examine a witness on their evidence. This is one of the most basic instinctive requirements of justice. A denial, even where peripheral, should only be made, by conscious decision and then on sustainable grounds which are duly explained, as otherwise such could potentially render the process unlawful.
142. With regard to the proceedings being held otherwise than in public, I agree with O’Donnell J. and MacMenamin J. that the blanket ban on hearing any of the referred cases in public is unconstitutional. I can well accept that a statutory provision which for just cause allows such a course to be adopted could and most probably would be constitutionally valid, but without vesting any discretionary power on the adjudicator to make that decision, the underlying statutory direction cannot stand.
The Systemic Point:
143. A further argument made under Article 40.3 of the Constitution was that the system of adjudication by adjudicating officers suffered from systemic deficiencies which travelled far beyond this particular case. The essential evidence in this respect was given by both Mr. Tom Mallen B.L., and Mr. Kieran O’Meara, Solicitor. Whilst the appellant’s own solicitor, who himself is an experienced practitioner in this area, supported what was averred to, it is perhaps more satisfactory to stand that aside given his retainer by Mr. Zalewski. In any event, both Mr. Mallen and Mr. O’Meara, each of whom are pre-eminent in the field of industrial relations law, stated in their evidence that since its creation in 2015, they have knowledge of several hearings, conducted by A.O.s without appropriate qualification or experience and who in their view lacked the competence to decide issues significant to a just resolution of the complaint. It is difficult to fault either for not identifying a particular adjudication officer or for not giving the title of individual cases. Neither Mr. Mallen nor Mr. O’Meara were cross examined on their affidavits and given the breadth of their experience in this area and the cogency of their evidence, the disclosures made are troublesome indeed. For me, a call on this issue is much closer than it was for the learned trial judge. However, if one steps back a little from that detail and considers the overall flavour of the evidence given, it would not for me take a great deal more to render this a very serious issue indeed. However, in view of the other conclusions, I do not find it necessary to go further other than to again highlight the importance of addressing these concerns in an acceptable way.
Conclusion
144. In conclusion, I hold that the procedures adopted by the WRC violate Article 34 of the Constitution and are not saved by Article 37. Secondly, even if I did not reach this conclusion, I would also hold that the appellant’s rights under Article 40.3.1 and 2 have been breached in the manner indicated. I would hear the parties as to the precise orders which should follow. In the above circumstances and given the conclusions reached, it is unnecessary to consider the Convention claim.
Tomasz Zalewski v Adjudication Officer
(Rosaleen Glackin),
Workplace Relations Commission, Ireland and the Attorney General (respondents) and Buywise Discount Store Limited (notice party):
2018 No. 45
Supreme Court
20 March 2019
[2019] 30 E.L.R. 121
(Clarke C.J., O’Donnell, McKechnie, MacMenamin, Finlay Geoghegan JJ.)
FINLAY GEOGHEGAN J.
delivered her judgment on 20 March 2019 saying:
1. This appeal concerns the requisite locus standi to pursue a challenge to the constitutionality of certain sections of the Workplace Relations Act 2015 (the “2015 Act”) and the Unfair Dismissals Act 1977 (the “1977 Act”), as amended. The challenge is in reliance on Arts 34.1 and 37.1 and also Art.40.3 of the Constitution.
2. The appeal is from an order of the High Court (Meenan J.) made on 13 March 2018, for the reasons set out in two written judgments delivered on 8 February 2018 ([2018] IEHC 59) and 13 March 2018 ([2018] IEHC 156). The first judgment determined the locus standi issue and the second relates only to costs.
Background facts
3. The facts relevant to the issues on this appeal are not in dispute. They are set out in the High Court judgment and it is sufficient to outline the facts relevant to the issue in this appeal. The appellant was dismissed from his employment with the notice party in April 2016. He made a claim of unfair dismissal under the 1977 Act and a claim for non-payment of money in lieu of notice under the Payment of Wages Act 1991, as amended (the “1991 Act”). The claims are made pursuant to rights conferred by the 1977 Act and the 1991 Act and, as required by the statutes, the complaints were referred to the Workplace Relations Commission (WRC) pursuant to the provisions of the 1977,1991 and 2015 Acts.
4. The appellant was notified of a hearing before the first named respondent, the adjudication officer, on 26 October 2016. The hearing was opened by the adjudication officer, who accepted written submissions and documentation. An application was then made to adjourn the hearing in circumstances where a witness for the employer was not available. No evidence was heard. The adjournment was granted but the adjudication officer was not in a position to fix the date of the adjourned hearing.
5. A hearing date of 13 December 2016 was subsequently fixed to hear evidence. However, on that date, when the appellant and his lawyers attended the hearing, he was informed that the adjudication officer had already issued her decision in relation to his claims the previous week and that the hearing that morning had been scheduled in error.
6. A written decision in respect of the appellant’s claim was issued by the adjudication officer on 16 December 2016, in which she recorded that she gave the parties an opportunity to present evidence and “on the basis of the evidence and written submissions” made findings and held, inter alia, that the complaint of unfair dismissal was not well-founded. She also dismissed the claim pursuant *126 to the 1991 Act. A protective appeal to the Labour Court was lodged on behalf of the applicant on 25 January 2017, without prejudice to the judicial review proceedings.
Judicial review proceedings
7. By order of the High Court (Noonan J.) made on 20 February 2017, leave was granted to seek all the reliefs sought at para.(d) of the statement of grounds dated 20 February 2017, on all the grounds set out at para.(e) therein.
8. The first three reliefs sought were declarations in the following terms:
“(i) A Declaration that section 40 and/or section 41 and/or section 42 and/or section 43 and/or section 44 and/or section 45 and/or section 47 and/or section 48 of the Workplace Relations Act 2015, as amended and/or section 8 of the Unfair Dismissals Act 1977, as amended, are invalid having regard to the provisions of the Constitution and in particular Art.34.1 and Art.37.1 thereof.
(ii) A Declaration that the powers and functions granted to an adjudication officer pursuant to the provisions of the Workplace Relations Act 2015, as amended, constitute the administration of justice, and/or the discharge of constitutional functions and powers of a judicial nature, for the purposes of Art.34 of the Constitution which are not limited within the meaning of Art. 37 of the Constitution, such that the provisions of the Workplace Relations Act 2015 in relation to adjudication officers (including, inter alia, sections 40, 41, 42, 43 and 44 thereof) are invalid having regard to the provisions of the Constitution and in particular Articles 34 and 37 thereof.
(iii) Further and/or in the alternative, a Declaration that section 40 and/or section 41 and/or section 42 and/or section 43 and/or section 44 and/or section 45 and/or section 47 and/or section 48 of the Workplace Relations Act 2015 and/ or section 8 of the Unfair Dismissal Act 1977 (as amended by section 80 of the Workplace Relations Act 2015) are invalid having regard to the provisions of the Constitution in failing to respect and vindicate the Applicant’s right to constitutional justice and fair procedures, pursuant to the provisions of Art.34.1 and Art.37.1 and Art.40.3.1 and Art.40.3.2 of the Constitution, in the determination of his proceedings pursuant to the provisions of the Unfair Dismissals Act 1977 (as amended) and the Payment of Wages Act 1991 (as amended).”
9. The next relief sought was an order of certiorari quashing the decision of the adjudication officer of 16 December 2016. That was sought as consequent upon the preceding declarations. Thereafter a declaration was sought, if necessary, pursuant to s.5 of the European Convention on Human Rights Act 2003 (the “2003 Act”), that the same sections of the 2015 Act and 1997 Act were incompatible with arts 6 and/or 13 of the European Convention on Human Rights. Finally, an injunction was sought prohibiting any further steps being *127 taken in the appeal and a claim for damages was included.
10. Paragraph (e) of the statement of grounds includes detailed grounds upon which it is contended that the identified sections of the 2015 Act and the 1977 Act are invalid having regard to the provisions of the Constitution and in particular, Arts 34 and 37. The statement of grounds is verified by the appellant and in addition, an affidavit was sworn by his solicitor verifying certain of the facts in relation to the treatment of the appellant’s claim before the first and second named respondents and also other facts relating to his experience in other claims before the WRC.
11. No notice of opposition has been filed by or on behalf of the respondents or notice party. The solicitor for the respondents issued a letter dated 4 April 2017, in which it was accepted that the adjournment was granted by the adjudication officer on 26 October 2016 for the purpose of enabling a witness to give evidence and stated that after the conclusion of that hearing, the adjudication officer “in error filed the complaint as a ‘Decision to Issue’ rather than ‘Adjourned to further Hearing’”. The letter also stated that the adjudication officer subsequently prepared her decision to enable it to issue within 28 days and identified each of these as an “administrative error on the part of the Adjudication Officer”, which her clients sincerely regretted.
12. It was accepted that the decision of 16 December 2016 could not stand and must be set aside. The letter then stated:
“… In those circumstances, I am instructed to consent to an Order being made in the following terms on the return date of 25 April 2017:
1. An order of certiorari quashing the Decision.
2. An order remitting the complaint of Tomasz Zalewski bearing the Complaint Reference Numbers CA-0004535-001 and CA-00004535-002 to the Workplace Relations Commission to be investigated and heard by an adjudication officer other than the First Respondent.
3. An order for the costs of the proceedings to be made in favour of the applicant, to be taxed in default of agreement.
In my view, the making of an Order in the above terms will resolve the proceedings. It is my view that, given that our clients are consenting to the quashing of the Decision made by the adjudication officer which is the fundamental object of these proceedings to impugn, there is no basis on which your client may properly maintain a challenge to the validity of the Workplace Relations Act, 2015 (as amended), the Unfair Dismissals Act, 1977 (as amended) and/or any of the provisions of those Acts, whether by reference to the Constitution, the European Convention on Human Rights Act 2003 or otherwise.”
13. That offer was not accepted by the appellant. Thereafter, a motion was issued on behalf of the respondents in substance seeking to dismiss the appellant’s claim for the declarations pursuant to the Constitution and the 2003 Act. The dismissal *128 was sought in the context of the conceded orders of certiorari quashing the decision of 16 December 2016 and the remittal of the appellant’s claims pursuant to the 1977 Act and the 1991 Act for hearing by a different adjudication officer.
14. The respondents’ application was made primarily on the ground that the appellant no longer had locus standi to pursue the claims for the declarations sought pursuant to the Constitution and 2003 Act, as he had obtained the order of certiorari which, it was contended, was the primary relief sought.
High Court judgment
15. The High Court judge, having earlier cited a well-known passage from the judgment of Henchy J. in Cahill v Sutton [1980] I.R. 269, identified at para. 26 of his judgment the issue which he had to determine as whether, in returning the appellant’s claim for hearing to the Workplace Relations Commission to be heard by a different adjudication officer, he will be “in real or imminent danger of being adversely affected, by the operation of the statute …”. The conclusion reached by the High Court judge was that the appellant was not in danger of being adversely affected by the operation of the statute.
16. His reasons related to a document issued by the WRC exhibited by the solicitor for the respondents entitled “Procedures in the Investigation and Adjudication of Employment and Equality Complaints”. The particular passage relied upon was that set out at p.6 of the document, which provides:
“The adjudication officer can ask questions of each party and of any witnesses attending. He or she will give each party the opportunity to give evidence, to call witnesses, to question the other party and any witnesses, to respond and to address legal points …”
17. The High Court judge concluded that if the procedures envisaged in that document had been followed, the decision of December 2016 would have been avoided, and it followed that in returning the appellant’s case to the WRC, he was not in real or imminent danger of being adversely affected by the statute.
18. The subsequent High Court judgment of 13 March 2018 concerned costs. The appellant was granted the costs of the proceedings up to 4 April 2017 only, the date which the letter of concession was issued by the respondents.
19. The appellant was granted leave to appeal from the entire order of the High Court by a determination issued on 3 July 2018 (see [2018] IESCDET 94). In that, the court decided that the locus standi of the applicant to continue with his challenge to the validity of the identified sections of the 2015 Act (and possibly the 1977 Act) for which leave had been granted, in circumstances where the specific decision also challenged had been quashed by agreement and his claim remitted for determination in accordance with those Acts, involves a matter of general public importance.
*129
Appeal
20. The core submission of the appellant is that, as a person who has made a claim that he has been unfairly dismissed within the meaning of the 1977 Act and to the remedies provided by that Act and to unpaid wages in lieu of notice under the 1991 Act, that he has locus standi to challenge the constitutionality of provisions of the 1977 Act and the 2015 Act which require those claims to be determined by an adjudication officer of the WRC and on appeal by the Labour Court. He submits that as a person who is about to have his claims for redress and compensation for his alleged unfair dismissal and unpaid wages determined in accordance with a statutory scheme which he contends is inconsistent with the Constitution, he is in real and imminent danger of being adversely affected by the operation of the relevant provisions of the 2015 Act and the 1977 Act, as amended.
21. The respondents submit that he is not in such real and imminent danger of being adversely affected. They rely upon the fact that these judicial review proceedings were prompted by the decision of the first named respondent issued on 16 December 2015. They submit that he is in the same position as a person who has made a claim to the WRC and whose procedure has not yet commenced and that he did not challenge the statutory scheme when he first made the claim to the WRC. They seek to rely upon the fact that he voluntarily made the claim under the statutory scheme which he now seeks to challenge. They also submit that, in pursuing the constitutional challenge in the present judicial review proceedings, he is seeking to make a pre-emptive strike and that, in accordance with the judgment of Clarke J. in Nawaz v Minister for Justice [2012] IESC 58; [2013] 1 I.R. 142, he does not have the requisite locus standi to do so.
22. Counsel for the respondents referred also to the well-known presumption of constitutionality which applies to the challenged sections, and includes that the Oireachtas intend “that proceedings, procedures, discretions and adjudications which are permitted, provided for, or prescribed by an Act of the Oireachtas are to be conducted in accordance with the principles of constitutional justice.”: see East Donegal Co-Operative Livestock Mart Ltd v Attorney General [1970] I.R. 317 at 341.
23. The respondents rely, in addition, upon the general approach of judicial restraint to the determination of challenges to the constitutionality of Acts of the Oireachtas. They refer to the line of authority which requires a court to first consider and decide non-constitutional issues and if such decision determines the case between the parties, that it should then refrain from expressing any view on constitutional issues which have been raised: see Murphy v Roche [1987] I.R. 106.
24. There is no dispute that the single issue on appeal is whether or not the appellant, following the making of the order of certiorari and the remittal of his *130 claims for unfair dismissal and unpaid wages to the WRC for determination by a different adjudication officer, has the requisite standing, in accordance with the test set out in Cahill v Sutton [1980] I.R. 269, to pursue the challenges to the identified sections of the 2015 Act and the 1977 Act for which leave has been granted. The court has not been asked to review the test for standing in Cahill v Sutton [1980] I.R. 269.
Constitutional challenge
25. The appellant’s locus standi to challenge the constitutionality of the relevant provisions of the 2015 Act and the 1977 Act on the grounds set out in the statement of grounds requires a brief consideration of the relevant statutory provisions.
26. The 1977 Act, as amended, defines what constitutes an unfair dismissal. A person who has been unfairly dismissed within the meaning of the Act is entitled to redress. Section 7 provides that the potential redress is to be whichever of the matters set out in s.7(1)(a), (b) or (c) which “the adjudication officer or the Labour Court, as the case maybe, considers appropriate having regard to all these circumstances”. The types of redress are (a) reinstatement, (b) re-engagement and (c) compensation. Section 8 of the 1977 Act, as amended, provides for claims to be referred to the Director General of the WRC, who in turn refers it to an adjudication officer. In accordance with s.8(1)(c), the adjudication officer is required to; enquire into the claim; give the parties an opportunity to be heard and present any evidence relevant to the claim; make a decision in relation to the claim consisting of either an award of redress or its dismissal; and give a copy of the decision in writing to the claimant. There are also other more detailed provisions which are not relevant to the issues under appeal.
27. Section 5 of the 1991 Act imposes obligations on employers in relation to the payment of wages. Section 6 of the 1991 Act provides for decisions by an adjudication officer under s.41 of the 2015 Act in relation to complaints concerning a breach of s.5 of the 1991 Act. Section 41(1) of the 2015 Act provides for the making of complaints to the Director General of the WRC that an employer has contravened a provision specified in Pt 1 or Pt 2 of Sch.5 to that Act. The 1991 Act is included in that schedule.
28. Section 40 of the 2015 Act provides for the appointment by the Minister of adjudication officers for the purposes of the Act. It is only necessary to note that the section does not require that a person have any particular qualification to be eligible for appointment as an adjudication officer.
29. The net effect of these provisions relevant to the plaintiff’s claim is that his claim for redress in respect of the alleged unfair dismissal pursuant to the 1977 Act and his claim in respect of unpaid wages pursuant to the 1991 Act must, in accordance with the statutory scheme, be made and determined *131 by making the complaint to the WRC and having the claim determined by an adjudication officer appointed by the Minister. Further, the adjudication officer is not required to have any particular qualification and more precisely no legal qualification. In addition, the statutory provisions do not provide for and hence, do not permit an adjudication officer to take evidence upon oath and there is no penalty provided for any person who gives untrue evidence in the course of an inquiry into a claim.
Discussion and decision
30. It is necessary to consider the challenge to the constitutionality of the sections of the 2015 Act and the 1977 Act being made by the appellant on the grounds set out in the statement of grounds in respect of which leave was granted.
31. The first challenge is based upon Arts 34 and 37 of the Constitution. It is contended that the sections of the Act which both require and provide for the determination of the claims of the appellant that he is entitled to redress for an unfair dismissal under the 1977 Act and is entitled to the payment of wages wrongfully retained under the 1991 Act constitutes the administration of justice which is not limited, and accordingly, he is entitled to have those claims determined by a court. That challenge is clearly independent of any question of the procedures which an individual adjudication officer might follow in determining the claims of the appellant.
32. The second challenge made is that the sections of the Act which provide for the determination of the claims by an adjudication officer, the manner of appointment of same, the fact that they are to be heard in private and the provisions relating to the taking of evidence are such that they are contended to be in breach of the appellant’s rights to constitutional justice and fair procedures in the determination of his claims pursuant to the 1977 Act and the 1991 Act and hence, are inconsistent with Art.40.3 of the Constitution. It is important to emphasise, as counsel for the appellant confirmed, that this challenge is being made on the basis of what is either required by the statute or not provided for in the statute, and hence, it is contended, not permitted by the statute, as distinct from the probability or possibility that an adjudication officer, in any individual case, might not determine the claims in accordance with constitutional justice and fair procedures.
33. The grounds identified in submission by counsel in support of the Art.40.3 challenge are (i) the absence of any requirement of a legal qualification for a person who might be appointed an adjudication officer pursuant to s.40 of the 2015 Act; (ii) the fact that proceedings are to be held otherwise than in public pursuant to s.41(13) of the 2015 Act; (iii) the absence of any provision for the taking of sworn evidence or any penalty for giving untrue evidence; and (iv) an appeal process to a body which does not include persons required to be legally *132 qualified.
34. It forms no part of any assessment required by this court on this appeal to consider whether each or any of the foregoing grounds are arguable. That has been determined by the High Court, at the low threshold required by the decision of this court in G. v Director of Public Prosecutions [1994] 1 I.R. 374 by the order granting leave. What is relevant is that the grounds sought to be advanced on behalf of the appellant are ones which go to the statutory scheme established by the challenged sections and do not relate to potential actions or inactions which might be taken or not taken by an adjudication officer in exercise of the powers conferred or permitted by the 2015 Act or any other relevant statute.
35. The High Court judge appears to have misunderstood the nature of the constitutional challenge and to have considered the locus standi of the appellant in relation to a challenge based upon a concern or contention that the second adjudication officer would not exercise his or her statutory functions in accordance with the principles of constitutional justice and fair procedures. If that were the challenge, then the High Court judge would have been correct in concluding that a person who has made a claim which is not yet determined would not normally have standing to pursue a constitutional challenge to the enabling sections by reason of the aforesaid presumption of constitutionality. The cited presumption that the statutory powers would be exercised in accordance with the principles of constitutional justice and fair procedures applies. That is not to exclude the possibility of unusual circumstances which could give a person whose claim has not yet been determined the requisite standing. However, I am in agreement with the trial judge that a single, albeit significant, breach of fair procedures by one adjudication officer would not be sufficient to give standing to challenge the sections from which the powers derive, where a matter was remitted to a different adjudication officer and there existed a handbook setting out procedures as quoted.
36. However, I am satisfied that the constitutional challenge sought to be made by the appellant as set out in the statement of grounds and upon which he seeks the declarations of unconstitutionality are challenges to the statutory scheme which subsist independently of anything permitted by the statutes in question, which an individual adjudication officer might or might not do.
37. I have also considered the submission that the courts in general exercise judicial restraint in considering challenges to the constitutional validity of Acts of the Oireachtas. This is well established, as exemplified by the judgment of Finlay C.J. in Murphy v Roche [1987] I.R. 106, relied upon by the respondents. In that judgment he stated at p.110, “ … where the issues between parties can be determined and finally disposed of by the resolution of an issue of law other than constitutional law, the court should proceed to consider that issue first and, if it determines the case, should refrain from expressing any view on *133 the constitutional issue that may have been raised.” However, as also stated in Murphy v Roche [1987] I.R. 106, these principles “must of course be subject in any individual case to the overriding consideration of doing justice between the parties”.
38. It does not follow, that on the facts of this appeal, the courts should refrain from considering the claims for declarations of invalidity of the identified sections of the 2015 Act and 1977 Act by reason of the order of certiorari. The appellant is a person who, because of the order of certiorari, now returns to have his claims for unfair dismissal and payment of unpaid wages determined by an adjudication officer in accordance with the statutory scheme which he contends to be inconsistent with Arts 34 and 37 of the Constitution and also with his right, pursuant to Art.40.3, to have his entitlement to redress (if any) for the alleged wrongs determined in accordance with constitutional justice and fair procedures. He was granted leave to seek those reliefs and it cannot be said that the issues between the parties in the judicial review proceedings have been finally determined by the order of certiorari. He remains in the position of having his claims potentially determined in accordance with a statutory scheme which he contends is inconsistent with the Constitution.
39. The respondents also sought to rely upon the fact that the appellant had not challenged the constitutionality of the statutory scheme prior to the initial hearing before the adjudication officer. That is not a submission which in my view goes to the standing of the appellant to pursue the constitutional challenge. If anything, it is in the nature of a defence of estoppel and does not appear appropriate to express any further comment as a notice of opposition has not yet been delivered.
40. The final submission made on behalf of the respondents which I have considered and rejected is that made in reliance upon the judgment of Clarke J. in this court in Nawaz v Minister for Justice [2012] IESC 58, [2013] 1 I.R. 142. It is that the appellant does not have locus standi, as the claim sought to be made is a pre-emptive strike against an adverse decision which is not permissible. Nawaz v Minister for Justice [2012] IESC 58 does not appear to me to so decide.
41. Nawaz v Minister for Justice [2012] IESC 58 concerned a challenge in plenary proceedings to the constitutionality of s.3 of the Immigration Act 1999 (the “1999 Act”). That section provides for the issue by the Minister for Justice and Equality of certain specified notices to a person in respect of whom he proposes to make a deportation order and for the making of deportation orders. Mr Nawaz, at the time he issued proceedings, had applied for humanitarian leave to remain in Ireland but no decision had been made. If, however, he was refused leave to remain he would have been at risk of the Minister issuing notices under s.3 of the 1999 Act and making a deportation order against him.
42. In the High Court, the primary assertion made on behalf of the State *134 was that the substance of Mr Nawaz’s constitutional challenge was a collateral attack on the process provided for by s.3 of the 1999 Act and that as such, it was caught by the requirements of s.5 of the Illegal Immigrants (Trafficking) Act 2000 (the “2000 Act”).Section 5(1) of the 2000 Act precludes a person questioning the validity of certain notifications and a deportation order issued under s.3 of the 1999 Act “otherwise than by way of an application for judicial review …”. Hence, the State contended that the purpose of Mr Nawaz in challenging the constitutionality of s.3 of the 1999 Act was to attack the validity of any notice which might be issued to him or deportation order made under s.3 of the 1999 Act and as such, could not be brought by plenary summons.
43. That contention was rejected by Laffoy J. in the High Court. She concluded that the challenge sought to be made to the constitutionality of s.3 of the 1999 Act was not caught by s.5 of the 2000 Act.
44. Following this conclusion, Laffoy J. also considered the standing of Mr. Nawaz to pursue the constitutional challenge notwithstanding no deportation order had been made against him. She held, in reliance upon Cahill v Sutton [1980] I.R. 269 and Curtis v Attorney General [1985] I.R. 458 and Desmond v Glackin (No.2) [1993] 3 I.R. 67, that Mr Nawaz had sufficient locus standi to bring his claim, despite the fact that the final determination on the application for leave had yet to be made by the Minister.
45. In the Supreme Court, the appeal was decided on the entitlement of Mr Nawaz to pursue the constitutional challenge to s.3 of the 1999 Act in the plenary proceedings, by considering and determining the question as to whether or not Mr Nawaz was on the facts of the appeal constrained to pursue any such challenge in judicial review proceedings by reason of s.5 of the 2000 Act. No decision was made on his locus standi. The conclusions of Clarke J. are set out at paras 53 and 54:
“[53] In those circumstances it seems to me that two conclusions can be reached. First, the substance of the challenge to s.3 brought in these plenary proceedings does involve a questioning, albeit indirectly, of the validity of measures which were feared might be taken in Mr Nawaz’s case, which measures come within those listed in s.5 of the Act of 2000. The second consequence of that analysis is that there was no reason in practice why appropriately constituted judicial review proceedings could not have been maintained.
[54] It follows that I respectfully disagree with the trial judge and would conclude that those aspects of the challenge brought in these plenary proceedings which assert the constitutional invalidity of s.3 of the Act of 1999 are caught by s.5 of the Act of 2000 and, thus, cannot validly be brought by plenary summons. However, for reasons which I would hope to explore, it does not seem to me that that is the end of the matter.”
46. By the time of the Supreme Court appeal, a deportation order had been made *135 against Mr Nawaz and he had commenced a judicial review to challenge it. The judicial review had not included a challenge to the constitutionality of s.3 of the 1999 Act. The Supreme Court exceptionally permitted an amendment (out of time) to the judicial review proceedings to include the constitutional challenge to s.3 of the 1999 Act by reason, it would appear, of the prior plenary challenge.
47. The respondents, in submissions, had relied upon certain observations of Clarke J. at para.45 of his judgment in which he referred to the constitutional challenge as being a “pre-emptive strike”. These observations were, however, made in the context of considering whether or not the challenge to s.3 of the 1999 Act was caught by s.5 of the 2000 Act and not in relation to a locus standi of Mr Nawaz to challenge s.3 of the 1999 Act. By reason of the decision in the Supreme Court that the challenge to s.3 of the 1999 Act was caught by s.5 of the 2000 Act, it was unnecessary for the Supreme Court to consider whether or not Mr Nawaz had standing to challenge the constitutionality of s.3 of the 1999 Act. The only decision on locus standi was that of the High Court which found in favour of Mr Nawaz.
Conclusion
48. For all the foregoing reasons, I have concluded that the appellant does have locus standi to pursue the constitutional challenge and the appeal should be allowed. No distinction was made in relation to his locus standi to pursue the claims pursuant to the 2003 Act. It follows that so much of the order of the High Court made on 13 March 2018 as ordered that the appellant does not have locus standi to challenge the constitutional validity of the identified provisions of the 2015 Act and the 1977 Act or maintain a claim under the 2003 Act and dismissed the balance of the proceedings should be vacated and that the balance of the judicial review proceedings be remitted to continue in the High Court.
49. It is important to make clear that this decision does not determine the arguments which the appellant is entitled to pursue in his constitutional challenge relevant to the grounds upon which he has been granted leave. I make this observation by reason of the distinction made, in my view correctly, by McCarthy J. in his dissenting judgment in Norris v Attorney General [1984] I.R. 36 at p.90 that locus standi “ … means the status or qualification, as it were, to maintain the action, and not the right to advance arguments of a particular kind, unrelated to the facts of the case, in support of the challenge made to the statute …”. I respectfully agree with this observation. If there is objection made to any of the arguments sought to be advanced on behalf of the appellant who has locus standi to pursue the constitutional challenge, that would be initially a matter for the High Court and may involve different considerations.
50. The other observation I wish to make is that the respondents sought to advance arguments that the constitutional challenge should have been brought *136 by way of plenary proceedings, whilst acknowledging that it is permissible to pursue a constitutional challenge to an Act of the Oireachtas in judicial review proceedings. The High Court may of course remit an application for judicial review for plenary hearing in accordance with the provisions of Ord.84 r.26(5). If the respondents consider that this is required in the present case, it remains open for such an application to be made and a matter for the High Court to determine whether any such order should be made.
Richard Carron (claimant) v Fastcom Broadband Limited t/a Fastcom:
UD1515/2013
Employment Appeals Tribunal
3 October 2016
[2017] 28 E.L.R. 44
October 3, 2016
The full text of the Tribunal’s determination was as follows:
The claimant’s representative gave the Tribunal some background information. On 19 March 2011 the claimant met both directors of the respondent company. They told him things were not working and that they would pay him to the end of April. The matter seemed to be resolved.
However, the claimant instituted a grievance. The present respondent *45 representative was advising them at that time. On 21 March 2011 the claimant attended a performance meeting and this meeting did not deal with his employment. The claimant received minutes of this meeting that in his view are not a true reflection of what was said.
A second meeting was held where the claimant was informed that his position was at risk.
When the claimant consulted with his representative he said that he believed that the respondent had recorded the first meeting. The claimant’s representative asked for the production of documents and the recording of the meeting. A complaint had been made to the Data Commissioner.
In the view of the claimant’s representative two issues arise: first, that of qualified privilege, and secondly, that of litigation privilege. He submitted that in this case qualified privilege does not arise.
The respondent’s representative replied by stating that no recording existed of the meeting on 21 March 2011 and therefore such a recording cannot be produced. The claimant’s grievance was dealt with by the HR officer who worked in the same office as the two directors. It appears that there are no notes of the meetings and no memorandum of the investigation of the grievance. Nevertheless, the respondent disagrees with the suggestion the meetings were informal considering that the claimant considered himself dismissed.
Determination
The Tribunal carefully considered the submissions of both parties on the preliminary issue. The Tribunal is a creature of statute, without any inherent powers apart from those conferred by statute. It can only apply the law as it currently stands. The issues of legal advice privilege and litigation privilege have been, to an extent, overtaken by more recent developments in practice, and the law in this area as it applies to advisors such as Peninsula does not appear to have been fully tested in this jurisdiction.
The claimant has made a claim of unfair dismissal against his former employers. In the course of preparation for these proceedings the claimant’s representative made a request to the respondent to disclose certain documentation under the provisions of the Data Protection Act. These were refused.
As a preliminary issue when the matter was first set down for hearing the claimant’s representative requested a ruling from the Tribunal that the communications between the respondent and their representatives, Peninsula Business Services (Ireland) Limited, were not subject to either qualified privilege, legal advice privilege or litigation privilege, and were consequently subject to the Data Protection Acts and could be required to be produced to the Tribunal in the course of the hearing of the case. The preliminary issue therefore to be determined is whether the communications between the respondent and their representatives, Peninsula Business Services (Ireland) Limited (hereafter referred *46 to as “Peninsula”), were privileged either on the basis of legal advice privilege or litigation privilege or otherwise, and therefore not subject to the Data Protection Acts and not appropriate to be called for by a Tribunal to be produced at the hearing of the action.
A large number of authorities were furnished and extensive legal submissions have been made by both the claimant and the respondent. However, it is clear that there is a lack of legal precedent directly on the point being sought to be determined by the parties.
The first thing for the Tribunal to consider is the status of the respondent’s representatives, who are Peninsula. They self-refer in the submission presented as “legal advisors”. This is disputed by the claimant who, in his submission at para.12, points out that they self-describe themselves on their website as “Employee Assistant Specialists”. The respondent’s submission states that the service provided by Peninsula has other elements including “provision of contracts and employment documentation in respect of employment law and representation before the various employment fora”. It is accepted by the Tribunal that Peninsula regularly appear and expertly represent employers before the Employment Appeals Tribunal and have done for a significant period of time. The question however arises are Peninsula “legal advisors”? The position is somewhat complicated by the fact that the representative attending the hearing from Peninsula is in fact a qualified solicitor. However, it is common case that his involvement with the case on behalf of the respondent post-dated the issuing of the complaint under the Unfair Dismissals Act.
In the judgment of Smyth J. in Shell E. & P. Ireland Limited v McGrath (No. 2) [2007] 2 1.R. 574, 581, the judge stated, “The rationale for legal professional privilege is to ensure that a client may fully instruct his lawyer freely and openly safe in the knowledge that what he says to his lawyer in confidence will never be revealed without his consent”.
It seems clear that Peninsula are not primarily lawyers. They are primarily consultants and advisors to employers which advice includes an element of advice on legal matters. In the English case of Three Rivers District Council v Governor and Company of the Bank of England (No. 6) [20051 1 A.C.610 Scott L.J stated as follows:
“24. First, legal advice privilege arises out of a relationship of confidence between lawyer and client. Unless the communication or document for which privilege is sought is a confidential one, there can be no question of legal advice privilege arising. The confidential character of the communication or document is not by itself enough to enable privilege to be claimed but it is an essential requirement.”.
The authorities are to the effect that legal advice privilege is privilege over communication made either to or by a lawyer during the course of a professional *47 legal relationship. The definition of a lawyer for this purpose includes solicitors, barristers, in-house lawyers, foreign lawyers and the Attorney General (see D. McGrath, Evidence, 2nd edn., pp.663 and 664). For the purposes of this Determination, the Tribunal accepts that legal advice privilege attaches only to such communications between lawyer and client and vice versa which seek or contain legal advice. Giving legal advice by a non-lawyer does not appear to attract the protection of legal advice privilege.
Legal advice privilege can be differentiated however from litigation privilege. In Halsburys Laws of England it was stated:
“Litigation privilege can extend to communications between a lawyer or the lawyer’s client and a third party where they are prepared for the purposes of litigation. Communications between a party and a non-professional agent or employee or third party are only privileged if they are made both (1) in answer to inquiries made by the party with the agent for and at the request or suggestion of his solicitor, or without any such request, but for the purpose of being laid before a solicitor or counsel for the purpose of obtaining his advice or of enabling him to prosecute or defend an action, or prepare a brief; and (2) for the purposes of litigation existing or in contemplation at the time. Both these conditions must be fulfilled in order that privilege may exist.” ( Halsburys Laws of England (2009) Vol. 11 para.565) (emphasis added)
In Flannery v Catharsis Technology [2015] IEHC 714, McGovern J. stated:
“9. Once litigation is in prospect or pending, communications between a client and his solicitor or agent or between one of them and a third party is privileged if it comes into existence for the sole or dominant purpose of giving or getting legal advice for the purpose of the litigation or collecting evidence for that purpose.”
The Tribunal accepts that privilege attaches to the communications between the respondent and their advisors, Peninsula, from the time when they were notified of the complaint of unfair dismissal being made to the Workplace Relations Service on the 29 October 2013.
The respondent seeks to argue that privilege applies because their advice may have been given for the purposes of pending or anticipated litigation. The Tribunal determines that no such privilege attaches to their communications with Peninsula, and that communications between Peninsula and the respondent prior to the date the claimant’s claim was filed with the Workplace Relations Service are not privileged.
Kilsaran Concrete, Kilsaran International Ltd v Vitalie Vet
UDD1611
Labour Court
8 June 2016
[2016] 27 E.L.R. 237
8 June 2016
([2016] E.L.R. 237)
Subject: Employment
Keywords: Disciplinary procedures; Fairness; Proportionality; Reasonableness; Unfair dismissal
Unfair dismissal – Fair procedures – Fair hearing – Implied procedures – Notice of procedures – Reasonable conduct of employer – Additional allegations during investigation – Procedures applicable during appeal – Unfair Dismissals Acts 1977 (No.10) to 2007 (No.27)
Facts
The appellant/complainant was an employee of the respondent company. The complainant was a truck driver and had been working for the respondent company for some seven years before the facts which have led to this case.
The complainant was under a legal and contractual obligation to have in his possession at all times while driving a digital tachograph card (“DTC”). In early 2014, the complainant’s DTC was due for renewal. The respondent was on notice of this and reminded the complainant of it. The complainant experienced difficulties in renewing his DTC due to a systems error within the Courts Service which prevented the complainant from successfully renewing his DTC.
The complainant had the matter resolved but had nevertheless been driving his truck for some weeks without a valid DTC. The Road Safety Authority (“RSA”) carried out a spot-check on the complainant and discovered that even though his DTC was now valid, the complainant had been driving for some weeks without a valid DTC, which is an offence which carries a fine both for the complainant and for the respondent. The respondent was notified of this by the RSA.
The respondent then initiated disciplinary procedures against the complainant by way of letter which identified the complaint against the complainant as being that of driving without a valid DTC. During the first disciplinary meeting of the process the complaint offered a general defence. A second disciplinary meeting was arranged by way of letter which intimated a tentative conclusion on the part of the respondent, namely summary dismissal. At the conclusion of the second disciplinary the complainant was informed that his employment with the respondent was being terminated with immediate effect.
The letter informing the complainant of his dismissal, recited a number of additional complaints against the complainant which had not been put to him at any prior stage during the disciplinary process.
The complainant appealed this decision within the company and same was heard by the respondent’s HR manager. The respondent’s own disciplinary policy contains a detailed appeals procedure but this procedure was not followed. The complainant’s internal appeal was dismissed and the decision to dismiss the complainant was upheld.
Determined by the Labour Court in allowing the appeal finding that the employee had been unfairly dismissed and awarding the sum of €40,500 as compensation: *238
(1) An employee the subject of a disciplinary process is entitled to be informed at the outset of the complaint(s) being made against him/her in order to ensure he/she has a meaningful opportunity to prepare and to present his/her defence. Preston v Standard Piping [1999] E.L.R 233 referred to.
(2) Any hearing or appeals procedure the employer may adopt has implied in it fair procedures. Glover v BLN Limited [1973] I.R. 388 referred to.
(3) The sanction imposed on foot of a disciplinary process must be proportionate and reasonable in all the circumstances. Lennon v Bredin Employment Appeals Tribunal Determination M160/1978; McCurdy v Adelphi [1992] E.L.R 14 applied.
(4) The complainant was unfairly dismissed as the sanction imposed was disproportionate, he was deprived of a fair hearing as he was not made aware at the outset of the disciplinary process of the allegations against him and the respondent failed to comply with its own procedures at the appeal stage.
(5) Compensation of €40,500 was awarded to the complainant taking account of his contribution towards his dismissal and his lack of forthrightness with the employer.
Cases referred to in the determination:
Glover v BLN Limited [1973] I.R. 388
Lennon v Bredin Employment Appeals Tribunal Determination M160/1978
McCurdy v Adelphi [1992] E.L.R. 14
Preston v Standard Piping [1999] E.L.R. 233
The full text of the Labour Court’s determination was as follows:
Subject
Appeal of Adjudication Officer Recommendation No. R-151532-UD-14/JT.
Background
The employee appealed the recommendation of the adjudication officer to the Labour Court on the 20 January 2016 in accordance with s.9(1) of the Unfair Dismissal Acts 1977 to 2015. A Labour Court hearing took place on the 24 May 2016. The following is the determination of the Court.
Determination
Background to the appeal
This matter came before the Court by way of an appeal referred by Mr Vitalie Vet (“the complainant”) against a decision of an Adjudication Officer. The appeal was conjoined with appeals under the following enactments: the Payment of Wages Act 1991; the Organisation of Working Time Act 1997; and the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Road Transport Activities) Regulations 2012 (S.I. No. 36 of 2012). All of the appeals were listed for hearing on the same day – 24 May 2016. Each of the appeals *239 other than that referred under the Unfair Dismissals Act 1977 (“the Act”) was withdrawn at the commencement of the appeal hearing.
The adjudication officer’s decision is dated 15 December 2015. Notice of the complainant’s appeal was received by the court on 20 January 2016.
Preliminary Issues
(a) Correct name of the respondent employer
There was some confusion in relation to the correct legal name of the respondent in this matter arising from the Adjudication Officer’s decision and the parties’ submissions to the court. The Adjudication Officer’s decision refers to the respondent as “Kilsaran Concrete, Kilsaran International Limited”. This is also the name used by the complainant’s solicitors in the notice of appeal. However, the submission filed by the complainant’s solicitors refers to the respondent as “Kilsaran Concrete Limited trading as Kilsaran International”. IBEC, on behalf of the respondent, in its submission refers to “Kilsaran Concrete t/a Kilsaran International Ltd”.
The matter was raised on the court’s initiative before the commencement of the appeal hearing and both parties agreed that the correct legal name of the respondent in the within proceedings is “Kilsaran Concrete”. This entity bears the Companies Registration Office number 23927 and has a registered address at Piercetown, Dunboyne, Co. Meath. The proceedings were amended accordingly, by agreement.
(b) Date of termination of employment and date of dismissal for the purposes of the Act
The complainant’s submission made reference to two different termination dates: 3 June 2014 and 4 June 2014, respectively. The notice of appeal stated that the complainant’s employment ended on 4 July 2014. The respondent, at the commencement of the hearing and consistent with its written submission to the court, stated its position to be that the complainant was advised verbally on 3 June 2014 that his employment had ceased with immediate effect from that date. This was confirmed by letter dated 4 June 2014.
On the basis of the foregoing, the respondent submitted to the court that the complainant’s original complaint to the Rights Commissioner (as he then was) was made outside the statutory time-limit by one day: the complaint was received by the Rights Commissioner on 3 December 2014. The respondent further submitted that this matter had been raised at the first instance hearing. The Adjudication Officer does not advert to it, however, in the body of his decision. In any event, as he proceeded to hear the case and issue a decision, it has to be presumed that if the issue was considered by him that he decided against the respondent on that point. It is undisputed that the complainant’s employment was terminated summarily. The court, therefore, informed the parties that having regard to the definition of “date of dismissal” in s.1 of the Act, it would not make a decision on *240 this issue until it had concluded hearing the evidence on the substantive matters that fell to be considered by it on the appeal.
As it transpired, however, the issue of whether the initial complaint was brought within time or not was rendered moot having regard to the following provision in the respondent’s disciplinary policy which came to the court’s attention in the course of the hearing. At para.3.1.6 of the aforementioned policy, as recited in the contract of employment issued by the respondent to the complainant, the respondent provides:
“… and no disciplinary sanction shall take effect until after the time for lodging an appeal has expired, or until the appeal has been determined as the case may be.”
The complainant in this matter did avail himself of his right to appeal from the decision to dismiss him, communicated to him verbally on 3 June 2014. The outcome of the appeal was communicated to the complainant by letter dated 7 July 2014. The earliest date on which this could have been received by the complainant was the following day, 8 July 2014. That being the case, and applying para.3.1.6 it follows that the six-month period for bringing a complaint under the Act commenced, at the earliest, on 8 July 2014 and expired, at the earliest, on 7 January 2015. The court finds, therefore, that the claim was filed in time. This is without prejudice to the court’s finding below in relation to the substantive claim under the Act and the implications that flow therefrom for determining the complainant’s date of dismissal for the purposes of the Act.
Summary of key facts and events
The complainant is a truck driver with almost 30 years’ experience. He commenced employment with the respondent on 4 July 2007. Prior to the events that culminated in the complainant’s dismissal in 2014, the complainant had one disciplinary sanction imposed on him in 2013 (for a matter unrelated to the reason for his dismissal). The latter had expired before the process under consideration in these proceedings commenced.
The complainant is required, as a professional driver, to have in his possession at all times while performing his duties a valid and current digital tachograph card (“DTC”). These cards are issued for five year terms by the Road Safety Authority (“RSA”). A driver is required to insert his DTC in the fixed tachograph machine of his truck at the commencement of each journey.
The complainant’s then DTC expired on 23 February 2014. It is common case between the parties that the respondent had informed the complainant on at least two occasions in 2014, prior to that date, that his card was due to expire and that he should take the necessary steps to renew it in a timely fashion. The complainant’s evidence was that he attempted to do so on a number of occasions using the RSA’s online facility. The system did not permit him to renew his DTC and indicated that he should try again later. Eventually, he made telephone *241 contact directly with the RSA and was informed that there was an issue with his driving licence and the system had recorded that he had been disqualified from driving by a court in 2013 arising from a road traffic offence that had occurred in August 2011. In fact, although the District Court had handed down a penalty of disqualification, the complainant successfully appealed that sanction to the Circuit Court which instead imposed a fine of €500 on the complainant. The original sanction was stayed as a matter of law pending the outcome of the complainant’s appeal to the Circuit Court.
The complainant submitted that he contacted his solicitors on 25 February 2014 in relation to the difficulty he was having in renewing his DTC. On making enquires, his solicitors discovered that the problem was caused by the Courts Service’s failure to update their database which continued to reflect the original sanction of disqualification that had been imposed by the District Court. It was not until 21 March 2014 that the RSA finally confirmed to the complainant’s solicitors that it had removed the reference to the disqualification sanction from the complainant’s profile. The complainant thereafter promptly and successfully renewed his DTC. He was issued with a new DTC by the RSA, backdated to 23 February 2014.
However, certain events occurred in the meantime which ultimately culminated in the complainant’s dismissal. On April 14 (by which date the complainant had a valid DTC), the vehicle he was driving was stopped by the RSA for a random inspection. The RSA inspector examined the data held by the truck’s tachograph recorder and ascertained that the truck had been driven between 18 March and 4 April 2014 without a valid DTC. The inspector contacted the respondent’s transport manager (Mr Roy Hegarty) by telephone and email on 20 May 2014 to inform him of its finding in this regard and to inform him that the RSA intended to visit the company’s premises in order to conduct an inspection of driver records.
Mr Hegarty immediately initiated an investigation to determine which driver(s) may have been responsible for driving the truck identified by the RSA on the dates in question without a valid DTC as to do so is regarded as a serious breach of legislation. The respondent uses an e-tag system which records which driver is driving each truck at any particular time. From this system, Mr Hegarty confirmed the complainant as the driver in charge of the relevant truck on the dates identified by the RSA inspector. He also spoke with the complainant’s plant manager and suspended the complainant on full pay with effect from 21 May 2014 pending an investigation of the issue. It appears that the complainant admitted to Mr Hegarty on that date that he had driven the vehicle without a valid DTC. He claimed that he had used his expired DTC while driving. The complainant was provided with a copy of the respondent’s disciplinary policy both in English and Russian along with his letter of suspension.
On 23 May 2014, the complainant received written notification from Ms Lennon, the respondent’s HR manager, that a formal disciplinary hearing would take place on 27 May 2014 to be conducted by Ms Lennon and Mr Hegarty.
*242
The letter identified the subject-matter of the disciplinary investigation in the following terms:
“… it would appear that you committed a serious breach of both your legal and contractual obligations as a truck driver by failing to use a valid digital tachograph card in your truck for several periods between 18 March 2014 and 4 April 2014.”
Eleven separate documents that formed part of the respondent’s investigation were appended to the letter of invitation to the disciplinary hearing. The letter also advised the complainant of his right to representation at the meeting and of the potential outcomes of the disciplinary process, up to and including dismissal. Although nothing turns on it, the meeting was postponed from 27 May 2014 to 28 May 2014. The complainant attended but waived his right to be represented at the meeting.
At the aforementioned meeting, Mr Hegarty put the allegation to the complainant that he had driven his company vehicle on the stated dates without a valid DTC and asked him for an explanation. Mr Hegarty’s evidence to the court was that the complainant was unforthcoming in response. He continued to maintain that he had been able to insert his old DTC into the tachograph and that it had been accepted. Mr Hegarty was adamant that this is not possible. His evidence in this regard was not challenged on cross-examination. Mr Hegarty also told the court that the complainant referred to his efforts to renew his DTC online in February 2014 and the difficulties he encountered at that time – but only in general terms. The complainant did not inform Mr Hegarty about the systems error in the Courts Service database that was ultimately the root cause of his difficulty with the RSA.
The complainant was invited by letter dated 29 May 2014 to a second disciplinary meeting to take place on 3 June 2014. The subject-matter of the disciplinary hearing was again recited in identical terms to those stated in the original disciplinary letter quoted from earlier in this determination. However, the letter went on to advise the complainant as follows:
“I must advise you that unless new information or evidence comes to light, you will be informed of the company’s decision into this matter at the meeting on the 3 June 2014. I must also advise you that if our decision deems your actions to be of gross misconduct, this may lead to your instant dismissal. Our decision will be confirmed to you in writing following our meeting on 3 June 2014.”
This letter again advised the complainant of his right to representation at the second disciplinary meeting. The most benign construction that one can put on this letter is that the respondent had arrived at a tentative decision to dismiss the complainant summarily but was willing to give him one further opportunity at the meeting scheduled for 3 June 2014 to put forward some explanation for his *243 conduct which explanation might cause the respondent to resile from its tentative decision.
The meeting took place as scheduled and the complainant once again waived his right to representation. Mr Hegarty’s evidence to the court was that the complainant provided no further information to explain his decision to drive the company’s vehicle without a valid and current DTC. He further told the court that, in his view, the complainant was reluctant to accept the seriousness of the matter. When questioned by the court as to when he had made the decision to dismiss the complainant, Mr Hegarty stated that following the first disciplinary meeting, and having considered what the complainant had offered in the course of it by way of explanation for his behaviour, he (Mr Hegarty) “had decided what he thought the action would be if no new evidence came to light at the second meeting”. Mr Hegarty was categorical in his evidence to the court that the complainant “had not shown good judgment and couldn’t, therefore, be trusted.”
The complainant was informed at the conclusion of the meeting on 3 June 2014 that his employment was being terminated with immediate effect on that date for gross misconduct. This was confirmed to him by letter dated 4 June 2014. He was advised in the letter of his right to appeal the respondent’s decision within five working days.
In cross-examination, counsel for the complainant, Ms Sarah O’Mahoney BL, put it to Mr Hegarty that the respondent’s letter of 4 June 2014 (which is signed by Mr Hegarty himself) recites additional allegations over and above the singular allegation which was stated in the disciplinary invitation letters of 23 May 2014 and 29 May 2014, respectively. The additional allegation is formulated as follows:
“You failed to notify your manager and/or myself that you had been stopped on 14 April 2014 by An Garda and an inspector of the Road Safety Authority. You also failed to inform management of the infringement recorded on the roadside check form on April 14, and you did not present a copy of this form to an appropriate member of management until the company was contacted by the Road Safety Authority regarding your breach of the regulations. As a result of your failings, both you and the company are facing potential prosecution and fines of at least €5,000 each.”
Counsel further put it to Mr Hegarty that if the respondent wished to investigate additional allegations to the complainant in a disciplinary context, in the interests of fairness, the respondent should have taken one of two alternative courses of action, i.e. continued to deal with the original allegation to the end of disciplinary process and then commenced a separate process in relation to any additional matters, having advised the complainant in advance about them; or abandon the original investigation, and start afresh having notified the complainant in writing of each of the allegations against him that would fall to be investigated in the fresh process. Mr Hegarty did not refute what was put to him in this regard by counsel *244 and accepted that he had taken the matters referred to in the above quotation from the dismissal letter into account in arriving at his decision.
The complainant availed himself of the opportunity to appeal the decision to summarily dismiss him. He set out his grounds of appeal in a two-page hand- written letter dated 6 June 2014 and addressed to the HR manager. In his letter of appeal, the complainant reiterates his admission that he had driven with an expired DTC and he accepts that his plant manger had asked him on a number of occasions to renew the DTC. He listed the dates on which he had tried to telephone the RSA about the difficulty he had accessing their online system and advised the respondent (it would appear for the first time) that the RSA’s online service had displayed a message on his computer screen to the effect that a problem with his driving licence was the reason why his DTC was not being renewed. He went to outline that he had availed of the assistance of his solicitors to get this issue resolved and that he did in fact have a valid and current DTC when he was stopped by An Garda and the RSA Inspector on 14 April 2014. He also offered an explanation as to why he hadn’t handed the RSA incident form given to him on that date into the respondent. His explanation in this regard was that he had been sick and taking medication. In mitigation, he also stated that the respondent’s management was aware that he had been driving the company vehicle while his DTC was expired and was allowed to leave the garage with the vehicle in those circumstances. He supported his statement of appeal with copies of his mobile phone records which demonstrated that he had telephoned the RSA on 25 February 2014 and again on 14 March 2014. He also supplied copy correspondence dated 27 March 2014 from his solicitors to him confirming that the RSA had advised that their computer system had been updated following the solicitors’ intervention with the Courts Service. The letter of appeal was followed by a number of requests by the respondent for additional supporting documentation. The complainant’s solicitors wrote to the respondent on 27 June 2014 setting out in some detail the background to the complainant’s conviction in the District Court and his subsequent successful appeal to the Circuit Court for mitigation of sanction.
The appeal hearing took place on 30 June 2014 and was conducted by Mr Derry McKeown, a director of the respondent. Mr McKeown wrote to the complainant on 7 July 2014 setting the outcome from the appeal meeting “which was held under the company’s disciplinary procedure”. Mr McKeown upheld the decision to summarily dismiss the complainant.
The following is an extract from that outcome letter:
“4. In your appeal letter dated June 6 you state that the reason for the online application difficulties was due to the fact that you had previously been disqualified from driving. Whilst you successfully appealed this disqualification through the courts, the Road Safety Authority had not updated their records to reflect this fact and as a result this affected your online application process. Having spoken with *245 Roy Hegarty and Mary Lennon, they advise me that at no stage during previous meetings with them did you disclose the reason why your online application attempts had failed. You simply told them that you received an error message stating that there was a problem with your driver’s licence.
This raises serious concerns for me on two levels. First, you were disqualified from driving for a period of time whilst employed by the company as a truck driver. I find it totally unacceptable that an employee of the company, whose job it is to drive a company vehicle, would do so without a valid driver’s licence.
Secondly, you did not inform any member of company management about your disqualification. It was a sufficiently serious matter for you to engage the services of your solicitor however you failed to consider the potential serious consequences for the company for having a disqualified driver on the road. During our meeting on June 30 when I asked you why you did not inform the company at the time, you made no comment other than to confirm that you had not informed anyone within the company.
5. Regarding your failure to inform your manager that you were stopped by the Gardaí and the Road Safety Authority on 14 April 2014, up until your appeal letter dated June 6 you led Roy Hegarty and Mary Lennon to believe that you had simply forgotten to inform Ronan Barry and that you had also forgotten to hand him the roadside check form. However, in your appeal letter you claim that the reason you did not hand in the form or inform Ronan Barry was because you were on medication that affected your ‘mental skills’.
Again, this raises a serious concern with me. It leads me to question your ability, at the time, to drive a truck in a safety conscious manner. If you felt that your concentration levels and/or ‘mental skills’ were reduced as a result of taking medication then you should have informed your manager. Again, during our meeting on June 30 when I asked you if you thought it was safe for you to drive whilst taking this medication you refused to answer and made no comment….
Your failure to have a valid DTC whilst driving a company truck is a serious offence and whilst it may not be specifically included in the examples of gross misconduct, this does not lessen its seriousness and it is a clear breach of company policy.
In addition, your failure to inform management that you were driving with an expired DTC, your failure to inform your manager about the RSA roadside check on April 14, your failure to inform management of your previous disqualification, and finally the fact that you were on medication that was potentially affecting your mental skills, all lead me to fully agree with the decision to terminate your employment.”
The respondent’s disciplinary policy included in the contract of employment issued to the respondent (a copy of which was submitted to the court) provides at para.3.1.6:
“Appeals
Appeals will be heard by the HR manager or (at the company’s election) by any *246 other suitable person who has had no previous involvement in the case. Within five days of the receipt of such a notice of appeal the company will write to the employee and his/her representative, giving not less than three working days’ notice of the hearing.
The proceedings will normally take the following form:
• The company representative who sanctioned or dismissed the employee shall briefly outline the grounds for sanction or dismissal. They will then submit any documentary evidence and call any witnesses necessary in support of his/her action, and after questioning them, the employee and person conducting the proceedings may question them further.
• The employee or their representative will briefly state the grounds of appeal.
• The employee will submit any documentary evidence and call any witnesses necessary to support their appeal.
• The company representative will summarise the evidence for the disciplinary sanction.
• The employee will summarise the grounds for their appeal.
• The person conducting the proceedings will consider their conclusions and write to the employee to convey the company’s decision, following the hearing.
An appeal can be made on the following grounds:
a) Where the employee believes that the disciplinary decision is unjust or;
b) Where the employee contends that a matter of fact has been omitted or, if referred to at the disciplinary meeting, that fact has not been properly taken into account in reaching the decision or;
c) Where the employee contests the appropriateness of the type of disciplinary action decided upon.”
When questioned by the Court, Mr McKeown confirmed that he was familiar with the respondent’s disciplinary policy and had previously carried out a number of appeal hearings thereunder. For that reason, he told the Court, he hadn’t needed to re-read the policy in advance of conducting the appeal in the complainant’s case. When pressed by the Court in relation to whether or not the process implemented by him when conducting that appeal complied with the process required by the respondent’s own policy, Mr McKeown accepted that it didn’t.
Discussion
Section 6(7) of the Act provides:
“(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so–
(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and
(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14(1) *247 of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act 1993) of section 7(2) of this Act.”
Section 14(1) of the Act refers to “a notice in writing setting out the procedure which the employer will observe before and for the purpose of dismissing the employee”, i.e. the employer’s stated disciplinary policy.
Walsh J, giving the majority judgment for the Supreme Court in Glover v BLN Ltd [1973] I.R. 388, said:
“This court in In re Haughey [1971] I.R. 217 held that [Article 40.3] of the Constitution was a guarantee of fair procedures. It is not, in my opinion, necessary to discuss the full effect of this Article in the realm of private law or indeed of public law. It is sufficient to say that public policy and the dictates of constitutional justice require that statutes, regulations or agreements setting up machinery for taking decisions which may affect rights or impose liabilities should be construed as providing for fair procedures. It is unnecessary to decide to what extent the contrary can be provided for by agreement between the parties.”
The court in Glover v BLN Ltd [1973] I.R. 388 decided that where there was provision in a contract of employment for some form of disciplinary procedure, it was an implied term of the agreement that any enquiry held under it should be conducted fairly. That principle applies in the present case. It is quite clear from the case law of the superior courts in this jurisdiction, that there is no fixed standard of natural justice which lays down that certain specific matters must be complied with. The protection to be afforded to a person whose conduct is being investigated will vary according to the circumstances. However, there are a certain fundamental requirements of fair procedures that cannot be dispensed with, regardless of the particular circumstances that arise in an individual disciplinary matter. They include: (i) the requirement to make the employee who is the subject of the investigation aware of all the allegations against him or her at the outset of the process; (ii) the requirement that an employer who has published a disciplinary procedure to its employees follow those procedures scrupulously when conducting a disciplinary process; and (iii) in the event that an allegation against the employee is upheld, any disciplinary sanction imposed is proportionate to the complaint that has been substantiated. (The foregoing does not purport to be a comprehensive statement of fair procedures but merely focuses on those that fall for particular consideration by the Court in the instant case).
(i) It is self-evident that the rationale for the requirement that the person who is subject to a disciplinary investigation should be made fully aware of the complaint(s) against him or her is to ensure that he/she has a meaningful opportunity both to prepare and to present his/her defence to the complaint(s) (Preston v Standard Piping [1999] E.L.R. 233 refers). It is abundantly clear to *248 the Court – and admitted by the respondent’s witnesses – that the respondent’s disciplinary investigation dealt with allegations that had not been formally put in writing to the complainant either at the outset of the investigation or in the course thereof. The respondent’s witnesses also accepted, and the court finds, that those additional allegations were material to the decision taken to summarily dismiss the complainant and the subsequent decision taken at the appeal stage to confirm that sanction.
(ii) The procedures provided for in the company’s disciplinary policy, it is clear, envisage a hearing-type situation at the appeal stage, in the course of which the person who made the disciplinary decision would be present and would make a statement outlining the grounds for the disciplinary sanction, would exhibit any relevant documentation and present any witnesses for questioning by the employee who is the subject of the disciplinary sanction. The procedures, likewise, envisage the employee as having a similar opportunity to present evidence and witnesses in support of his appeal. None of this happened in this case. It follows that the respondent failed to comply with its own stated procedures in relation to the manner in which an appeal of a disciplinary sanction should be conducted.
It appears also to be the case, as discussed in detail above, that the respondent failed to apply that provision stated in its own written disciplinary policy that deems any disciplinary sanction to be stayed and without effect until the outcome of any appeal stage has been communicated to the employee in question.
(iii) One of the key principles regulating the reasonableness of a dismissal is compliance with the principle of proportionality: McCurdy v Adelphi [1992] E.L.R. 14. The principle is a component of the general s.6(7)(a) principle of reasonableness. It is also a component of S.I. No. 146 of 2000, imported by s.6(7)(b) of the Act.
Summary dismissal is the nuclear weapon in the employer’s arsenal of disciplinary sanctions. Section 8 of the Minimum Notice and Terms of Employment Act 1973 saves an employer from liability (under that Act) for statutory minimum notice where the dismissal is for certain forms of very serious misconduct. Commenting on s.8, the Employment Appeals Tribunal in Lennon v Bredin Employment Appeals Tribunal Determination M160/1978 stated:
“We have always held that this exemption applies only to cases of very bad behaviour of such a kind that no reasonable employer could be expected to tolerate the continuance of the relationship for a minute longer; we believe the legislature had in mind such things as violent assault or larceny or behaviour in the same serious category.”
The evidence presented by the complainant to the court at the hearing of this matter was that management at the depot where the complainant worked from were aware that he had not renewed his DTC in a timely fashion yet he was permitted to continue to perform driving duties. The respondent confirmed that they had been *249 aware in early 2014 that the complainant was due to renew his DTC; its witnesses gave evidence that the complainant had been reminded of his obligation to do so; they were unable to state that any follow-up checks had taken place to ensure that the complainant had in fact successfully renewed his DTC. The period of weeks during which the complainant continued to drive without a current DTC (while, as it transpires, making stringent efforts through his solicitors to address the root cause of his difficulty) only became an issue for the respondent following receipt by it of notification from the RSA that it intended to conduct an inspection of the respondent as a consequence of a routine check on 14 April 2014 during which it had retrospectively discovered that one of the respondent’s vehicles had been driven on a number of occasions between 18 March and 4 April 2014 by a driver who did not have a valid DTC.
When the respondent commenced the disciplinary process that culminated in the complainant’s summary dismissal, the complainant did not have any live warnings on his personnel file. He had one previous warning which had expired. No evidence was presented on behalf of the respondent’s witnesses that any serious consideration was given to a sanction other than summary dismissal at either the disciplinary or appeal stages. The court accepts that the complainant’s reticence during the disciplinary investigation stages about the origin of his difficulties with the RSA did not help his cause. However, at the appeal stage he had been far more forthright and submitted correspondence from his solicitors which confirmed the true facts. In those circumstances, the respondent ought to have been more alive to the question of whether summary dismissal was a proportionate sanction in the light of what they then knew about the respondent’s situation in February 2014.
Having regard to the foregoing, and the evidence proffered by the respondent’s witnesses, the court finds that the sanction of summary dismissal was disproportionate and too severe in all the circumstances.
Conclusion
Accordingly, the court is of the view that the complainant must succeed in these proceedings, both on the basis that the sanction imposed by the respondent was disproportionate to the complaints made and also on the basis that the complainant was deprived of a fair hearing by not being made aware at the outset of the disciplinary process of the entirety of the allegations against him. The respondent also failed to comply with its own stated procedures at the internal appeal stage. The court finds, for the foregoing reasons, that the principles of natural justice were not complied with.
Decision
The Court enquired of the parties what their preferred remedy would be under the Act in the event that it determined the appeal were to succeed. Both parties expressed their preference for an award of compensation. Having regard to the complainant’s financial loss, arising from his dismissal and to the date of *250 the hearing of the appeal, the court awards the complainant compensation of €40,500. This amount takes account of the complainant’s contribution to his own dismissal arising from his lack of forthrightness about the true reason explaining his difficulty with the RSA.
The decision of the Adjudication Officer is varied accordingly.
The court so determines.
Richard J Bunyan v United Dominions Trust (Ireland) Ltd
1980 No. UD 66
Employment Appeals Tribunal
[1982] I.L.R.M. 404
(Mr Donal Hamilton, Chairman, Mr George Keenan and Mr Arthur Rice)
: The claimant commenced employment as marketing manager with the respondent in 1973. He reported directly to Mr Bernon, general manager as did other *405 managers including Mr McGovern and Mr Callan. (In this determination Mr Bernon is referred to variously as the chief executive and as managing director.)
In 1976, following reorganisation of the reporting structure, the claimant continued to report to Mr Bernon. However, Mr McGovern, Mr Callan and Mr Mooney reported to the claimant. The claimant became the general manager, marketing, and in this area or division he was the executive responsible.
There were other areas or divisions in the respondent company, Mr Church being in charge of banking; Mr Hickey was the chief accountant.
The respondents affairs prospered and in April, 1978, the claimant wrote to Mr Bernon indicating a view that he should be appointed to the board of the respondent. (This suggestion was made simultaneuosly by Messrs Church and Hickey and the claimant). The tribunal is satisfied that at this time the claimants work and contribution to the respondent was valued and that the personal relationships between him and the other executives were normal in a business context, i.e. they had no difficulties in working as a unit.
This satisfactory working relationship did not continue and appeared to deteriorate as between the claimant and Mr Bernon from September, 1978 and later as between the claimant and Messrs McGovern and Callan. Evidence was heard from many witnesses over several days and circa 144 documents or groups of documents were exhibited in evidence. We do not, therefore, intend or attempt to set out in whole or summary, the cases presented on behalf of the respondent or of the claimant. It is necessary, however, to refer to some aspects of the evidence, or the tribunals conclusions in the light of evidence, in order to understand the determination herein.
On 8 September 1978, the claimant had an appraisal interview with Mr Bernon, his superior an annual requirement. The tribunal heard evidence from Mr Bernon and the claimant concerning this interview. The claimant wrote a detailed memorandum on this interview on 9 September 1978 and same was furnished to the tribunal.
During the meeting of 8 September 1978, the claimant according to the evidence and as appeared from his memorandum of 9 September 1978, took issue with and blamed Mr Bernon for:
(i) Giving or intending to give the claimant a standard performance rating;
(ii) not supporting the claimant, Mr Church and Mr Hickey in their application to be made directors of the respondent;
(iii) wishing to dismiss Messrs McGovern, Callan and Mooney and instructing the claimant to sack them;
(iv) treating field personnel as second class citizens.
From the evidence it is not clear to the tribunal that the claimant was instructed to dismiss the executives, though we feel that there was mention by Mr Bernon of moving some executives. As an alternative to board membership the aspirants were appointed to a newly created management board. From this time, September, 1978, the claimant felt he had to keep notes and be extra careful and this, no doubt, affected his behaviour so that due to an increase in the volume of memoranda emanating from him and his strict procedural approach *406 at meetings others considered him to be somewhat mechanistic and legalistic.
On 18 September 1978, the claimant wrote a memorandum to Mr Bernon with copies to Mr Sandys, chairman of the board of directors, and Mr Bacon, alleging the sacking instructions and his (the claimants) objections to same and advising that he had joined a trade union (ASTMS).
The sacking allegation was leaked to the executives, Mr McGovern, Mr Callan and Mr Mooney and at a meeting attended by Mr Sandys, Mr Bernon and the claimant they were assured that there was no intention to dismiss them and no instructions had been given to anybody to dismiss them. The claimant did not contradict this assurance. We can conclude, from the evidence, that the claimant told Mr McGovern of the sacking instruction and ought not to have done so before exhausting all reasonable efforts to have the instruction, if given, withdrawn, or any misunderstanding clarified. The claimant acted imprudently in undermining the confidence of his subordinates in Mr Bernon before all avenues of clarification were exhausted. The trust and confidence of subordinates is a valuable asset but an extremely vulnerable one. It would not be in conflict with principle or integrity to verify or otherwise confirm such an important and fundamental instruction before telling any concerned subordinate of it. It is concluded from the evidence that this incident more than anything else upset the senior executives, Mr McGovern, Mr Callan and Mr Mooney and undermined their confidence and caused them confusion which the assurances of Mr Sandys and Mr Bernon, in the presence of the claimant, did not overcome. The situation caused them to be suspicious, firstly of Mr Bernon and then of the claimant. The isolation of the claimant within the workplace was thus increased.
On, or about, 1 June 1979, the management board was disbanded. The claimant received a written warning dated 8 June, 1979. The warning was issued because the claimant was allegedly (a) unduly legalistic and mechanistic (b) failing to fulfill Mr Bernons instructions to hold regular meetings. The letter warned that:
unless you discontinue this behaviour, which challenges and undermines the authority of your managing director, the company will have no option but to terminate your employment.
The claimants union decided to refer this matter to a Rights Commissioner and a Rights Commissioner was requested to deal with the case.
Following representations by the claimant and his union the warning was withdrawn but following a discussion with the claimant that same day, it was restored and the union was notified. The original warning of 8/6/1979 was withdrawn because the respondent accepted the view of the claimant and his union that the claimant had not been given the opportunity of knowing the allegations and so of making a defence in respect of same.
The union referred the matter of the reinstated warning to a second Rights Commissioner and the respondent agreed to the dispute being heard by such Rights Commissioner.
The union later sought the original Rights Commissioner and the respondent *407 objected in principle on the grounds that the claimant could not be so selective in nominating a Rights Commissioner. This matter was in the control of Mr Hayes-McCoy, the respondents personnel manager and following a board meeting he wrote to ASTMS on 26 October 1979, setting out the history of the reference of the dispute to the Rights Commissioners and we refer to his letter and quote portion of same as follows:
(The company) hold the view that a Rights Commissioners hearing is the most appropriate channel for resolving this dispute and would ask your Union to allow this case to be heard by another Rights Commissioner.
The company believes this matter should be disposed of at a very early date and, therefore, does not consider it appropriate to have it referred to the Labour Court.
The company proposes to hold a further interview with Mr Bunyan with a view to attempting to reconcile the differences between it and him, once and for all.
If a solution is not achieved by this interview, the company will have no alternative but to determine that the problems raised by Mr Bunyans persistent attitude must be resolved in another way in pursuance of the companys interests.
On November 5 ASTMS agreed to the third Rights Commissioner dealing with the dispute. It was agreed, therefore, that the warning dispute be dealt with at a Rights Commissioners hearing before an agreed commissioner.
There is no doubt but that the members of the board were aware, generally, since September 1978 of the differences which existed between the claimant and Mr Bernon and that the situation was a cause for serious and continuing concern. The board left it to Mr Sandys to reconcile the differences between the two senior executives and though he tried to do so, he failed, probably because he did not realise the depth of the breach between the claimant and the managing director. The claimant felt that he could not trust Mr Bernon and felt threatened by him. (He felt that Mr Bernon had wrongly denied the sacking instruction and he was clearly dissatisfied with the assessment interview).
The matter of the dispute which had been referred to the Rights Commissioners, was raised regularly at board meetings and the relevant extract from the minutes of the board meeting of 26/10/1979 is as follows:
(b) Staff Matters
(b) It was reported that Mr R. J. Bunyan had stipulated that he was only willing to go before a specific Rights Commissioner and that in the absence of this request being granted he would withdraw his application to go before the Rights Commissioners and opt to go before the Labour Court. It was agreed that Mr Bunyans request to go before a specific Rights Commissioner was unacceptable and it was inappropriate to have the matter referred to the Labour Court because of the inevitable delay which would occur. It was agreed that the matter should now be brought to a head in the near furure, and that the union be written to proposing that a further interview with Mr Bunyan be held.
The letter of 26/10/1979, already referred to, from Mr Hayes-McCoy to ASTMS, clearly was written in the light of the view of the board of directors.
At this time, the claimant was elected a member of the union house committee and this gave rise to concern as in a negotiation situation, the respondents *408 negotiator viz. the personnel manager, Mr Hayes-McCoy, would have a lesser status in the respondent company than the claimant. Mr Hayes-McCoy shared this problem with Mr Russell Thomas, personnel manager of UDT Ltd. and obtained his written advice which, in our view, was sensible and likely to remove that matter as a source af continuing friction.
At the end of October/early November, 1979, therefore:
(i) the board had expressed its up to date view of the need to resolve the matter and suggested a course of action which the personnel manager was in the process of implementing;
(ii) the selection of a Rights Commissioner to adjudicate on the warning dispute was agreed and;
(iii) Mr Russell Thomas had suggested a course likely to overcome expected problems of a practical nature arising out of the claimants membership of the union house committee.
Maybe the hearing by the Rights Commissioner would have opened up the problem and allowed the claimant and Mr Bernon to think again on that conversation of 8 September 1978 and particuarly the sacking aspect perhaps the claimant would have noted that from his own memorandum of 9 September 1978 it appears that it was he who raised the question of getting rid of the three executives and not Mr Bernon and maybe Mr Bernon would have conceded that he had spoken of moving the executives. We will never know because on 10 November 1979 the board resolved to dismiss the claimant that meeting was called at short notice. In considering this matter we ask ourselves:
(i) Who dismissed the claimant?
(ii) Why was it concluded that the claimant should be dismissed?
(iii) What information/facts supported the conclusion that the claimant be dismissed?
(i) Who dismissed the claimant?
The board at a meeting on 10/11/1979 passed a resolution terminating the claimants employment. Mr Bernon abstained from the vote but otherwise there was unanimity amongst those present and voting. It is clear that Mr Bernon, who had at the meeting recommended the termination of the claimants employment agreed with the decision and that he had abstained for reasons which could not reasonably be interpreted as disagreeing with the resolution. Mr Bernon was the only person present who, being entitled to vote, abstained. There was, therefore, unanimous support for the resolution.
The claimant had been appointed by the board to his original employment in 1973. The dismissal resolution is recorded in the minutes of the meeting of the board on 10/11/1979 as:
The chairman and the managing director to meet with Mr R. J. Bunyan on Monday 12 November 1979 at 2.30 p.m. and advise him of the boards decision to terminate his employment on the expiration of the appropriate notice and that he be paid his salary during the notice period but that he will not be required to work out his notice.
The decision was communicated to the claimant on 12 November 1979.
(ii) Why was it concluded that the claimant should be dismissed?
*409
In considering this question, we set out the minutes of the board meeting of 10/11/1979 in full.
MINUTES OF A MEETING OF THE BOARD OF DIRECTORS OF UNITED DOMINIONS TRUST (IRELAND) LTD HELD AT THE BURLINGTON HOTEL ON STAURDAY, 10 NOVEMBER 1979, AT 11.00 A.M.
PRESENT: Mr W. Sandys In the chair, Mr D. J. Bernon managing director, Mr G.P.S. Hogan director, Mr R. A. French director, Mr K. Flynn director, Mr A. Haslam alternate for Mr M. D. McGuane.
IN ATTENDANCE Mr R. J. Church company secretary.
The meeting was convened at short notice and all directors present agreed to accept short notice.
Apologies were received from Mr G. F. Bacon and Mr P. V. Doyle, directors, who, despite their absence, agreed to the holding of the meeting at short notice.
STAFF
The meeting reviewed in detail the problems created by Mr R. J. Bunyan his several interviews with the chairman, the issuing of a reprimand to him the matters arising from his appraisal by Mr D. J. Bernon his appeal to the Rights Commissioner and subsequent withdrawal of such appeal due apparently to his not being permitted to nominate the particular Commissioner to hear his case and his continuing undermining of the authority of the chief executive.
Mr Bunyan had not availed of several opportunities afforded him of reconciliation and the board decided that it no longer had confidence in his suitability and disposition to serve UDT satisfactorily and that in the interest of the bank and its responsibility to its depositors and staff, Mr Bunyans employment be terminated in accordance with the conditions contained in his letter of employment and the following resolution was passed:
It was resolved that:
The chairman and the managing director to meet with Mr R. J. Bunyan on Monday 12 November 1979, at 2.30 p.m. and advise him of the boards decision to terminate his employment on the expiration of the appropriate notice and that he be paid his salary during the notice period but that he will not be required to work out his notice.
PROPOSED BY: Mr R. A. French
SECONDED BY: Mr G. P. S. Hogan
The resolution was passed unanimously by all directors present with the exception of Mr D. J. Bernon who abstained from voting.
In order to minimise the effect on Mr Bunyans career, the board agreed that he be given an opportunity to resign forthwith at the meeting referred to herein on terms which would be agreed in due course.
A number of witnesses stated in evidence why they each supported the resolution. It is not surprising that in a case such as this, they would differ somewhat but it is clear that they supported the resolution.
(a) with the general awareness of the problems stemming from the appraisal and also from the warning and
(b) because of information given at the meeting and
(c) the fact that the managing director, Mr Bernon, recommended to them that the claimant be dismissed.
The board was told that the claimant at a chance meeting in New Ross, had used an expression to a junior staff member (a union house committee member) which they felt could only be interpreted as a further attempt to undermine the authority of the chief executive.
Although Mr Hayes-McCoy was present at the meeting, according to his own evidence, (his attendance was not recorded in the minutes), the preliminary discussion does not note that the problem regarding the choice of Rights Commissioner had been resolved We conclude from the absence of evidence that this matter was not reviewed in depth, if at all. The evidence told of the board being aware that three executives, Messrs Church, Callan and McGovern had submitted written complaints regarding the claimants treatment/behaviour towards them. Mr Blake, on behalf of the claimant expressed surprise and emphasised that the existence of these memoranda was not recorded in the minutes.
We are of the view that the minutes reflect the relative unimportance of all matters at that time, save the report of the claimants continuing undermining of Mr Bernons authority, which report, in our view, was the reason why the meeting was called at short notice. It is why the executives, Messrs Church, Callan and McGovern were asked to prepare their reports/complaints. It is the reason why Mr Bernon, by recommending the claimants dismissal, made it clear in practical terms that he was asking the board to decide between the claimant and himself.
We conclude, from the evidence, that the claimant was dismissed primarily because in the light of the history of the dispute known to the board and the boards knowing of the complaints of the three executives and their belief that at the discussion in New Ross (on 2 November 1979), the claimant had used words to a junior staff member of the respondent designed to continue his undermining of the authority of the managing director and in view of this, together with the recommendation of the managing director, the longlasting dispute had assumed proportions which could not be tolerated and which, if unresolved, would seriously undermine the effective management of the respondent company.
(iii) What information/facts supported the conclusion that the claimant be dismissed which did not exist at the last meeting of the Board on 26 October 1979?
On 6 November, 1979, Mr Bernon was in his office having a meeting with Mr Church, when Mr McGovern and Mr Callan interrupted and Mr Callan told of a report he had had from Mr Bohill, a junior staff employee in the Waterford office, of a conversation, he, Mr Bohill, had with the claimant in New Ross (later established to have taken place on 2 November, 1979).
In this conversation, the claimant is reported to have said to Mr Bohill that he was not worried about the prospect of his appraisal dispute coming up for discussion at a forthcoming union committee meeting as he had enough in writing to hang D. J. (Mr. Bernon).
We have no doubt but that Mr Bernon accepted the report as being a true account of the conversation and decided that it was a choice between the claimant and himself and proceeded to call the directors to a meeting on Saturday 10 November 1979 (it being the earliest date on which the Chairman, Mr Sandys would be available). He arranged for an informal meeting with some directors for Friday 9 November and asked for the reports from the executives, Messrs Church, McGovern and Callan, which he received, each dated 9/11/1979. *411 Mr Bernon also gave written notice to the claimant to attend a meeting at 2.30 p.m. on Monday 12 November 1979. It is clear from this message to the claimant that the managing director felt confident that the claimant would be dismissed in the light of the recent incident in New Ross coupled with the reports of the three executives. The text of the message to the claimant of 9 November, 1979 is as follows:
In view of the serious dispute that exists between you and the company, I require you to be present at a meeting on Monday 12 November 1979 at 2.30 p.m. to bring this important matter to an immediate conclusion.
You may, if you wish, be accompanied at this meeting by a representative of your union.
Neither the claimant nor his union was notified of the intended meeting of 10 November 1979, its purpose or the report of the Bohill conversation or of the existence of the reports of Messrs Church, Callan and McGovern.
Having heard the evidence of Mr Bohill and of the claimant, concerning the conversation at New Ross on 2 November 1979, we are of the opinion that the reporting to the board of what Mr Callan told Mr Bernon, that Mr Bohill had told him (Mr Callan), that the claimant had said to him was correct but that the account by Mr Bohill of the offending portion of the conversion was not, or at least could not be relied upon to be accurate and so reasonably sustain the view that the claimant had by that conversation undermined the authority of the chief executive. If this allegation had been reasonably investigated and the claimant been given an opportunity to comment on it and challenge it, then it is possible that the board would not have considered it to be an event which would represent a last straw interpretation or an event which would justify the abortion of the plan decided on at the board meeting of October 26 1979 and which was being implemented by the personnel manager, Mr Hayes-McCoy, but particularly would not justify a conclusion that the claimant, by this conversation had shown that he was undermining the authority of the Chief Executive, Mr Bernon.
The Bohill conversation assumed major importance and clearly became the basis of the conclusion that the claimant was continuing to undermine the authority of the chief executive.
The reports/complaints of the senior executives, Messrs McGovern, Church and Callan were not apparently considered in any detail but were taken by the board to show that the claimant had ceased to have a normal working relationship with Mr Church and with the claimants subordinates Messrs McGovern and Callan.
The tribunal, by majority, (Mr Rice dissenting), is of the opinion that had the board or its representatives had the benefit of hearing the claimant on those matters, i.e. the Bohill conversation and the complaints of the three executives it might not have felt:
(a) that the Bohill conversation as reported could be relied upon to sustain the conclusion reached viz. that it demonstrated that the claimant was deliberately undermining the authority of Mr Bernon, or,
*412
(b) that the reports/complaints could lead to the view that senior staff members were in danger of being disaffected due to the unreasonable actions of the claimant. Analysis might have shown that in many respects the matters complained of, were the results of the claimant carrying out his duties.
The tribunal, by majority, hold the view that the dismissal of the claimant being made on foot of new information conflicted with the requirements of natural justice, viz. that the person should know the nature of the accusation against him; that he should be given an opportinity to state his case; and that the domestic tribunal (the board of directors) should act in good faith.
The tribunal, by majority, having heard the evidence, which an enquiry might have heard, cannot say that had the aforementioned requirements of natural justice been complied with, the decision would have been the same, or would probably have been the same and so we are unable to say that the denial of natural justice made no difference. We are not aware, from the evidence, of any matter which dictated that the decision had to be made in such haste, that the board could not have, if it desired, deferred the decision until the allegations were investigated with notice of same to the claimant.
We have no doubt that individually the members of the board acted in good faith but we feel that collectively the board:
(1) ignored or failed to give full account to the heresay nature of Bohills report of the claimants remarks in New Ross;
(2) did not consider in any depth the contents of the reports/complaints of the three executives but accepted generally that they should be considered as disadvantageous to the claimant;
(3) the board was not protective of its duty and privilege to decide on action in the light of the new evidence, and appears substantially to have delegated that decision to Mr Bernon by giving undue weight to the recommendation that the claimant be dismissed as against the value of the new evidence grounding it. Mr Sarsfield Hogan, director, asked in a memo prior to the meeting of 10/11/1979: In other respects how has the situation changed since board meeting of 26 October? He told the tribunal that in addition to the Bohill conversation the situation had changed because Mr Bernon recommended dismissal.
(4) The board failed to adopt the course which a reasonable employer in that situation, in that line of business would have adopted viz. to withhold a decision until the claimant had been told of the allegations and been afforded a reasonable opportunity to reply to same. Such a reasonable employer would in evaluating the recommendation of Mr Bernon, give due recognition to the fact that he was a substantive party to the dispute which had been referred to the Rights Commissioner.
Counsel for the respondent submitted, inter alia:
If there are substantial grounds for a dismissal then it is not an unfair dismissal. In the present case the applicant could have been in no doubt as to the action which the company was going to take and was in no doubt but that the company would dismiss him. It is submitted that the procedures taken by the company in leading to the dismissal were fair and reasonable. It is further submitted that in any event it is not the procedures leading to a dismissal which govern whether or not the dismissal is an unfair dismissal but the grounds upon which this dismissal is determined. The procedures leading to a dismissal are relevant only insofar as they may show that they were not, in fact, substantial grounds for the dismissal either because there was no *413 real belief in the facts or because there was a realisation on the part of the employer that the facts did not warrant dismissal. Neither of these circumstances exists in the present case.
The tribunal recognises that it may be argued that fair procedures are necessary or of value only to demonstrate that the employer acted fairly in investigating and gathering the information upon which he made his decision. It is clear that if belief in the culpability of the employee is necessary to justify the dismissal then it is equally necessary that such belief be reasonably held. Fair procedures therefore help to lead an employer to as full possession of information as is reasonably possible and he will then proceed to a decision. If an employer after neglecting fair procedures forms a belief then the mere fact that he holds the belief and has made a decision to dismiss which, if such belief was reasonably held, would have justified dismissal, will not prevent a finding of unfairness where the tribunal considers that an employer who had observed the rules of natural justice in gathering the information would or could have come to a different conclusion and so might not have held such belief at all.
The alleged culpability of the claimant is related in the minutes of the board meeting of 10/11/1979, which referred to the claimants (his) continuing undermining of the authority of the chief executive.
It may also be argued that in relation to its functions under the Unfair Dismissals Act, 1977, the tribunal should consider that a substantive matter should override a procedural breach of natural justice. This view has been applied by the tribunal in cases where it was satisfied that failure to comply with the rules of natural justice made no differences to the decision to dismiss. In such cases the tribunal was satisfied that no injustice was caused by such failure.
In this case, the tribunal holds the view that absence of an opportunity to the claimant to defend himself could have made a difference to the decision reached.
The procedural aspects of Natural Justice as applied by the Supreme Court in Glover v BLN Ltd [1973] IR 418 et seq. are clearly of major importance.
The tribunal endorses and applies the following view quoted from NC Watling Co Ltd v Richardson [1978] IRLR 225 EAT (ICR 1049) the fairness or unfairness of dismissal is to be judged by the objective standard of the way in which a reasonable employer in those circumstances in that line of business, would have behaved. The tribunal therefore does not decide the question whether or not, on the evidence before it, the employee should be dismissed. The decision to dismiss has been taken, and our function is to test such decision against what we consider the reasonable employer would have done and/or concluded.
As stated we feel that compliance with the requirements of natural justice could have resulted in the decision to dismiss the claimant not being taken. Accordingly, we find that the denial of natural justice was fundamental and renders this dismissal unfair in the spirit and context of the Unfair Dismissals Act, 1977, and we so determine.
The tribunal considers that having regard to all the circumstances of the case that the most appropriate remedy lies in compensation.
*414
ANNUAL REMUNERATION
Having received representations from the parties, we measure the claimants gross annual remuneration as follows:
1.
Salary
15,826.00
2.
Annual Bonus
500.00
3.
Respondents annual contribution to Pension Scheme in relation to the claimant
3,000.00
4.
Annual value to claimant of private use of car provided by respondent
2,000.00
5.
Value of lunches and subscription measured at
200.00
6.
Employees PRSI and state pension contribution 8.25% of upper limit of 8,500.00
701.00
TOTAL ANNUAL REMUNERATION
22,227.00
We disallowed, wholly, the claimants claim that he was entitled to have considered as part of his remuneration:
(a) House Mortgage subsidy and
(b) personal Loans subsidy.
The claimant enjoyed a rate of interest on borrowings less than that which was generally available, this being the normal practice in the respondent company and, we understand, in banking institutions generally. He undoubtedly received preferred rates and so gained a benefit because he had borrowings. If he had no borrowings he would have had no such benefit. It is a discretionery matter for the respondent as to whether any loan would be made to the claimant. It is therefore the exercise of the discretion in his favour which combines with normal practice to give him the benefit of the reduced interest rate, not the mere fact of his employment. The benefit is not a reward for his services but is a consequence of the exercise of a discretion in his favour.
The claimant is an employee since June 1981 of a limited company, of which he is a shareholder, at an annual salary of 10,000. We measure a loss differential per annum of 8,000 and assume that such differential will be maintained into the immediate future.
We consider, on the evidence, that the claimant took all reasonable steps to mitigate his loss, save that he failed to apply for unemployment benefit for two months. We consider, having regard to the evidence, that the claimants decision to start his own business and to devote his time to the advancement of this aim, should not be considered as a failure to mitigate his loss even though this course did not occupy all his time. Neither do we consider that the salary, which he enjoys from his new employer, is so low as to constitute failure to mitigate loss.
In measuring loss, the tribunal is conscious of the fact that the claimant enjoyed the use of the respondents car for a considerable period after his dismissal.
LOSS PENSION
The claimant enjoyed the benefit of a non-contributory pension scheme with *415 the respondent. The claimant does not have a similar benefit in his present employment. Having regard to the claimants age and the evidence and submissions in relation to his pension loss, generally, and doing the best we can, we assess the claimants loss in relation to his pension at 44,800.00. This figure has been measured after applying a reducing factor to provide for the likelihood of the claimant leaving the employment pension scheme in non-benefit circumstances and also as a discount for immediate payment.
LOSS PENSION
44,800.00
Loss to November, 1981
We measure this loss as follows:
(i) March 80 to June 81 Nett Remuneration
measured at 17,000.00 per annum 15 months
1416.00 per month
21,240.00
less Social Welfare benefits 334.00
per month
(a) unclaimed 2 months
668.00
(b) received 13 months
4,344.00
5,012.00
16,228.00
(ii) July 81 November 81
5 months 8,000.00 per annum
3,330.00
Sub Total loss to end November 81
19,558.00
19,558.00
LOSS FUTURE (excluding pension)
We estimate that the loss differential will continue into the future and we measure such loss over a period of five years and allow 5 8,000.00
40,000.00
LOSS LOSS OR DIMINUTION OF RIGHTS UNDER PROTECTIVE LEGISLATION
(in relation to future employment until minimum service reached.)
(a) Unfair Dismissals Act, 1977
Nil
(b) Minimum Notice and Terms of Employment Act, 1973 Nil
(c) Redundancy Payments Acts We measure this compensation 33% of accrued rights
160.00
SUB-TOTAL
160.00
160.00
TOTAL ACTUAL LOSS
104,518.00
CONTRIBUTION BY CLAIMANT TO HIS LOSS UNDER S. 7 (2)(b)
The tribunal sees substantial contribution by the claimant to the loss sustained by him which by majority we measure at 45%.
This percentage takes into account the neglect of the claimant to verify, or otherwise clarify, the references made by Mr Bernon in September, 1978 to moving or sacking. It takes into account his disclosure of his understanding that the executives were to be sacked which disclosure Mr Sandys considered to be a serious breach of confidence and which, when denied, contributed to the strained atmosphere amongst the top executives. We do not feel it necessary *416 to detail, further, the matters which influenced our assessment. (Mr Rice holds the view that the claimants contribution is greater than that measured by the majority).
We apply the contribution factor as follows:
Total Actual Loss
104,518.00
Less 45%
47,033.00
Nett Loss
57,485.00
Statutory Maximum (2 22,227.00)
44,454.00
TOTAL COMPENSATORY AWARD
44,454.00
We determine that the claimant was unfairly dismissed and we award him compensation for loss sustained which sum, adjusted to the maximum permitted by s. 7 (1)(c) of the Unfair Dismissals Act, 1977, we measure at 44,454.00 and we are satisfied that such award conforms with and reflects the spirit and concept of justice and equity.
Mr Rice (dissenting)
The tribunal has spent many hours in considering this very difficult case. It has perused in detail the 100 plus documents submitted to it and has reviewed the full evidence provided over the days of the hearing.
I find myself unable to subscribe to the majority opinion of my colleagues for the following reasons:
It is evident that things were not as they should have been in this company for a long time and particularly since September, 1978 up to the date of dismissal.
Events which led to difficulties included:
(1) The non nomination of the applicant to the board of directors.
(2) The proposal to move/change the duties of various executives.
(3) The dissatisfaction caused as a result of the appraisal interviews.
(4) The general attitude of the applicant originally in his attitude to the chief executive and latterly towards his subordinates.
(5) The general atmosphere of unease and the rumours which appeared to be generally circulating about disagreements amongst senior executives in the company.
(6) The loss of trust between the applicant and his chief executive and his immediate senior staff, and the applicants admitted loss of trust.
(7) The difficulties about the management board, the delay in its being implemented and subsequent difficulties over the minutes.
(8) The efforts of the board, through its chairman, to reconcile the differences.
(9) The disagreements over what procedure to use to try and resolve the problems.
(10) The disclosure of an interview in New Ross, together with the production of letters written to the chief executive by three senior managers.
I am of the opinion that the board were perfectly entitled to exercise their discretion in not promoting the executives to the board, even though they appear to have contributed greatly to the prosperity of the company. I am equally satisfied that the chief executive was not happy with the performance of some of his staff, and was certainly anxious (as was his prerogative) to make changes. *417 There is no supportive evidence given to the tribunal that the chief executive ever actually requested the dismissal of any of the people concerned.
The appraisal interview is designed to help those being appraised to improve their performance. This can only be done by pointing out weaknesses. The chief executive was within his rights in so doing, but the applicant did not take kindly to any criticism and resented the implications.
A culmination of the above gradually led to the applicant becoming out of step with most of his colleagues.
I am convinced that at all relevant times the board through the good offices of the chairman were anxious to resolve the problems which were causing so much dissension.
In my opinion, the board, in the interests of the well being of the company had very little alternative but to take the action it did, but at the same time I agree with my colleagues that the manner in which they did it, left much to be desired in that there is no corroboration of the Bohill disclosures, nor was there any opportunity given to the applicant to offer a defense about this disclosure which was obviously the straw that broke the camels back!
This failure in my opinion does not convert an otherwise fair dismissal into an unfair dismissal .
I find that the applicant was no longer a suitable person to carry out the duties which he was employed to. I have come to the conclusion on the applicants own evidence that his conduct was substantially to blame for his dismissal. He raised and clashed on matters which became unnecessarily blown up and acrimonious by his lack of finesse in dealing with them. He also differed seriously from the senior management on major and serious matters of policy.
I got the clear impression from the evidence that the board of directors found the applicants conduct so aggravating and unacceptable that they felt that they had had enough and wished to see the end of the applicant in the firm.
At this level it is essential that a top managers activities influence the behaviour of his staff, as individuals and groups to achieve the desired goals.
The development of a healthy team spirit depends to a great extent on the attitude and approach of the manager. The top manager at this level has a vital role to play in ensuring the well being and success of the operation. It is important that all top management should work together in harmony under the chief executive. It is Mr Bunyans failure to be a member of that team that influences me in the belief that he was not as leader of the orchestra able to accept the conductors baton and therefore the performance of the orchestra was being seriously affected.
I am also of the opinion that the respondent has made a good case that the dismissal and any resultant financial loss to the applicant was substantially attributable to his own conduct and therefore that such financial loss should be reduced by a percentage of 90%.
Tina Casey v Dunnes Stores (George’s St) t/a Dunnes Stores
UD 706/2000
Employment Appeals Tribunal
1 August 2002
[2003] 14 E.L.R. 313
(
Respondent’s Case
The store manager of the shop in which the claimant worked in his sworn *315 evidence told the Tribunal that he attended a number of disciplinary meetings with the claimant. He attended the meeting on June 9 at which the claimant was dismissed. At the meeting of June 2 he put it to the claimant that there was only two bank holiday Mondays left in the year and that she did not have to work them. The claimant refused this offer.
In cross-examination he said that he was not aware that the claimant had an arrangement to work Thursday to Sunday and not on Mondays. In answer to questions from the Tribunal he stated that it was he and the personnel/staff manager who took the decision to dismiss the claimant due to her refusal to work bank holidays.
The staff manager of this branch of the store told the Tribunal that a trainee manager approached her with the information that two female employees including the claimant would not be able to work a forthcoming bank holiday Monday for which they had been rostered. The store manager phoned the claimant and later met her together with the other employee on June 1, 2000. The witness advised them that if they needed Mondays off they should have asked for this before now as rosters were normally prepared well in advance. The claimant said that it was not just this bank holiday Monday but all other ones that she did not want to work. The claimant stated the times she was available for employment which did not include Mondays. The staff manager pointed out to them that they already had worked on bank holidays prior to this meeting and reminded them that the position about working bank holidays and Sundays had been singled out in the company handbook. She told them that what they were doing was refusing to work as per their contract of employment.
The claimant and her fellow employee replied that they never said that they were available for work on Mondays as it did not suit their families as they needed to spend bank holidays with their children. Their circumstances had changed since working previous bank holidays.
The staff manager advised both employees that there would be grave consequences in refusing to fulfil their terms of employment and suggested that they go home and ‘sleep on it’. She told them that they were not being asked to do anything different to any other employee and asked them to reconsider their position regarding Monday work. She also asked them to read the handbook again and revert to it if they had any problems. A further meeting was arranged for the next day.
This meeting proved to be fruitless as the employees maintained their attitude towards working hours. The staff manager and a senior manager met the two employees later and conveyed to them their disappointment that their position had not changed. The witness warned these employees that if they failed to report for work on the following Monday she would have no option but to terminate their employment.
The claimant did not show up for work that Monday and on June 8 when *316 she reported for work another meeting took place. At that meeting the claimant reiterated her position and refuse to consider a compromise. As a consequence, she was suspended without pay pending another meeting the next day. The witness did not attend that meeting but confirmed that as a result of it, the claimant was dismissed. The witness acknowledged that the claimant was generally a reliable worker.
The staff manager had no recollection of interviewing the claimant and could not produce any notes relating to this interview. She had no memory of the claimant not wanting to work on Mondays but accepted that a local arrangement could have been made with a line manager over rosters. This witness added that she would have not employed people who refused to work on Mondays.
Claimant’s case
The claimant in her sworn evidence to the tribunal said that she applied for the position with the respondent and subsequently attended for interview. During the course of the interview the claimant indicated her preferred working hours and explicitly asked to be exempt from work on Mondays, including bank holidays. The claimant got the impression at the interview that this arrangement was fine but accepted that up to the time of the disagreement over rosters it was possible that she had already worked at least two Mondays. She was expected to work Thursday to Sunday. She stated that she did not receive a contract of employment. She received a staff handbook, which she choose not to sign. Her job had to fit around her family life in order that she could bring her children to school. This meant that she could not work Mondays. She did work some bank holiday Mondays but that was when her husband was able to mind her children. She could only recall working two bank holiday Mondays. She became aware of a roster with her name on it for a bank holiday. She approached the deli department manager and told her, that ‘she could not and would not work bank holiday Mondays’. The deli department manager told the staff manager who, in turn, said to the claimant ‘how dare you tell us what hours you want to work’ and then asked her to consider her position. A meeting was arranged for June 2 at which she reiterated her position of only being able to work from Thursday to Sunday and not on Mondays. The claimant did not attend for work on the following bank holiday Monday. She told the tribunal that she had informed the staff manager of this. On June 8 when she reported for work she was asked for an explanation as to why she had not reported for work on the Monday. Following this she was suspended on full pay pending a disciplinary meeting. At the meeting the claimant was told that she did not have to work bank holidays for the rest of the year but not on an ongoing basis. She felt that she could not concede this issue.
In cross-examination it was put to the claimant that she was aware from her *317 interview and the staff handbook that she was expected to work bank holiday Mondays. It was also put to her that she had not got a problem with this at the start. It was a change in her family circumstances that lead her to take this stance. The claimant denied all of this. It was also put to her that the staff manager told her that if she did not attend for work on the Monday she would face dismissal. The claimant accepted this.
Determination
The evidence, to the extent of which it was placed before the Tribunal, has been recounted below in sufficient detail as to render it unnecessary to restate the same within the determination. The Tribunal was unable to reach a unanimous decision and consequently a majority decision was reached in dismissing the claimant’s case on the grounds that she had failed to prove her case. The respondent company had satisfied the Tribunal that the dismissal was not unfair having regard to the circumstances of the case. The issues between the parties, as seen by the Tribunal, were in no small part dictated by the standard and quality of evidence.
The phrase ‘burden of proof’ is rarely articulated within the proceedings before the Employment Appeals Tribunal. A reason for this, if indeed it be a reason, is that the Tribunal is afforded a very wide ambit of flexibility in accepting evidence. This is, and was, because of the informality originally dictated by the fact that the parties before the Tribunal were not represented by persons qualified in trial advocacy. This is becoming less the norm in recent years and the flexibility in relation to the admissibility and accepting of evidence that would not otherwise be allowed in a court may be questionable.
In relation to the formalities of the hearing of an appeal the Tribunal is obliged to observe the rules as laid down in the statutory instrument entitled Redundancy (Redundancy Appeals Tribunal) Regulations 1968 (SI 1968/24), hereinafter referred to as the ‘Instrument’. Articles 13 to 16, in relation to the procedures to be adopted at a hearing, provide:
13. A party to an appeal heard by the Tribunal may—
(a) make an opening statement,
(b) call witnesses,
(c) cross-examine any witnesses called by any other party,
(d) give evidence on his own behalf, and
(e) address the tribunal at the close of the evidence.
14. The Tribunal may postpone or adjourn the hearing of an appeal from time to time.
15. The Tribunal may admit any duly authenticated written statement as prima facie evidence of any fact whenever it thinks it just and proper so to do.
16. If, after notice of a hearing has been duly given, any of the parties fails to appear at the hearing, the Tribunal may determine the question under appeal or may adjourn the hearing to a later date: provided that before determining the question under appeal the Tribunal shall consider all the evidence before it at the time of the hearing.
‘Provided that before determining the question under appeal the Tribunal shall consider all the evidence before it at the time of the hearing’ is the most important rule to be observed, it ensures the precept of impartiality.
The phrase ‘burden of proof’ is used to describe the duty which lies on one or other of the parties either to establish a case or to establish the facts upon a particular issue. The phrase ‘standard of proof’ is used to describe the degree to which the proof must be established.
What is evidence in the context of an appeal before the Tribunal? It is no different to that which is placed before any legal forum. Evidence is that which tends to prove that which may be disputed. Essentially, it is that which makes clear or ascertains the truth of a fact on point in issue or dispute. Evidential rules are observed for the benefit of all parties to an appeal before the Tribunal, including the members of the Tribunal, with the object of providing consistency in the handling and processes of the hearing and to achieve confidence in the administration of justice within the Employment Appeals Tribunal.
Evidence may take the form of oral testimony, documentary evidence or the factual context presented by the case. In the main evidence is either written or oral. Irrespective of the nature of the evidence one must adduce sufficient evidence so that the Tribunal may have an opportunity of assessing whether such evidence is convincing or persuasive as to admit the proof of that which is sought to be achieved pursuant to Article 16 of the Instrument. If one does not come up to proof, either as regards the production of actual concrete evidence or as to testifying the veracity of certain matters, then they must, save in the most exceptional circumstances, be dismissed from the consideration of theTribunal, as to do otherwise would be to arbitrarily find in favour of an issue in the absence of sufficient proof
Phipson on Evidence (15th ed., 2000) at para. 4-02 states that:
The persuasive burden has been referred to as ‘the legal burden’, ‘the probative burden’, ‘the ultimate burden’, ‘the burden of proof on the pleadings’ or ‘the risk of non-persuasion.’
The persuasive burden is the obligation imposed on a party by a rule of law to prove (or disprove, as the case may be) a fact in issue to the requisite standard of proof. The Unfair Dismissals Acts 1977 to 1993 provide that every dismissal of an employee will be presented to have been unfair unless the em *319 ployer can show substantial grounds justifying the dismissal, save to those expressly stated, e.g. trade union membership. Accordingly, a claimant must prove that a ‘dismissal’ took place before the fairness or otherwise is assessed. In the instant matter the respondent accepts that a dismissal took place by virtue of their letter dated June 26, 2000, namely, ‘I am writing to confirm your dismissal from the company’s employment …’ It is up to the respondent to prove the fairness of the dismissal. A party which fails to discharge a persuasive burden placed upon him to the requisite standard of proof will lose on the issue in question.
The claimant’s case was essentially that she had an oral agreement with the respondent company that she did not have to work on certain days and if the claimant satisfied the tribunal of this, she was entitled to the benefit of such an agreement and if the respondent company was to unilaterally alter the terms and conditions of the employment relationship then the claimant would succeed and the respondent would be unable to justify the dismissal. Accordingly, the burden of proving such an agreement rests upon the claimant.
It is rare for the contract of employment to be merely an oral agreement and indeed both employee and employer insist, and rightly so, that it be reduced to written terms. In fact, the spirit of the Terms of Employment Act 1994 has as its object the ambition that all contracts of employment will be in written format and thus add a sense of certainty and consistency that heretofore fuelled litigation as each party was forced to look for judicial or quasi-judicial determinations and interpretations in relation to express or implied terms in a contract of employment which was concluded by word of mouth.
Every employee works under a contract of employment, whether or not a document physically exists which records the terms and conditions of employment, and this contract is the binding agreement that creates the employment relationship. Blayney J in O’Coindealbhain v Mooney [1990] IR 422, emphasised that:
Where the agreement creating the relationship between the parties is expressed in writing … the entire agreement between the parties is to be found in the writing, so it is the unique source of their relationship: it follows that it is from its terms alone that the nature of the relationship can be determined.
Sir Nicolas Browne-Wilkinson VC in Imperial Group Trust v Imperial Ltd [1991] 1 WLR 589 at 597, stressed that in every contract of employment there is an implied term:
… that the employers will not, without reasonable and proper cause, conduct themselves in a manner calculated or likely to destroy or seriously *320 damage the relationship of confidence and trust between employer and employee …
Sir Nicolas noted that this train of thought had been adopted in Woods v WM Car Services [1981] ICR 666 at 670 and approved by the Court of Appeal in Lewis v Motorworld Garages Ltd [1986] ICR 157. He went on to articulate that he:
… will call this implied term ‘the implied obligation of good faith.’ In my judgment, that obligation of an employer applies … to the rights and powers of an employer …
Lord Bridge of Harwich in Scally v Southern Health Board [1992] 1 AC 294 at 307, stated that:
… I take the view that it is not merely reasonable, but necessary, in the circumstances postulated, to imply an obligation on the employer to take reasonable steps to bring the term of the contract in question to the employee’s attention, so that he may be in a position to enjoy its benefit …
Likewise, if the employer is unaware of the existence of a term the claimant ought to bring it to the attention of the employer. This, in the instant case, the claimant did not do. In fact, the novelty of this term and its alleged existence, came about subsequent to initial meetings between the parties. At meetings between the parties on June 1, 2 and 9, 2000, the claimant never stated that such an agreement existed. Blayney J in O’Cearchaill v Telecom Eireann [1994] ELR 54, stated that:
… conditions of service are conditions which one would expect to find in a contract of employment between employer and employee. Any terms which it would be normal to include in such a contract would be entitled to be so described and in considering what these terms might be, what has to be borne in mind is the nature of the contract of employment — it is a contract between an employer and a single employee. Each employee has an individual contract, so the conditions of service would have to be appropriate to such a contract.
Accordingly, if a term is agreed and if such a term departs from the normal standard contract then this should be reduced to writing. There is no proof whatsoever, other than the assertions of the claimant that such an agreement exists. There is an onus on the claimant to demonstrate to the satisfaction of the Tribunal that such a term as claimed exists and that such a term was agreed *321 between the parties. The Tribunal is guided by its experience as to when this onus has been discharged and they are not controlled or restricted by the strict limits imposed, for example by the onus of proof in criminal courts and/or civil courts, but, rather are guided by the evidence presented and after hearing both sides if satisfied on the balance of probabilities that such a term was agreed they will go on to assess whether or not the onus on the employer to justify the dismissal has been discharged.
He who asserts must prove and the claimant who desires the Tribunal to hold that a dismissal is unfair must prove that a dismissal took place and that it was the respondent who dismissed her and such proof must be to the satisfaction of the Tribunal; this is a matter of fairness and commonsense. A claimant can dismiss him or herself: see Gannon v Firth [1976] IRLR 415. To prove or disprove a fact in issue one needs to advance evidence to support or deny that fact. Henchy J in Hanrahan v Merck Sharp and Dohme [1989] ILRM 629 stated:
The ordinary rule is that a person who alleges a particular tort must, in order to succeed, prove (save where there are admissions) all the necessary ingredients of that tort and it is not for the defendant to disprove anything.
In Constantine Line v. Imperial Smelting Corporation [1942] AC 154 at 174, Lord Maugham stressed that:
The burden of proof in any particular case depends on the circumstances in which the claim arises. In general the rule which applies is ei qui affirmat non ei qui negat incumbit probation : proof rests on he who affirms not he who denies. It is an ancient rule founded on considerations of good sense and should not be departed from without strong reasons.
In Anheuser-Busch Inc. v Controller of Patents [1996] 2 IR 242 at 246, Costello P stated in relation to the charge of non-use of a trade mark, that:
There can be no hard and fast rule as to what is required by way of evidence to establish non-use. I am satisfied on the authorities that in the ordinary case detailed particulars of evidence to support a case of non-use should be given. In the ordinary case it is not sufficient for the declarant to swear a bald statement as to non-use but evidence should be given as to what steps were taken to establish this, what inquiries were made, by whom they were made and to whom they were made. But there is no hard and fast ride that an applicant who fails so to do will have the case dismissed as every case must depend on its own facts.
*322 So too at a hearing before this Tribunal. It is not acceptable that a claimant should succeed on the issue of whether or not a dismissal has occurred in the manner as alleged based solely on the swearing of bald statement that that is what has happened. Likewise as to the existence of an agreement.
What is a dismissal? The definition is found in section 1 of the Unfair Dismissals Act 1977, which provides that a ‘dismissal’, in relation to an employee, means—
(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,
(b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer, or
(c) the expiration of a contract of employment for a fixed term without its being renewed under the same contract or, in the case of a contract for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment), the cesser of the purpose.
As has been stated, before examining the merits and circumstances surrounding a claim of unfair dismissal, the claimant must have been dismissed by the respondent. Regrettably, the definition in its statutory format does little to indicate the precise meaning of what a ‘dismissal’ is and how it can be interpreted. One of the tests by which we can determine whether we have arrived at an essential definition is to see whether we can convert the proposition that is, interchange the subject and predicate terms without destroying the truth of the proposition. In relation to the 1977 Act this is impossible.
In Josephine Browne’s book entitled The Juridification of the Employment Relationship (Avebury, 1994) an unfair charge was made against the Employment Appeals Tribunal when she stated that (at p.42):
To date the Tribunal has not been faced with complex legal arguments regarding the definition of dismissal. By avoiding dealing with complex legal issues the Tribunal is negligent in its adjudication role and furthermore, since representation at the Tribunal has been ‘hijacked’ by the legal profession …
*323 First, the Tribunal does not dictate the legal arguments to be made, that is within the remit of the parties before it, and secondly, it does not shy away from determining issues that have been placed before it, nor does it avoid or sidestep issues to be dealt with. ‘Dismissal’ appears to be a word with little difficulty attached to its meaning but in the matrix of employment law its definitive character is less than straightforward. In the instant case, the Tribunal must deal with complex legal principles that surround the definition of ‘dismissal’ in order to do justice to the respective parties to this appeal, and the Tribunal stresses that same were not laid before it but rather, through its own efforts it has confronted the problem.
For a dismissal to occur an employment contract must be deliberately, purposefully and knowingly terminated by either the employer or the employee or alternatively, the contract of employment must expire of itself or for some reason, whether or not that reason is fair, proper, reasonable and/or just. Termination is understood to mean ‘coming to an end’ and this import should be communicated to either party, directly or indirectly, or must be understood by virtue of the nature and extent of the circumstances of the case, or reasonably inferred therefrom. In employment law contracts a repudiatory breach does not of itself terminate the contract. In Rigby v Ferodo Ltd [1988] ICR 29, the House of Lords found that an employer had committed a repudiatory breach by imposing a wagecut. The employee nevertheless continued to work and it was held that the contract had not been terminated by the employer’s unaccepted repudiation.
For the purposes of simplicity and brevity, therefore, a dismissal is some act brought about by one party contrary to the wishes of the other party which renders the contract of employment to cease to exist and all the duties and obligations thereunder are no longer binding and as such the employment relationship has plainly come to an end.
In the instant case the issue between the party is not a complicated one. The claimant alleges that her contract of employment which was agreed between herself and the respondent company contained a term which did not oblige her to work on certain days, as she states in her Appeal Form (T1-A):
… the company wanted me to work on bank holidays, despite me stating at my interview that I was not available to work then. I took the job agreeing to work Thursdays, Fridays, Saturdays and Sundays only, not Mondays. The company accepted this position at the time but changed their minds at a later date.
There is no evidence whatsoever to support this proposition, other than the assertions of the claimant. The company has no records of the initial interview at which it is alleged that this term of the contract was agreed. The company *324 did not furnish a detailed statement of the terms and conditions of employment and if same had been furnished it would have greatly assisted the Tribunal in reaching its decision. That being the case the Tribunal must reach its determination on the available evidence as presented. The respondent company has placed much reliance upon the fact, that at the induction course the claimant had made a number of alterations to the handbook of employment furnished to her and as she did not amend the sections appearing on page 10 and 11, dealing with public holidays, she could not say that the same did not apply to her. This is an incorrect assumption for very obvious reasons.
The pattern of work in relation to the roster, clearly indicates that the claimant in the past had not been generally rostered for work on the days in question. This is not evidence that a term existed which excused the claimant from working on those days; it simply suggests that she did not work on those days. It is a remarkable pattern and the Tribunal has not been told if any other employee would exhibit such a pattern. Furthermore, some nine months went by before the claimant encountered any difficulty with her understanding of the terms of her employment. Notwithstanding the very extraordinary coincidences as exhibited by the factual circumstances surrounding the case they are still indefinite and inconclusive in nature. Although the coincidences taken nakedly and alone, namely, an unbroken period of non-rostering together with the pattern of rostering, without any collateral evidence, would in principle be inconclusive, yet if coupled with circumstances supporting the contention it might afford strong and pregnant evidence for the consideration of the Tribunal that such a term, as alleged, did indeed exist. In like manner it would be difficult to resist the inference of the existence of such a term if others had agreed similar terms with the respondent company.
At the initial meeting, June 1, 2000, the claimant never stated that a term of her employment excused her from working on public holidays but had merely said her circumstances had changed. At a subsequent meeting, June 9, 2001, the respondent stressed that only two bank holidays were left that year and that if the claimant put in a request for these days off the same would be considered. The respondent company recognised that the claimant was a very good worker, in fact, they accepted that she was responsible for the establishment and success of the ‘hot food bar’ and that she was a key-individual. The respondent company said that they ‘wished that there would be some way of reaching a compromise and he did not want to see Tina go. Tina stated that she would not be changing her mind.’
Now, it was accepted by both the claimant and the respondent that if such an arrangement as alleged had been entered into it would have been peculiar to those normally appertaining to the employment contract. The respondent company is one of the largest supermarketeers in the Irish Republic and, it was submitted by the claimant’s representative that there is an onus on them to *325 record accurately all the terms agreed and if they failed to do so then the assertions of the claimant must be accepted without contradiction. The Tribunal does not believe that to be the proper, fair, and just assessment of mere assertions. Assertions can in the most exceptional of circumstances rank higher to opinions but can never supplant evidence nor be assigned the quality of evidence. The normal standard of proof in civil proceedings, which include matters before the Employment Appeals Tribunal, is proof on the balance of probabilities. It is fundamental to that standard that it involves weighing the evidence to see if the required standard has been achieved. If it has not, the party bearing the persuasive burden loses, however little evidence his opponent has adduced. In this regard, there must exist evidence which when placed upon the respective scales is capable of assessment and measurement. The weighing is the act of perceiving the orientation of the scales in favour of an issue or dispute.
In the U.K. the Employment Rights Act 1996, section 98(4)(b), which replaces earlier legislation, is concerned with the determination of the question whether or not the dismissal of an employee was unfair. The employer must first show a proper reason, and then the question of fairness shall:
… be determined in accordance with equity and the substantial merits of the case.
Cross and Tapper on Evidence (9th ed., 1999) state (at p. 127) that:
The effect of this change is that the only standard against which evidence can be weighed is that adduced by the opponent, in other words, if neither party bears the persuasive burden, then, if the case is to be decided at all, the party who adduces the greater amount wins, however little evidence he has adduced. In future in this area a party will win if he has adduced more evidence than his opponent, even though it may not, seen objectively, make his contention more probable than not. This is highly unsatisfactory, and the result may be that in an effort to avoid it cases will be fought out whenever possible on the question of the reason for dismissal, where the persuasive burden is borne by the employer, though the nature of the iuuse may make that very difficult.
The Tribunal does not believe that the evidence of one party irrespective of where the burden lies, should be preferred over that of the other party, whether claimant or respondent. It has been held by the High Court that all persons are to be treated equally before the law and any practice which required that one party’s evidence in a dispute was to be preferred to another’s would be unconstitutional. A person, by virtue of section 11(c) of the Interpretation Act 1937, *326 shall be construed as importing a body corporate (whether a corporation aggregate or a corporation sole) and an unincorporated body of persons as well as an individual. Accordingly, both claimant and respondent rank equally before the tribunal in relation to adducing evidence. Morris J (as he then was) in Mackie v Wilde [1998] 2 IR 510, was asked to prefer the evidence of a client above that of his solicitor. He stated (at p. 575) that:
I have not been referred to any Irish authority on this point nor do I believe that one exists and this does not surprise me for I do not believe that this proposition would be accepted as correct in the courts in this jurisdiction. In my view, it cannot be that any practice which requires that one party’s evidence in a dispute be preferred to another’s could be a compliance with the court’s obligation to observe fair procedures or an observance by the court of its constitutional obligations towards persons coming before the courts … Not only do I reject this as a statement of the law but I find the suggestion that it should be the law unconstitutional, impractical and offensive. It would be unconstitutional in that it would be a failure to deal with all persons equally before the law.
Accordingly, it would be wrong for the Tribunal to elevate the testimony of the claimant, when she claims that she had an arrangement with the respondent, to the stratosphere of icy evidential certainty simply because the respondent is unable to refute the assertion. The arrangement as stated, that she was excused from working on certain occasions, must be, supported by sufficient evidence, not because this arrangement would be unique but rather that this contention is necessary in determining whether or not a dismissal took place, who dismissed who and whether or not it was unfair. Moreover, if the claimant had made such an arrangement, and the respondent could not rebut the same, it was, necessary for the claimant to ensure that the respondent could not force the claimant to work on days that were public holidays. However, here a lacuna arises as a result of the claimant’s application form; if the respondent wished to carry out stocktaking duties on a public holiday the claimant would have been obliged to do so. On her staff application form signed on February 6, 1999, at section entitled: ‘To Be Signed On Acceptance Of Employment’ at paragraph 2 thereof, the claimant ‘… agreed to do stocktaking in the store, dates and times to be determined by the store manager.’ If the arrangement as heretofore stated had been in operation then the claimant would have had to contract out of this term, which in fact, she did not do.
The claimant in the instant case has failed to satisfy the Tribunal that the agreement existed as alleged. The burden of proof rested upon the claimant in proving this. The standard of proof which was placed before the Tribunal fell far short of sufficient. Notwithstanding the fact that the respondent could not *327 refute the assertions of the claimant, the claimant failed to furnish adequate proof, on the lowest possible threshold, to demonstrate that she had an agreement with the respondent company.
The concept of ‘abandonment’ has been accepted as an employer’s defence by the Employment Appeals Tribunal in cases where the claimant has abandoned the contract of employment by some act or conduct. O’Neill v D.R Sterling & Co. Ltd UD754/82 was a case based on the refusal by the employee to carry out a lawful and reasonable instruction. In the instant case the claimant has stated that she would not be changing her mind. An employee can be responsible for dismissing him or herself when they walk off the job without warning or justification: Gannon v. Firth [1976] IRLR 415. Alternatively, an employee may leave by agreement and not because of dismissal: Tracey v Zest, The Times, April 23, 1982; Birch v University of Liverpool [1985] ICR 470.
What is said or done may be open to misunderstanding, and if, for example, an employee leaves in the belief that she has been sacked when closer inquiry shows that she has not she will lose her claim under the Unfair Dismissals Acts. In the instant case, the respondent company requested the claimant to reconsider her understanding of the contract of employment as they were not satisfied that it was as the claimant asserted. She declined to do so. Accordingly, it cannot be said she was dismissed by the respondent but rather, that she dismissed herself. In Futty v Brekkes [1974] IRLR 130, the foreman and a fishing filleter on Hull docks had a discussion which ended with the foreman saying:
If you don’t like the job, you can f— off.
The employee took him at his word, and then claimed compensation for unfair dismissal. The Industrial Tribunal had to decide first upon the precise significance of the words used, and held that what they actually meant was:
If you are complaining about the fish you are working on; or the quality of it, or if you do not like what in fact you are doing, then you can leave your work, clock off, and you will be paid up to the time when you do so. Then you can come back when you are disposed to start work again the next day.
That being so, there was no dismissal but only, as the Industrial Tribunal put it, a ‘general exhortation.’ It followed that the employee had left without cause and so lost his claim.
In the instant case the claimant was not and is not prepared to work within the general terms and conditions which apply to staff working for the respondent company. In the absence of an agreement to the contrary the claimant is *328 obliged to conform to the reasonably accepted terms of the contract of employment: Gorse v Durham County Council [1971] 2 All ER 66. In the case of Carvill v Irish Industrial Bank Ltd. [1969] IR 325 Kenny J in the High Court stated that:
The grounds relied upon, to justify a dismissal without notice of an employee, must be actions or omissions by the employee which are inconsistent with the performance ‘of the express or implied terms of his contract’.
Sachs LJ in Sinclair v Neighbour [1966] 3 All ER 988, held that:
It is well-established law that a servant can be instantly dismissed when his conduct is such that it not only amounts to a wrongful act inconsistent with his duty towards his master but is also inconsistent with the continuance of confidence between them.
In construing the instant contract of employment and the alleged agreement between the claimant and the respondent company, the Tribunal found guidance in the dicta of Budd J in Walsh v Dublin Health Authority (1964) 98 ILTR 82 at 86–87, wherein he stated that:
As to what is meant, and should be implied as being in the contemplation of the parties, depends upon the true construction of the whole contract viewed in the light of the surrounding circumstances and all the relevant matters.
Accordingly, having regard to the surrounding circumstances and all the relevant matters as set out hereinbefore, the Tribunal finds that no agreement in the terms alleged has ever existed. The claimant on discovering that she could not regulate the roster system to dovetail with the change in her circumstances clearly stated to the respondent company that she would not reconsider her position. In the circumstances the respondent company confirmed the dismissal by way of letter dated June 26, 2000. However, on the evidence available and having regard to the circumstances and all the relevant matter, the Tribunal is satisfied that the evidence supports the fact that the claimant either dismissed herself or she abandoned, the employment relationship. Accordingly, the final paragraph in the said letter has no evidential foundation to it.
Given that the claimant could no longer comply with the terms and conditions of the contract of employment, in the words of Lord Denning in Hill v C.A. Parsons Co. Ltd [1971] 3 All ER 135‘… it is inconsistent with the … nature of the [employment] relationship that it should continue contrary to the *329 will of one of the parties thereto …’ the Tribunal has no alternative but to dismiss the claimant’s appeal under the Unfair Dismissals Acts 1977 to 1993.
However, the claimant is entitled to minimum notice as claimed. It is not clear from the evidence whether or not this was paid. The claimant offered no evidence upon this and if same has not been paid the claimant is entitled to one weeks’ pay under the Minimum Notice and Terms of Employment Acts 1973 to 1991, given that she was expected to work at least 22 hours per week (Form T1-A) and this was not refuted by the respondent.
Mc Kernan -v- Employment Appeals Tribunal
[2008] IEHC 40 (05 February 2008)
Judgment of Mr. Justice Kevin Feeney delivered the 5th day of February,
2008
1.1 From the 18th May, 1979 the applicant held the permanent office of rent collector to Cork City Council. He was appointed and held his office under Article 32(2) of the Local Government (Officers) Regulations 1943 made under Part 2 of the Local Government Act 1941. It was a permanent position and under the legislation the applicant held his post until he should die, resign or be removed from office. Part 2 of the 1941 Act was repealed by the Local Government Act 2001. Section 158(b) of that Act permitted a local authority, such as the notice party herein, to alter the terms and conditions of employment of employees such as the applicant.
1.2 Following the said statutory change Cork City Council sought to introduce changes in the terms and conditions of employment of the rent collectors employed by the Council and in particular sought to end door to door rent collection. All the active rent collectors, other than the claimant in this case, were members of the IMPACT trade union. That trade union represented the rent collectors in discussions with the City Council resulting in a memorandum of understanding being agreed as of February, 2002. The applicant became aware that the City Council proposal to abolish the position of rent collector and entered into correspondence with the City Council. In July of 2002 the claimant’s solicitor wrote to Cork City Council expressing the view that the applicant’s terms of employment were covered by the 1943 regulations. On the 22nd August, 2002 Cork City Council responded indicating that it was not its intention to remove the claimant from office nor was any such proposal being made but the letter went on to point out that the 1943 regulations had been replaced by the terms of the 2001 Act and that the City Council would not deal with the claimant individually as negotiations had taken place with the trade union. The claimant was not a member of the trade union and was not part of the negotiation process. The claimant was informed by the City Council that door to door rent collections were to cease as and from the 1st October, 2002. At the end of September, 2002 the claimant was asked to return the sum of money which he had available to him as a “float” and was informed that he should report to the senior officer in Housing on the 2nd October, 2002 for his new assignment. A dispute arose as to the proposed redeployment of the applicant by the notice party and in December, 2002 the applicant claimed that he was forced to accept an early retirement package on a without prejudice basis.
1.3 The applicant commenced a claim for unfair dismissal before the Employment Appeals Tribunal, it being the claimant’s case that himself and two other rent collectors, who were in dispute with Cork City Council, “were effectively victimised”.
He claimed that he was left with no alternative but to accept on a without prejudice basis a retirement package at the relatively early age of fifty seven as a result of which the applicant had suffered and continued to suffer ongoing loss.
1.4 The applicant brought his claim to the Employment Appeals Tribunal under the Minimum Notice and Terms of Employment Acts 1973 to 2001 and under the Redundancy Payments Acts of 1967 to 2003 and under the Unfair Dismissal Acts 1977 to 2001. The applicant contended that he was unfairly dismissed from his position with the City Council. The claim was heard on oral evidence over a period of five days, from the 25th April, 2005 to the 13th October, 2005. Both the parties were represented by solicitor and counsel and detailed written submissions were placed before the three member division of the Tribunal. On the 26th May, 2006 the Employment Appeals Tribunal issued its decision wherein it determined that the Tribunal was satisfied that on the evidence that the claimant terminated his own employment and consequently such termination could not be construed as an unfair dismissal and that therefore the Tribunal had no alternative but to dismiss the claimant’s appeal under the Unfair Dismissal Acts 1977 to 2001. The Tribunal also concluded that the claimant’s claim in respect of redundancy and minimum notice failed in view of the financial package which the applicant had already received from the City Council. The decision of the Employment Appeals Tribunal was a detailed eight page written decision signed by the chairman and dated the 26th May, 2006.
2.1 The applicant commenced judicial review proceedings by order of this Court on the 3rd July, 2006, and was granted leave to issue a notice of motion seeking judicial relief. The principal relief sought is an order of certiorari quashing the decision of the Employment Appeals Tribunal dated the 26th May, 2006, together with a consequential order pursuant to order 84, Rule 26(4) remitting the matter back to a different division of the Employment Appeals Tribunal with a direction to consider the applicant’s claim in accordance with law and in accordance with the findings of this Honourable Court. The grounds upon which the reliefs are sought are set forth in paragraph E of the statement of grounds dated the 27th June, 2006 (incorrectly referred to as dated the 29th June, 2006 in the order of the High Court of the 3rd July, 2006) signed by the solicitor for the applicant. The grounds are therein set out in three numbered paragraphs.
2.2 The first ground can be summarised in that it is claimed that the decision of the Tribunal was bad on its face, in that it made no attempt to outline the evidence presented by four witnesses called by Cork City Council in defence of the applicant’s claim. It is contended that as a result of such omission that the applicant was precluded from effectively considering what evidence the Tribunal had relied upon in arriving at its determination and further that the applicant is unable to determine what findings of fact had been relied upon by the Tribunal in making its determination and that the determination reached by the Tribunal was not supported by the summary of evidence outlined in its written decision. The second ground relied on is that the decision of the Tribunal was in breach of natural justice, in that one of the principal reasons supporting the determination is reliance on the doctrine of frustration and neither of the parties to the hearing before the Tribunal were asked to consider that issue by way of oral or legal submissions. The third ground, which is inter-related to ground two, was that it was claimed that the Tribunal took into account irrelevant or extraneous matters and misdirected itself in law and fact and that its decision was perverse in arriving at its determination, based upon the mistaken assumption that the notice party, that is Cork City Council, was under a legal obligation to phase out rent collection as a result of the introduction of the Local Government Act 2001, when in fact the provisions of that Act merely allowed and permitted a local authority to alter the terms and conditions of employment of employees, such as the applicant, without the safeguards that had been provided for under the 1943 regulations.
3.1 It is necessary to consider the written decision of the Tribunal to put in context each of the three grounds. The first ground relies on a quotation from the paragraph headed determination, wherein it is stated:
“The evidence … presented to this Tribunal has been fairly set out above”.
and goes on to further state:
“The facts surrounding the issues and disputes between the parties and an account of the evidences of the various witnesses are set out above in great detail and need not be repeated here”.
The applicant herein complains that whilst the written decision sets out in some detail the evidence presented by the applicant and other witnesses called by him, that there was no attempt within the written decision to outline the evidence presented by the four witnesses called by Cork City Council. It is that fact which gives rise to the claim made by the applicant that the decision is bad on its face. The complaint is also made that, as a result of such failure, that the applicant was precluded from making a proper consideration of what evidence had been relied on and further that the applicant was unable to determine what findings of fact had been made by the Tribunal in arriving at its decision. Prior to the Tribunal arriving at its decision, it had received and considered detailed written submissions from both sides. Those submissions commented in some considerable detail on the evidence adduced before the Tribunal and highlighted certain aspects of the evidence. An overall reading of the written decision of the Tribunal makes it clear that there were a number of clear findings identified by the Tribunal in its decision. Whilst the Tribunal expressly refers to particular items of evidence given by individuals, it also provides clear statements as to the determinations made by it. The Tribunal selected particular items of evidence from particular witnesses to include in its report but also made a number of express findings, namely:
(a) “The claimant’s position of ‘rent collector’ was abolished and thus the actual job itself disappeared but such a situation had been signalled for quite some time and it did not come as a surprise to him (the applicant) or others.
(b) In the instant case the claimant was offered a generic grade 5 position which he was not satisfied with. Having heard the evidence the Tribunal is satisfied that having taken this position there would not have been an appreciable diminution in earnings nor terms and conditions. It was clear from the evidence that the claimant wished to choose his own type of work. What is also clear from the evidence is that the claimant wanted to “tailor make” or “self design” his own position with the Corporation. Moreover, the claimant indicated to the respondent (Cork City Council) that he would accept the financial ‘package’ he was entitled to if he could be sweetened by ‘six months’ wages.
(c) In the instant case it is clear that the new position being offered was the best available and was one which the respondent (Cork City Council) was satisfied that the claimant could perform with some on the job training.
(d) The claimant in the instant matter unreasonably refused the offer of the new position. At worst the claimant had no option but to accept the offer as the former position had become outmoded and was no longer a function in the employment of the respondent’s Council. The claimant could have continued to work in the new position ‘under protest’ and issued proceedings for breach of contract if he felt that the employer was not doing all he could to facilitate him. The Tribunal went on to state on its final page, as follows:
(e) ..Although the claimant’s position with the respondent (Cork City Council) as ‘rent collector’ had come to an end, his contract of employment continued and as the respondent was obliged to do, pursuant to s. 15 of the Redundancy Act, 1967, a new position was offered which was declined by the claimant. The claimant in the instant case clearly and unequivalently informed the respondent that he did not wish to resume his duties in the manner as offered and proposed and in the terms of the actual contract of employment as intended by the respondent. It was the claimant who brought his own contract of employment ‘to an end’.”
The above findings led the Tribunal to conclude that it was satisfied on the evidence that the claimant terminated his own employment and consequently such termination could not be construed as an unfair dismissal. Having considered the written decision of the Tribunal as a whole, it is manifest that the Tribunal made clear and concise findings of fact based upon its interpretation of the evidence. A failure to expressly refer to the evidence of particular witnesses in no way diminishes from those findings. The written decision identifies the factual determinations made by the Tribunal. This Court is satisfied that there is no obligation on the Tribunal to make express reference to which particular portion of the evidence was relied upon in coming to such determinations. The presence of clear and concise determinations allowed and permitted the applicant to be aware of the factual grounds and findings which underpinned the Tribunal’s decision. Those provided a clear basis for the determination of the Tribunal and provided sufficient basis to enable the applicant to consider whether or not to exercise his right to pursue his right to a full appeal in the Circuit Court.
In arriving at its decision, the Tribunal had also confirmed that it had received and considered the detailed written submissions on behalf of the parties, which it identified as being very helpful and of assistance, and that the Tribunal had read and considered all that material.
3.2 The applicant relies on one authority in support of its claim relating to the failure to recite the evidence from Cork City Council witnesses. That is a judgment of the Supreme Court in Dempsey v. Tobin (Unreported Judgment of the 28th January, 2005). On page 3 of that judgment McGuinness J. stated:
“It is clear from decisions of this Court and from the law in general that a trial Judge, when deciding between two witnesses, should set out his reasons for making a choice between the evidence of the two witnesses. He should set out the evidence he has heard and his reasons for preferring the evidence of one witness to another.”
That quotation relates to a situation in a trial where there is conflicting evidence. In particular it relates to conflicting expert medical evidence and identifies the desirability of a trial Judge, when deciding between the evidence of two such witnesses, that the judgment should set out the reasons for making a choice between the evidence of the two witnesses. That authority is not relevant to the facts of this case as the applicant has failed to identify any finding which resulted from the Tribunal deciding between conflicting evidence from two witnesses. The applicant has failed to identify any instance where it is suggested that the Tribunal chose between the evidence of two witnesses. Indeed it is to be noted that in the written submissions put in to this Court on behalf of the applicant, that it was acknowledged at paragraph 35 thereof that if the only complaint was a complaint relating to the failure to recite the evidence of the Cork City Council witnesses that an application for certiorari would not lie. That acknowledgement recognises the reality of the factual position in that there was clear and concise findings of fact which were more than sufficient to enable the applicant to consider whether or not to appeal to the Circuit Court. Insofar as it is contended that the decision of the Tribunal is perverse or is not supported by the summary of evidence, outlined in its decision, the Court is satisfied that it cannot be said that the Tribunal’s decision was perverse in the sense of being unreasonable. At the very high point from the applicant’s point of view, even if there was a want of evidence or if the Tribunal drew wrong conclusions from the facts, or took into account extraneous matters, it erred within jurisdiction and its decision should not be quashed. See State (Keegan) v. Stardust Victims Compensation Tribunal [1986] I.R. 462 and Memorex World Trade Corporation v. The Employment Appeals Tribunal [1990] 2 I.R. 184. This Court is satisfied that on the first of the three grounds in respect of which relief is sought that the decision made by the Tribunal is not bad on its face.
4.1 The second ground relied upon by the applicant is that there was a breach of natural justice in that one of the principal reasons supporting the determination of the Tribunal was the Tribunal’s reliance on the doctrine of frustration and it is claimed that neither the applicant nor Cork City Council were asked to consider such issue. The portion of the written decision relied upon in support of this ground is to be found in the fifth page of the written decision of the 26th May, 2006. Therein it is stated as follows:
“In the instant case the doctrine of supervening legal impossibility has rendered the position (the applicant’s job as rent collector) nugatory by virtue of the legislative enactment in consequence whereof the Corporation no longer has such a position of rent collector within its organisation. For the avoidance of doubt it was ‘position’ and not the contract of employment which was frustrated by statute. This doctrine is distinctly different from the commonly accepted term ‘frustration’ which results from a certain incapacity, for example illness, custodial sentences and such like.”
The applicant’s case is that it is apparent from the above statement that the Tribunal proceeded on a mistaken assumption that Cork City Council was obliged as a result of the provisions of the 2001 Act to phase out rent collecting. The correct factual position is that the effect of the provisions of the Local Government Act 2001 was that Cork City Council was able to proceed with its implementation of the phasing out of rent collecting without its rent collectors being able to rely upon the safeguards provided for in the Local Government Regulations 1943. After the passing of the 2001 Act, rent collectors who had previously been office holders became employees and under the provisions of s. 158 of the 2001 Act, the local authority was empowered to determine the remuneration and conditions of employment of its employees and was given the entitlement from time to time to alter the remuneration and conditions of employment of such employees. There was no obligation on Cork City Council, as a result of the provisions of the 2001 Act to phase out door to door rent collecting. In the light of the true Statutory position the statement that the position of rent collector was frustrated by statute is incorrect. It was argued on behalf of the applicant that it is manifest from the written decision of the Tribunal that it had proceeded on a mistaken assumption that the notice party was under a legal obligation under the 2001 Act to phase out rent collecting. It is therefore claimed by the applicant that the Tribunal failed to consider a crucial aspect of the applicant’s claim, namely that the notice party, Cork City Council, unilaterally changed the phasing out of rent collecting without proper notice being given and without adequate consultation with the relevant parties.
4.2 That error is the basis for grounds 2 and 3 of the applicant’s claim for judicial review. Not only is it claimed that the decision was in breach of natural justice in that one of the principal reasons supporting the determination was reliance on the doctrine of frustration which neither the applicant nor the notice party had addressed but also that the Tribunal took into account irrelevant or extraneous matters and misdirected itself in law in proceeding on the mistaken assumption that Cork City Council was under a legal obligation to phase out rent collection as a result of the 2001 Act.
4.3 The notice party does not dispute that there is the factual error identified above. The respondent does not formally make that concession. However what is submitted on behalf of the notice party is that any factual error is immaterial. That submission is based upon the contention that it was accepted by all parties at the hearing before the Tribunal that the position of rent collector was to be abolished and that the only issue between the parties was the time table for the phasing out of the position and more significantly the alternative positions available to the applicant. It was contended that whether or not the abolition of the position of door to door rent collector gave rise to the contract between the parties being frustrated, or whether the position was abolished by virtue of the doctrine of supervening legal impossibility was immaterial in view of the fact that the real issue between the parties was whether the applicant had been offered suitable alternative positions and whether his refusal to engage with Cork City Council in relation to alternative positions or reassignment was reasonable. The claim of immateriality or irrelevance was claimed by the notice party to be supported by the fact that at no stage during the course of the five day hearing was it contended by the applicant that the position of door to door rent collector could continue to exist. It was therefore claimed that whether the position was abolished by virtue of legislation (which it was not) or by virtue of the doctrine of frustration or otherwise was irrelevant. A careful reading of the written submissions submitted on behalf of the applicant to the Tribunal makes it clear that all parties were proceeding on the basis that there was to be a change over to a new system. Indeed it was expressly stated in paragraph 11 of the written submissions of the applicant to the Tribunal as follows:
“It should be noted that the evidence of the claimant (the applicant herein) is that he was resigned to the new system coming into place but at the very least he expected that he would be redeployed to an appropriate position with adequate training and adequate consultation.”
The submissions went on to state in paragraph 21, as follows:
“It is respectfully submitted that even if the Tribunal were to find that the alternative positions offered to the claimant were suitable they cannot leave the matter at that but must consider the reasonableness of the claimant’s refusal to accept same.”
It is also apparent from the summary contained in the submissions that whilst complaints were made in relation to a lack of information and the changing of the phasing out of the rent collecting without proper notice or consultation, that at all times it was common case that the position of door to door rent collector was to be abolished. It is expressly conceded on behalf of Cork City Council that the 2001 Act did not in any way lead to the abolition of the position of door to door rent collector. However what was put in issue by the notice party is that the error in relation to the basis for the abolition of the position of door to door rent collector did not materially impact upon any of the findings of fact made by the Tribunal or on its conclusions.
4.4 The Chairman of the Tribunal in his affidavit deals with this matter in his replying affidavit. He acknowledges therein that neither party was asked to consider the issue of the doctrine of frustration nor the doctrine of supervening legal impossibility by way of either oral or legal submissions. In paragraph 10 of the affidavit the Chairman of the Tribunal submits that whether the Tribunal was correct in law in relation to the consequences of the Local Government Act of 2001 or not is of no relevance in that it was accepted by both parties that the claimants role as rent collector had ceased and this deponent goes on to aver that if the Tribunal was incorrect in determining the basis for such termination, it is of no relevance as the central issue in the proceedings before the Tribunal was the adequacy or otherwise of the alternative position which had been offered to the applicant by the notice party. The deponent also relies on the fact that the applicant’s submission to the Tribunal acknowledged that he was resigned to the new system coming into place as stated in paragraph 11 of the written submissions.
4.5 This Court must consider the issue as to whether the error of law identified above and contained within the decision of the Tribunal is such as would result in the decision of the Tribunal being quashed by order of certiorari. In this instance the record of the Tribunal is its decision of the 26th May, 2006. In particular the Court has regard to the approach identified by Keane J. in Farrell v. The Attorney General [1998] 1 I.L.R.M. 364 where he stated (at page 377):
“Even where there is no error as to jurisdiction, no fraud on the part of the coroner and no error on the face of the record, there may have been some frailty in the course of the proceedings, such as an error in law or a want of natural justice and fair procedures, which would entitle the High Court to set aside the verdict in whole or in part.”
That statement of the legal entitlement of the High Court is applied to a coroner but would be equally applicable to the Employment Appeals Tribunal. This Court must consider whether the error in law, identified above, is such as would entitle the Court to set aside the Tribunal’s decision.
4.6 Assistance as to the circumstances which would give rise to such entitlement were identified by Clarke J. in the decision of Cork County Council v. Shackleton (Unreported, High Court, 19th July, 2007). That case was heard together with another case and both had, at their heart, difficult questions concerning the interpretation of the social and affordable housing requirements imposed by s. 96 of the Planning and Development Act, 2000. Clarke J. identified that in both sets of proceedings the proper interpretation of s. 96 was crucial and ultimately concluded that the interpretation, under review in the Shackleton case made by the arbitrator was wrong and was based upon an incorrect interpretation of the crucial legislative section. Clarke J. went on to consider whether in those circumstances the decision of the arbitrator required to be quashed. Ultimately Clarke J. concluded at paragraph 9.7 on page 49 of the judgment, as follows:
“It seems to me to follow that, where there has been a significant error in the interpretation of a material statutory provision leading to a decision of the property arbitrator being wrong in law, any such decision should, prima facie, be quashed.”
The approach identified by Clarke J. is of assistance to this Court in that it highlights the necessity to have regard to whether or not the error identified is significant relating to a material matter leading to the decision. That approach followed and applied the earlier decision of the Supreme Court in the State (Keegan) v. Stardust Compensation Tribunal [1986] I.R. 642 which identified that the test of unreasonableness or irrationality in judicial review lies in considering whether the impugned decision plainly and unambiguously flies in the face of fundamental reason and common sense. The Supreme Court identified that if a decision did, then the decision maker should be held to have acted ultra vires. It would follow that if the exercise of a statutory discretion is grounded on an erroneous view of the law it should not normally be allowed to stand. If it was so grounded it would fail the test of being reasonable and rational.
4.7 This Court must therefore give consideration as to whether or not the decision of the Tribunal contained a significant error of a material matter leading to the decision. The Court must consider whether or not the decision of the Tribunal was grounded on an erroneous view of the law and whether the decision turned on an incorrect and wrong determination of a legal issue.
4.8 The necessity of a link between the incorrect understanding of the law and a decision, thereby making it clearly relevant, is further illustrated in the case of Murphy v. Minister for Social Welfare (1987) I.R. 259 which was a judicial review case seeking an order of certiorari quashing the decisions of a deciding officer and an appeals officer respectively under the Social Welfare (Consolidation) Act of 1981 and in addition claiming a declaration that the applicant’s employment was insurable under the Act. In dealing with the applicant’s claim that his employment was insurable under the Act Blayney J. held (at page 301):
“But it is clear that the Appeals officer did not do this. His decision was based on a single ground, namely that the applicant was not employed under a contract of service. In the result it seems to me that the Appeals officer did not understand correctly the law which he had to consider in coming to his decision, and it follows that his decision is vulnerable on the ground of illegality as understood in the sense explained by Lord Diplock in his judgment in Council of Civil Service Unions v. Minister for the Civil Service (1985) AC 374 at 410. That approach clearly identifies the willingness of the High Court to quash decisions where there was an incorrect interpretation of the law which had to be considered and indeed in that case underpinned the single ground of the decision of the Appeals Officer.”.
4.9 A careful reading of the decision of the Tribunal, in its entirety, leads this Court to the conclusion that the determination of the Tribunal could not be said to be grounded on an erroneous view of the law nor could it be said that the decision turned on an incorrect determination of a legal issue. Nor was the incorrect statement of the law made in relation to a matter that had to be considered. The error, which has been identified, does not on the facts of this case relate to a material matter and cannot be said to have led to the decision. It follows that the issue raised in relation to natural justice does not on the facts of this case arise. Natural justice clearly requires that a party be given an opportunity to be heard as to facts in issue, remedies and to relevant law. A reading of the decision of the Tribunal confirms that whilst there was an error as to the basis upon which there was no longer the position of door to door rent collector within Cork City Council, the common position of the parties was that the applicant accepted that the position was being abolished. The dispute between the parties was in relation to the time period over which the rent collection was to be phased out and what alternative positions or alternative retirement package would be available. In those circumstances the consequences of the Local Government Act 2001 were not directly relevant. It was common case that the claimant’s functions and duties were being abolished and that was not the fact in issue nor was the legal basis for such abolishment a relevant or material matter. It did not have to be considered. The decision of the Tribunal recognised that the applicant’s contract of employment continued and a decision to find against the applicant was based upon the fact that the applicant declined the new position offered.
4.10 This Court is satisfied that the error in relation to legal interpretation identified in the decision of the Tribunal is not a significant error insofar as it did not relate to a material matter and could not be said to have led to the decision. The decision was grounded upon the common case that the applicant’s position was to be abolished and in those circumstances the legal framework of such abolition could not be said to have grounded the Tribunal’s decision nor was the error in interpretation of a material statutory provision leading to the decision.
5.1 This Court is therefore satisfied that the impugned decision of the Tribunal is not in breach of natural justice. In this case it was contended in the second ground upon which judicial review was sought that one of the principal reasons supporting the determination was the error identified in the application. This Court is satisfied that a true analysis of the decision does not lead to the conclusion that the error could be identified as a principal reason supporting the determination. The error can not be identified as significant in that it did not relate to a material matter and could not be said to have led to the decision.
The Court is therefore satisfied that the decision cannot be categorised as perverse nor could it be said that there was a failure of natural justice.
5.2 In the light of the determination by this Court that the applicants have failed to establish any grounds to establish entitlement to the reliefs sought, the Court will allow the cause shown and refuse the relief sought.
5.3 In the light of the above determination the issues raised in relation to discretionary factors and alternative remedy do not arise. This Court expresses no view in relation to the issue as to whether or not any alternative remedy continues to exist but does note that the respondent, Cork City Council, has conceded that it will take no issue with an appeal being lodged out of time and the issue as to whether or not an extension of time for pursuing such an appeal can be granted is a matter for another Court.