An Bord Banistiochda Gaelscoil Moshiolog v The Labour Court

• Jurisdiction: Ireland
• Judge: Mr. Justice Cregan
• Judgment Date: 03 August 2023
• Neutral Citation: [2023] IEHC 497
• Court: High Court
• Docket Number: [Record No. 2022/178MCA]

In Re the Unfair Dismissals Act 1977 as Amended – An Appeal Pursuant to Section 46 of the Workplace Relations Commission Act 2015 as Amended

Between

An Bord Banistiochda Gaelscoil Moshiolog

Appellant

and

The Labour Court

Respondent

Aodhagán Ó Suird

Notice Party

[2023] IEHC 497

[Record No. 2022/178MCA]

THE HIGH COURT

JUDGMENT (No. 2) of Mr. Justice Cregan delivered on the 3rd day of August 2023 .

Introduction

1 . This is the second judgment which I have delivered in this case. In my first judgment I considered the substantive appeal brought by the Board of Management of the school against the decision of the Labour Court which held that Mr. Ó Suird had been unfairly dismissed. In that judgment I dismissed that appeal and I indicated that I would hear the parties further on the exact terms of the order, the impact on the existing principal of the school, arrears of pay, the continuity of terms of employment and pension entitlements.

2 . This judgment deals with three issues:

(a) the exact orders which should be made in this case – and in particular the issue of reengagement;

(b) the issue of costs;

(c) the application for a stay on parts of the order sought by the Board of Management in the event of an appeal to the Supreme Court.

The form of the final order

3 . The starting point in considering this matter is to remember that this was an appeal brought by the Board of Management against the decision of the Labour Court. It is clear from the terms of my first judgment that this appeal was dismissed. In those circumstances, the order of the Labour Court stands except insofar as it made an error of law. It is important therefore to consider the decision of the Labour Court in this matter.

Statutory context

4 . Before doing that, it is important to provide some context around this decision. It is clear that s. 7 of the 1977 Act, (as amended by s. 3 of the 1993 Amendment Act) sets out the primary remedies for unfair dismissal. As was stated in Redmond on Dismissal Law, (3 ^rd Ed) at para. 24.05:-

“An employee unfairly dismissed under the Act is entitled to redress consisting of whichever of the following primary remedies the Workplace Relations Commission considers appropriate having regard to all the circumstances –

( a) Reinstatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the reinstatement shall be deemed to have commenced on the date of the dismissal;

Or

(b) Re – engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances” (emphasis added).

5 . I also note that the learned author states as follows at para. 24.12:-

“Re – engagement on the other hand may be in a different job provided it is comparable to the old one or is otherwise suitable. This remedy provides the WRC (or Labour Court) with considerable latitude. The stated terms of re – engagement, if sufficiently wide, could in effect, amount to reinstatement” (emphasis added).

6 . It is important in that context to consider the “redress” directed by the Labour Court.

Redress ordered by the Labour Court

7 . In the final paragraph of its decision the Labour Court stated as follows: –

“Having found that the complainant was unfairly dismissed for the reasons outlined above, the court determines that the appropriate redress in this case is an award of re – engagement with effect from 1 ^st September 2017, the period from his date of dismissal to that date to be regarded as a period of unpaid suspension, thus preserving the complainant's continuity of services for all purposes”.

8 . It is clear therefore that the Labour Court determined that the appropriate redress in this case “is an award of re-engagement with effect from 1 ^st September 2017”.

Interpretation of Labour Court Decision

9 . The statutory definition of re-engagement appears to have two limbs. The first limb is: –

(i) Re-engagement by the employer of the employee either in the position he held immediately before his dismissal,

or

(ii) In a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances.

10 . In other words, the statutory definition of re-engagement has, as its first limb, the engagement of the employee in the position he held immediately before his dismissal which, in substance, amounts to re-instatement. The second limb allows for re-engagement of the employee in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances.

11 . Thus, whereas reinstatement means restoring the employee to exactly the same position he held beforehand, “re-engagement” – as defined – means either reinstatement or being put in a different position which would be reasonably suitable for him.

12 . When one considers the statutory redress of re-engagement as ordered by the Labour Court, it is not clear from the Labour Court's decision which of the two limbs it had in mind for Mr. O'Suird. In these circumstances it is a matter for this Court to interpret this redress as a matter of law and/or fact in this particular case.

13 . There are three possible interpretations of the redress of re-engagement directed by the Labour Court.

14 . The first of these is that Mr. Ó Suird is only restored to a position as a teacher in the school and Ms. Scott remains as the permanent school principal.

15 . Mr. Lyons SC for Mr. Ó Suird submits that such an outcome would rob his client of all the moral and legal force of the Labour Court and High Court judgments and would result in a hallow victory for Mr. Ó Suird. I agree with that submission. Such an interpretation – and outcome – would be manifestly unjust.

16 . The second interpretation is that Mr. Ó Suird should be offered a similar position. This raises the option of Mr. Ó Suird and Ms. Scott acting as joint principals of the school.

17 . Whilst Mr. Ó Suird was open to such a possibility, and whilst such an outcome might have been an attractive one, counsel for the Minister for Education submitted that under the provisions of the Education Act 1998, there can only be one principal in each school. I agree with that submission. A ‘two-principal solution’ is therefore not possible.

18 . That leaves the third and only possible option which is re-engagement of Mr. Ó Suird by his re-instatement as principal of the school. I am of the view that this is the correct resolution of this case. It is the correct interpretation of the Labour Court decision. Even if it were not, it would be the resolution which this Court would direct, in the exercise of its statutory power in an appeal of this nature.

19 . Moreover, the position of the Minister was that the practical effect of the decision of the Labour Court to direct the reengagement of Mr. Ó Suird as principal (which decision has been upheld by the High Court on appeal) was that the position of Ms. Scott as principal was displaced. I agree with that submission also.

The issue of “unpaid suspension”

20 . The Labour Court in its decision recommended re-engagement with effect from 1 ^st September 2017 with “the period from his date of dismissal to that date to be regarded as a period of unpaid suspension thus preserving the complainant's continuity of service for all purposes”.

21 . However, in my first judgment, I found at para. 398 as follows: –

“ 398. I am of the view therefore that the continuation of Mr. O'Suird's administrative leave from 31 ^st January 2013 until his suspension in May 2013 and his suspension from May 2013 onwards were not warranted by the circumstances, were wholly unreasonable, and reversed the presumption of innocence. As such, these actions were a clear breach of the rules of Circular 60/2009. As the procedure specifically stated that the Board of Management should comply with general principles of natural justice, I am of the view that they have failed in all respects to comply with the principles of natural justice. I have therefore concluded that the continued administrative leave of Mr. O'Suird from 31 ^st January 2013 until May 2013 and his suspension from May 2013 until the conclusion of the disciplinary process were manifestly unreasonable, a breach of his natural and Constitutional rights and a breach of the requirements of Circular 60/2009”.

22 . In paras. 433 to 436 of my judgment I stated that I was of the view that the Labour Court had erred in law in coming to a conclusion about the period of unpaid suspension. I said at para. 435 of my judgment that the decision to suspend Mr. O'Suird in May 2013 was not only unreasonable but also unlawful.

23 . At para. 436 of my judgment, I found that there was no reason in law why the Labour Court should have imposed a period of unpaid suspension.

24 . In other words, my judgment in this case was that the Labour Court had made an error of law in imposing a period of unpaid suspension. This was a period from May 2013 until September 2017. It amounts to a penalty of almost two years' salary on Mr. O'Suird. In my view, this penalty was not, and could not be, justified as a matter of law. I found that the suspension of Mr. O'Suird for this time was unlawful. In those circumstances, I found the Labour Court made an error of law and that this period of his unpaid suspension should be set aside.

25 . I should also add that in my view the decision of the Labour Court to impose a period of suspension was arbitrary. It is not clear to my mind, and no reasons were given, why the Labour Court chose a...