Bannon v Employment Appeals Tribunal

• Jurisdiction: Ireland
• Judgment Date: 01 January 1993
• Date: 01 January 1993
• Docket Number: [1992 No. 125 J.R.]
• Court: High Court

High Court

[1992 No. 125 J.R.]

Bannon v. Employment Appeals Tribunal

John Bannon

Applicant

and

The Employment Appeals Tribunal, Respondent, and Drogheda Town Centre Limited, Notice Party

Cases referred to in this report:—

In re Northumberland Compensation Appeal Tribunal, ex parte Shaw[1952] 1 All E.R. 122 (C.A.); [1951] 1 All E.R. 268 (H.C.).

Landsorganisationen i Denmark for Tjenerforbundet i Denmark v. Ny Molle Kro (Case 287/86) [1987] E.C.R. 5465.

Spijkers v. Gebroedeas Benedik Abattoir C. V. (Case 24/1985) [1986] 3 E.C.R. 1119; [1986] 2 C.M.L.R. 296.

Employment law - Transfer of undertaking - Engagement of independent contractor to perform work of employee - Employee dismissed for redundancy - Unfair dismissal - Whether transfer of undertaking took place - Council Directive 77/187/EEC on the Approximation of Laws on Safeguarding Employees' Rights in the event of Transfers of Undertakings, Businesses or Parts of Businesses - European Communities (Safeguarding of Employees' Rights on Transfer of Undertakings) Regulations, 1980 (S.I. No. 306).

Judicial Review - Availability - Scope - Error of law on face of record of inferior tribunal - Dismissal of claim by tribunal - Whether applicant must exercise right of appeal before seeking judicial review.

Judicial Review.

The facts have been summarised in the headnote and are fully set out in the judgment of Blayney J., infra.

The relevant provisions of the Regulations of 1980 and of Council Directive 77/187/EEC are also set out in the judgment of Blayney J.

The applicant filed a statement on the 3rd April, 1992, seeking declaratory relief and an order of certiorari to quash the determination of the Employment Appeals Tribunal dated the 4th December, 1991. On the ex parte application of the applicant on the 6th April, 1992, the High Court (Blayney J.) granted leave to apply by way of judicial review.

Pursuant to a notice of motion dated the 29th April, 1992, the application was heard by the High Court (Blayney J.) on the 23rd July, 1992. The application was opposed by the notice party but not by the respondent.

The applicant had been employed by the notice party to perform security duties in the notice party's shopping centre. He was informed of the notice party's intention to have those duties carried out by an independent security firm ("Jae Brade") and given notice of redundancy. The employees of Jae Brade carried out the same duties that the applicant and his colleagues had previously performed. The applicant was offered employment by Jae Brade on less favourable terms than he had enjoyed previously and refused.

The applicant brought a claim for unfair dismissal against the notice party before the Employment Appeals Tribunal. He argued that the contracting out of the security duties to Jae Brade constituted a transfer of business by the notice party and consequently, his dismissal was unfair pursuant to the European Communities (Safeguarding of Employees' Rights on Transfer of Undertakings) Regulations, 1980 ("the Regulations of 1980") implementing European Council Directive 77/187/EEC. The Tribunal dismissed the applicant's claim on the basis that there had been no transfer within the meaning of the Regulations of 1980 and that the dismissal of the applicant was by reason of a genuine redundancy situation.

The applicant sought an order of certiorari by way of judicial review of the Tribunal's determination on the grounds that it was ultra vires.

Held by Blayney J., in granting the relief sought and referring the matter back to the Tribunal, 1, that where there was a legal transfer of a business or part of a business, Council Directive 77/187/EEC applied if the business retained its identity or if there was a change in the legal or natural person who was responsible for carrying on the business regardless of whether or not ownership of the business was transferred.

2. In this case the business of providing security services had retained its identity and there had been a change in the legal person responsible for carrying on the business from the notice party to Jae Brade.

Spijkers v. Gebroedeas Benedik Abattoir C.V. (Case 24/85) [1986] 3 E.C.R. 1119 and Landsorganisationen i Denmark for Tjenerforbundet i Denmark v. Ny Molle Kro(Case 287/86) [1987] E.C.R. 5465 applied.

3. That the court had power to make an order of certiorari to quash the Tribunal's decision since there was an error on the face of the record.

In re Northumberland Compensation Appeal Tribunal, ex parte Shaw [1952] 1 All E.R. 122 followed.

Cur. adv. vult.

Blayney J.

The applicant was employed as a security guard by the notice party, Drogheda Town Centre Limited (to which I shall refer as the company) between the 4th November, 1985, and the 26th May, 1991. His job was to carry out security duties in the shopping centre known as Drogheda Town Centre which is managed by the company. The personnel employed by the company were a manager, a secretary, a car-park attendant and five security guards. The company is responsible for the cleaning of the shopping centre, the control of car parking and the provision of security services. The tenants of the centre pay an annual fee to the company for managing the centre.

In the latter part of April, 1991, the company decided to have the security duties in the centre carried out by an outside firm on a contract basis. The firm chosen was Jae Brade Security Services Limited (to which I shall refer as Jae Brade). The applicant was informed of this by letter dated the 26th April, 1991, and he was given four weeks notice of redundancy. The other four security guards received similar notice.

Jae Brade commenced to provide the security service for the centre on or about the 12th May, 1991. They employed five men for the purpose, one of whom had previously been employed by the company. The five carried out the same security duties as had previously been performed by the applicant and his colleagues when in the employment of the company.

The applicant was offered employment by Jae Brade but refused it...