Bates v Model Bakery Ltd

• Jurisdiction: Ireland
• Judge: O'FLAHERTY J.,EGAN J.
• Judgment Date: 01 January 1993
• Neutral Citation: 1992 WJSC-SC 2550
• Docket Number: [S.C. No. 21 of 1990]
• Court: Supreme Court
• Date: 01 January 1993

MODEL BAKERY LTD v. BATES

BETWEEN

MODEL BAKERY LIMITED

Defendant/

Appellant

and

ALEX BATES AND OTHERS

Plaintiffs/

Respondents

1992 WJSC-SC 2550

21/90

THE SUPREME COURT

Synopsis:

EMPLOYMENT

Termination

Reason - Redundancy - Employee - Entitlement - Redundancy payments - Strike - Whether contract repudiated by employee - Implied term - Service of strike notice - Employment Appeals Tribunal - Decision - Appeal on point of law - Procedure - Appeal limited to facts found by tribunal - Rules of the Superior Courts, 1986, order 105 - Redundancy Payments Act, 1967, ss. 7, 39 - Minimum Notice and Terms of Employment Act, 1973, s. 11 - (21/90 - Supreme Court - 15/7/92) - [1993] 1 I.R. 359 [1993] ILRM 22

|Bates v. Model Bakery Ltd.|

CONTRACT

Terms

Implied term - Employment - Dispute - Strike - Employee dismissed - Whether employee repudiated contract - Implied term authorising strike action - (21/90 - Supreme Court - 15/7/92)- [1993] 1 I.R. 359

|Bates v. Model Bakery Ltd.|

EVIDENCE

Facts

Tribunal - Findings - Finality - Exception - Appeal on question of law - Appeal to be based on facts found by tribunal - (21/90 - Supreme Court - 15/7/92) - [1993] 1 I.R. 359 - [1993] ILRM 22

|Bates v. Model Bakery Ltd.|

PRACTICE

Appeal

Evidence - Tribunal - Decision - Finality - Exception - Appeal on question of law - Appeal to be based on facts found by tribunal - (21/90 - Supreme Court - 15/7/92) - [1993] 1 I.R. 359 [1993] ILRM 22

|Bates v. Model Bakery Ltd.|

Citations:

MINIMUM NOTICE & TERMS OF EMPLOYMENT ACT 1973 S11(2)

REDUNDANCY PAYMENTS ACT 1967 S39(14)

MINIMUM NOTICE & TERMS OF EMPLOYMENT ACT 1973 S11

MINIMUM NOTICE & TERMS OF EMPLOYMENT ACT 1973 S9

RSC O.105

PROTECTION OF EMPLOYMENT ACT 1977

BECTON DICKINSON LTD V LEE 1973 IR 1

MORGAN V FRY 1968 2 QB 710

REDUNDANCY PAYMENTS ACT 1967 S14(2)

REDUNDANCY PAYMENTS ACT 1967 S17

REDUNDANCY PAYMENTS ACT 1967 S7(2)

1 JUDGMENT delivered on the 15th day of July 1992by FINLAY C.J. [Hederman J. and McCarthy J. agr]

2 I have had the opportunity of reading the judgments about to be delivered by O'Flaherty J. and Egan J. in this case, and I am in agreement with those judgments and with the orders which theypropose.

3 It would appear to me necessary, however, that I should add some comments on the procedures which have been adopted in this case.

4 The claim is a claim brought by way of appeal on a question of law pursuant to section 11(2) of the Minimum Notice and Terms of Employment Act 1973, and pursuant to section 39(14) of the Redundancy Payments Act 1967, against a determination of the Employment Appeals Tribunal, dated the 14th October 1988.

5 Section 11 of the Minimum Notice and Terms of Employment Act 1973provides as follows:

6 2 "(1) Any dispute arising on any matter under this Act, other than a dispute arising on any matter under section 9 of this Act, shall be referred in the prescribed manner to the Tribunal.

7 (2) The decision of the Tribunal on any matter referred to it under this section shall be final and conclusive, save that any person dissatisfied with the decision may appeal therefrom to the High Court on a question of law."

8 Section 9 of the Act of 1973 deals with the rightof an employee to a written statement of his terms of employment and is irrelevant to this case.

9 Section 39(14) of the Act of 1967 provides as follows:

"The decision of the Tribunal on any question referred to it under this section shall be final and conclusive, save that any person dissatisfied with the decision may appeal therefrom to the High Court on a question of law."

10 The issue arising in this case under the Redundancy Payments Acts 1967to 1979constitutes a question referable to and referred to the Tribunal under section 39 of the Act of 1973.

11 The procedure for the bringing of these appeals is provided in Order 105 of the Superior Court Rules which provides

12 (a) that it should be brought by special summons

13 (b) that the summons shall state the decision of the Redundancy Appeals Tribunal apppealed against and thegrounds of the appeal and which provides a time limit, with a power in the court to extend it for the issue of the summons.

14 The summons in the instant case set out at paragraph 5 a number of grounds of appeal against the finding of the Tribunal, all of which are stated to be related to questions of law, though in some instances, at least, they would appear, though stated to be an error in law, to be directed against inferences raised by the Tribunal from facts found by them. The summons was supported by an affidavit sworn by Patrick Shanley, a trade union official, who had acted as the advocate on behalf of the Plaintiffs in the hearing before the Appeals Tribunal. This affidavit, in addition to exhibiting the determination of the Tribunal, which appears to be a necessary and appropriate thing to do, and setting out the identity of the parties to the action, contains a number of averments of fact dealing with the dispute between the parties, some of which, atleast, do not appear to have been placed in evidence before the Tribunal. In particular, the Tribunal's determination, which recites the evidence brought before it, and the findings made by its majority, does not appear to recite the giving of evidence by Mr. Shanley. It would appear that evidence before the Tribunal was given by a Mr. White who was an employee; by a Mr. Kelly who was the director and manager of the Defendant Company; by a Mr. Doherty who was the shop steward in the bakery; and by a Mr. McCafferty who was a bread checker employed in the bakery. Certain documents and correspondence were clearly also produced before the Tribunal and are referred to in the determination of theTribunal.

15 In the High Court, however, further affidavits were filed from John Doherty, the shop steward, who had given evidence before the Tribunal; by Patrick Swaine, a secretary of a branch of the Bakery andFoodworkers" Amalgamated Union, who had not given evidence beforetheTribunal; from a Mark Connaughton on behalf of the Defendants, who was an industrial relations executive employed by the Federated Union of Employers and who had not given evidence before the Tribunal; and by Mr. Kelly, the managing director, who had.

16 No objection was taken to these procedures, either in the High Court, or on the hearing of this appeal. The basis of the decision of the learned trial judge in the High Court, on the issues brought before him, namely, that the Tribunal was wrong in law in holding that no dismissal of the Plaintiffs had taken place, was clearly a determination of a question of law, and was in his judgment and in the judgments of O'Flaherty J. and Egan J. upholding that decision, with which I am in agreement, based on a consideration of the primary facts found by the Tribunal, and on the statutory provisions and legal principles applicable. The fact, therefore, that other evidence was adduced in the High Court and other matters clearly canvassed before the learned trialjudge, without objection from either party, in no way invalidates hisdecision.

17 It is of importance to point out, however, that having regard to the clear terms of the two sections providing for a final and conclusive decision by the Tribunal, subject only to an appeal to the High Court on a question of law, that what would appear to be the appropriate procedure is the summons as provided for in Order 105, which should state the decision being appealed against, the question of law which it is suggested was in error, and the grounds of the appeal, and that it should be supported only by an affidavit or affidavits exhibiting the determination of the Employment Appeals Tribunal, including any findings of fact or recital of evidence made by it, and, in effect, identifying the parties and the grounds on which the aggrieved party seeks a determination of a question of law. There does not appear to be any room, however, in the procedure, having regard to the terms of the two sections involved,for repeating and, in particular, for adding to or supplementing evidence which was given before the Appeals Tribunal concerning the circumstances of the dispute which had been referred to thatTribunal.

18 jud105

19 JUDGMENT delivered on the 15th day of July 1992by O'FLAHERTY J. [Hederman J. and McCarthy J. agr]

20 In 1987 the plaintiffs/respondents were full-time employees of Model Bakery Limited ("the bakery") at Letterkenny, Co. Donegal. They were members of the Bakery and Food Workers" Amalgamated Union ("the union") of which union Mr. Patrick Shanley was general secretary and Mr. John Doherty was a shop steward. Mr. William Kelly was a director of the bakery who it appears took all decisions on its behalf which are relevant to this litigation.

21 On April 6th, 1987, the Labour Court issued a recommendation for a wage increase of 5 per cent in respectof employees in the bakery trade, including the plaintiffs. The increase was to have effect from the 1st April, 1987. The Labour Court recommendation did not include an "inability to pay clause", the Labour Court noting that in the past this matter has been negotiated at local level and that the parties exchanged letters on the inability to pay issue and considered that that was the appropriate way to deal with the problem. That was why it did not recommend inclusion of a specific clause dealing with "inability to pay".

22 In subsequent correspondence between the union and the bakery inability to pay was never invoked.

23 It was not, however, until September 20th, 1987, following a threat of industrial action by the union that the wage increase was paid. But only from that date, September 20th: it was not paid retrospectively from April 1st. This point remained an area of contention.

24 At the end of September, 1987, an unofficial striketook place at the bakery premises. This had nothing to do with the matter of wages but had followed on the...