Bondarenko v The Employment Appeals Tribunal

• Jurisdiction: Ireland
• Judge: Mr. Justice Binchy
• Judgment Date: 31 May 2019
• Neutral Citation: [2019] IEHC 578
• Court: High Court
• Docket Number: Record No. 2017/307JR
• Date: 31 May 2019

[2019] IEHC 578

THE HIGH COURT

JUDICIAL REVIEW

Binchy J.

Record No. 2017/307JR

BETWEEN

JURIJ BONDARENKO

APPLICANT

AND

THE EMPLOYMENT APPEALS TRIBUNAL

RESPONDENT

AND

KEEGAN QUARRIES LIMITED

NOTICE PARTY

Judicial review – Employment – Reinstatement – Applicant seeking orders of certiorari quashing a decision of the respondent – Whether it would work a greater injustice to permit the applicant to recover twice in respect of his dismissal

Facts: The applicant, Mr Bondarenko, by way of judicial review, sought orders, inter alia, of certiorari quashing a decision of the respondent, the Employment Appeals Tribunal, dated 20th March, 2017, by which decision the respondent had declined to make an order, in favour of the applicant, implementing the recommendation of a Rights Commissioner made on 30th September, 2015, whereby the Rights Commissioner recommended the reinstatement of the applicant to his employment with the notice party, Keegan Quarries Ltd, with effect from the date of his dismissal, 19th July, 2014. The respondent did not participate in the proceedings, leaving it to the notice party to oppose the application. In bringing the proceedings, the applicant relied on the terms of s. 8(4)(a) of the Unfair Dismissals Act 1977, and s. 8(6)(a) of the Terms of Employment (Information) Act 1994. Those sections were repealed with effect from 1st October, 2015, by s. 80(1)(g) of the Workplace Relations Act 2015, which was in turn amended, before it was commenced, by s. 20(1)(i) of the National Minimum Wage (Low Page Commission) Act 2015. However, the applicant argued that those amendments did not disentitle him to rely on s. 8(4)(a) of the 1977 Act and s. 8(6) of the 1994 Act, because, inter alia, he had already acquired rights under those sections prior to their repeal.

Held by the High Court (Binchy J) that, in the unusual circumstances of this case, notwithstanding that Binchy J had found that the respondent acted ultra vires, in the exercise of his discretion, he considered that he should not grant the order for certiorari sought by the applicant, nor any of the other reliefs sought by the applicant, as to do so would be to facilitate the applicant recovering damages twice from a single dismissal from employment. Binchy J noted that, if it seemed unfair that this left the applicant with the lesser of two remedies, i.e. the compensation for unfair dismissal determined by the Labour Court in the sum of €42,000, as distinct from an order requiring his reinstatement, which may have a greater financial value, then the applicant needed to bear in mind that he could have chosen to apply to enforce the latter and more substantial remedy as against the notice party much earlier than he did, and well in advance of the hearing before the Labour Court. Binchy J also observed that the order of the Labour Court was one made following a full consideration of the merits of the case, and was more likely to represent a fairer outcome for both parties.

Binchy J held that the order for certiorari would be refused.

Order refused.

JUDGMENT of Mr. Justice Binchy delivered on the 31st day of May, 2019

1 By these proceedings, the applicant, by way of judicial review, seeks orders, inter alia, of certiorari quashing a decision of the respondent dated 20th March, 2017, by which decision the respondent had declined to make an order, in favour of the applicant, implementing the recommendation of a Rights Commissioner made on 30th September, 2015, whereby the Rights Commissioner recommended the reinstatement of the applicant to his employment with the notice party with effect from the date of his dismissal, 19th July, 2014. The respondent did not participate in these proceedings, leaving it to the notice party to oppose the application.

Background

2 The applicant brought claims against the respondent pursuant to the provisions of the Unfair Dismissals Act 1977 (as amended) (the ‘Act of 1977’), the Terms of Employment (Information) Act 1994 (as amended) (the ‘Act of 1994’), the Organisation of Working Time Act 1997 (the ‘Act of 1997’), and other employment law statutes. Simultaneously, the applicant also brought the same claims, in identical terms, against another company, Keegan Precast Limited, a company which may loosely be described as a sister company of the notice party. The notice party maintains that it was originally the employer of the applicant, but that in July, 2011, the activities of the notice party were transferred to Keegan Precast, and that at that time all the employees of the notice party were transferred to Keegan Precast as part of a transfer of the undertaking of the notice party to Keegan Precast.

3 The applicant, however, does not accept that he was an employee only of the notice party. In his affidavit of verification grounding these proceedings, the solicitor for the applicant, Mr. Richard Grogan, exhibits correspondence to the applicant from both companies in the form of a letter from the notice party to the applicant of 20th June, 2014, and another letter to the applicant of 5th August, 2014, from Keegan Precast. The letter from the notice party of 20th June, 2014, is headed ‘letter of warning’ and the letter from Keegan Precast of 5th August, 2014, is headed ‘meeting’ and is in reply to a letter received from the applicant. In this latter, Keegan Precast replies to a letter received from the applicant in relation to his dismissal, denying that a dismissal had occurred.

4 Mr. Grogan also exhibits certain correspondence apparently sent by the applicant to the notice party whereby on 18th August, 2014 he made a request pursuant to s. 4 of the Data Protection Act 1988 (as amended), and specifically requests a copy of his contract of employment and other documents related to his employment. Another document headed ‘notice for particulars’ and dated 16th July, 2014, and addressed to the notice party, is also exhibited. This document was sent by the solicitors for the applicant to the notice party, and sought, inter alia, a copy of the applicant's contract of employment, particulars of the terms and conditions of employment of the applicant, as required by s. 3 of the Act of 1994, and also sought an explanation as to why no such particulars had previously been furnished to the applicant as required by s. 3 of that Act. Other information was also requested in this notice. It appears that the solicitors for the applicant subsequently made a complaint to the Data Protection Commissioner arising out of the failure of the notice party to respond to these requests (or alternatively, on the basis that any response received was inadequate – it is not clear from the documentation exhibited which is the case), but that ultimately this complaint may have petered out because the notice party was unable to locate the applicant's file.

5 In any case, according to the applicant, no response was received to these requests for information. It is not surprising, therefore, that the applicant claimed against both companies; if there is uncertainty as to the identity of his employer, he can hardly be criticised for advancing claims against both entities in the expectation that the issue will resolve itself in the course of the processing of the claims. In the event, however, this lack of clarity as to whether the applicant was employed by one, other or both companies is the root cause of this dispute.

6 It is not clear from the documentation exhibited how or when claims were served upon the companies by the solicitors for the applicant. However, it has not been suggested by the notice party that it did not receive notice of the claim. An affidavit in reply to the affidavit of Mr. Grogan was sworn on behalf of the notice party by a Mr. Paul Moore of Malone and Martin Solicitors in which he avers that, due to inadvertence, his firm was not aware that there were two sets of claims, one against the notice party and one against Keegan Precast. Although he does not say so expressly, it is clear from his affidavit that he understood that his firm had been instructed on behalf of Keegan Precast, and neither he nor the notice party were aware for some considerable time that there was a separate series of claims against the notice party. Accordingly, his firm came on the record on behalf of Keegan Precast only.

7 The Rights Commissioner then allocated a hearing date for the claims of 13th July, 2015. This date presented a difficulty, both for Mr. Moore and his firm, and their client, Keegan Precast. By coincidence, they were involved in preparation for a trial in the High Court which was due to commence the day following, on 14th July, 2015. Mr. Moore avers that, on this basis, he wrote to the Rights Commissioner and requested an adjournment of the hearing before the Rights Commissioner, but this application was refused. Accordingly, Mr. Malone avers, his firm could do no more than arrange to have a trainee attend the hearing as a note taker only and they informed the Rights Commissioner that she would attending in this capacity only. Accordingly, the hearing proceeded before the Rights Commissioner, as against both companies on 13th July, 2015, in the absence of any appearance by or any representation on behalf of Keegan Precast or the notice party.

8 The Rights Commissioner heard the claims and issued determinations as against both companies on 30th September, 2015. As mentioned above, these recommendations included, inter alia, a recommendation that the applicant be reinstated to his employment. The recommendations were in identical terms in relation to each company so that the reinstatement of the applicant was recommended in relation to each company. In the case of both the claim under the Act of 1977 and the Act of 1994, in relation to each company, the Rights Commissioner states that the claimant was employed as a general operative from 4th July, 2005 to 19th July, 2014,...