Brady v Minister for Social Protection

JurisdictionIreland
CourtCourt of Appeal (Ireland)
JudgeMR. JUSTICE MICHAEL PEART
Judgment Date03 July 2019
Neutral Citation[2019] IECA 178
Date03 July 2019
Docket NumberNeutral Citation Number: [2019] IECA 178

[2019] IECA 178

THE COURT OF APPEAL

Peart J.

Peart J.

Edwards J.

Whelan J.

Neutral Citation Number: [2019] IECA 178

Record Number: 2016/590

BETWEEN:
JADE BRADY

AND

CATHAL O'REILLY
APPLICANTS/APPELLANTS
- AND -
MINISTER FOR SOCIAL PROTECTION
RESPONDENT/DEFENDANT
- AND -
STEPHEN TENNANT (RECEIVER OF WHITE SANDS HOTEL LIMITED)
NOTICE PARTY

Judicial review – Award – Unfair Dismissals Acts 1977 to 2007 – Appellants seeking an order of certiorari to quash the decision of the respondent – Whether an award made to each of the appellants under the Unfair Dismissals Acts 1977 to 2007 was a wage-related payment for the purposes of the Insolvency Payment Scheme provided for under the Protection of Employees (Employers Insolvency) Act 1984

Facts: The appellants, Ms Brady and Mr O’Reilly, appealed to the Court of Appeal from the order of the High Court (Baker J) dated 15th November 2016 refusing the appellants’ application for certain reliefs by way of judicial review, including an order of certiorari to quash the decision of the respondent, the Minister for Social Protection, dated 24th November 2014, determining that an award made to each of the appellants by the Circuit Court on the 18th October 2013 under the Unfair Dismissals Acts 1977 to 2007 was a wage-related payment for the purposes of the Insolvency Payment Scheme provided for under the Protection of Employees (Employers Insolvency) Act 1984 and accordingly was subject to a maximum of €600 per week for a period of no more than 104 weeks. The appellants submitted that the trial judge erred in law and in fact in: (a) finding that the award was made by the Circuit Court to the appellants were ones to which s. 6(4)(a) of the Act applied when they were not debts that were calculated or may be calculated by reference to wage; (b) holding that the respondent was entitled to fashion a formula of her own design, and in finding that while it could not readily be said that the awards were made by reference to the remuneration of the employees, that the awards may be so understood or reformulated; (c) holding that the Minister had power to devise her own formula or adopt her own methodology to guide her in the exercise of statutory discretion, and by reference to which she could make her decision and that the Oireachtas must have intended such an implied power, as absent such an implied power the legislative scheme could often be incapable of being applied in a particular case; (d) holding that the formula which was devised was reasonable and that it was applied in a reasonable and consistent manner; (e) holding that the reason that the appellants’ co-employees who applied under the Insolvency Payments Scheme where awarded the full amount of their claims, was because in each case the wages of each of those applicants was less than the statutory maximum of €600 applicable to a claim for a refund under the Scheme; (f) holding that, had the Minister included additional sums, which the appellant claimed ought to have correctly been included in the respondent’s IP2 Form, the calculation would have resulted in a smaller award for fewer weeks than those which resulted from the division of the Circuit Court award by the identified gross figures; and (g) finding that the awards of the Circuit Court (under the Unfair Dismissals Acts) must relate to a loss of remuneration by the employee and that the awards were capable of being understood by the Minister as arising from loss of remuneration.

Held by Peart J that neither of the awards came within s. 6(4) properly construed and understood; each was a “debt” which was therefore within the mandatory provision of s. 6(1) of the Act and therefore payable in full from the Fund. Peart J held that the discretion which the Minister had under that provision in relation to forming an opinion as to the amount “which is or was due to the applicant in respect of that debt” did not extend to deciding on a figure that she considered should be paid to the appellants; it was limited to deciding the amount “due” and that “due” amount, in these cases, could only be the amount awarded by the President of the Circuit Court. Peart J held that the construction of the relevant provisions of s. 6 led to the further conclusion that the devising of a formula such as that devised by the Minister for working out the number of weeks represented by the awards in cases such as these, in order to establish whether or not the amount awarded exceeds the limit of €600 per week, is not only an unnecessary exercise, but one that is not contemplated by the statutory scheme when properly construed. Since in Peart J’s view it was not necessary to have devised or employed such a formula, it was unnecessary to consider its vires in the light of the judgment of Fennelly J in McCarron & ors v Kearney & ors [2010] 3 IR 302.

Peart J held that the appeal would be allowed.

Appeal allowed.

JUDGMENT OF MR. JUSTICE MICHAEL PEART DELIVERED ON THE 3RD DAY OF JULY 2019
1

This is an appeal from the order of the High Court (Baker J.) dated 15th November 2016 refusing, for reasons stated in her judgment delivered on the 13th October 2016 ( [2016] IEHC 553) the appellants” application for certain reliefs by way of judicial review, including an order of certiorari to quash the decision of the Minister for Social Protection (‘the Minister’) dated 24th November 2014 determining that an award made to each of the appellants by the Circuit Court on the 18th October 2013 under the Unfair Dismissals Acts 1977 to 2007 was a wage-related payment for the purposes of the Insolvency Payment Scheme provided for under the Protection of Employees (Employers Insolvency) Act, 1984 (‘the 1984 Act’) and accordingly was subject to a maximum of €600 per week for a period of no more than 104 weeks.

2

In the High Court there was a third applicant, Keith Ramsey, but he has not lodged any appeal to this Court against the said order, hence I have not named him in the title hereof.

3

The determination of this appeal turns on the proper construction of certain provisions of s. 6 of the 1984 Act which sets out certain rights of employees under the Insolvency Payments Scheme (‘the Scheme’) where the employer has become insolvent. In the present case it is not in dispute that the appellant's employer (‘the company’) was insolvent and that the provisions of s. 6 of the 1984 Act apply.

4

Before setting out the relevant provisions, I will respectfully adopt the helpful concise summary of relevant background facts appearing in the judgment of the trial judge at paras 2–10 of her judgment, as follows:

‘2. The applicants were all employed by the White Sands Hotel Limited in Portmarnock, Co. Dublin and in each case their employment was terminated on or about 21st February, 2010 on the grounds of a purported redundancy. These three applicants, together with other persons not relevant to this judgment, brought proceedings under the Unfair Dismissals Acts 1977 – 2011 to the Rights Commissioner Service, and subsequently appealed the decision of the Rights Commissioner dismissing their claim. The EAT, on appeal, made a determination on 29th May, 2013 that the applicants had been unfairly dismissed, and financial awards were made in respect of each of them.

3. Each of these three applicants appealed the determination of the EAT to the Circuit Court with regard to the quantum of the award.

4. Before the appeals to the Circuit Court came on for hearing, the notice party had been appointed receiver of the Company on 5th July, 2013. Neither he, nor the former employer of the applicants, took any part in the proceedings before the Circuit Court.

5. The President of the Circuit Court delivered his decision on 18th October, 2013, and increased the awards substantially. In each case, the President of the Circuit Court made his award in round figures, €20,000 to the first applicant, €60,000 to the second applicant, and €70,000 to the third applicant. In each case the amounts directed to be paid were less than the maximum jurisdiction of the Circuit Court under the Unfair Dismissals Acts. The decision of the Circuit Court made no express reference to the basis of the calculation and the awards were not expressly calculated by reference to the remuneration of the applicants.

6. Oral evidence had been offered by the applicants to the Circuit Court of their actual financial loss and future prospective loss, and each of them also gave evidence of the effect of the dismissal on their personal and professional lives.

7. The perfected order of the Circuit Court was then transmitted to the receiver who submitted an application under s. 6 of the Protection of Employees (Employers” Insolvency) Act, 1984, doing so on the relevant statutory form called an IP2. Each of the applicants signed the form as a declaration.

8. On or about 30th April, 2014, the Minister for Social Protection made a determination that the applicants were entitled to payments under the Scheme in amounts less than the amounts directed to be paid by the Circuit Court. It was accepted that the applicants were entitled to the benefit of the Scheme, but the Minister reduced the amounts payable to them by reference to a calculation linked to the then relevant statutory limit of €600 per week on entitlement to redress under the Scheme.

9. The Minister was requested to, and did, engage in a review of her decision which was duly made on 25th November, 2014, but did not alter her view.

10. No provision exists in the legislation for an appeal from the decision of the Minister, and the applicants have brought application for an order of certiorari quashing that decision, primarily on the ground that the Minister misdirected herself in law in the means by which she calculated the maximum amounts to be paid to each of the applicants.

5

It is important to note at the outset that the appellants” claims were first brought to the...

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