Capital Food Emporium (Holdings) Ltd v Walsh

• Jurisdiction: Ireland
• Judge: Mr Justice Max Barrett
• Judgment Date: 15 December 2016
• Neutral Citation: [2016] IEHC 725
• Docket Number: [2016 No. 29JR]
• Court: High Court
• Date: 15 December 2016

[2016] IEHC 725

THE HIGH COURT

Barrett J.

[2016 No. 29JR]

BETWEEN

CAPITAL FOOD EMPORIUM (HOLDINGS) LIMITED

(FORMERLY CAPITAL FOOD EMPORIUM LIMITED)

APPLICANT

– AND –

JOHN WALSH

FIRST RESPONDENT

– AND –

THE EMPLOYMENT APPEALS TRIBUNAL

SECOND RESPONDENT

– AND –

MAUREEN STEWART

NOTICE PARTY

Employment – Constructive dismissal from employment – S. 8 of the Unfair Dismissals Act 1977 – Notice of service – Technical error – Certiorari – Quod apropos Non Reorobo – O. 84, r. 21 of the Rules of the Superior Courts – Audi alteram partem – Delay.

Facts: The applicant sought an order of certiorari for quashing the recommendation of the Rights Commissioner for payment of a certain sum of money to the notice party for breach of Unfair Dismissals Act, 1977. The applicant also sought an order of certiorari for quashing the determination of the second respondent/Employment Appeals Tribunal (EAT) to the effect of enforcement of the Rights Commissioner's determination. The applicant contended that the decision of the Rights Commissioner and the EAT was made in absence of hearing and thus, it was in violation of the principle of audi alteram partem.

Mr. Justice Max Barrett refused to grant any relief to the applicant. The Court held that the second respondent/EAT had exercised its jurisdiction within powers prescribed under s. 8(4)(a) of the Unfair Dismissals Act, 1977 as amended by s. 7 (4)(a) of the Unfair Dismissals(Amendment) Act, 1993 in that there was an existence of a determination in favour of an employee which attained finality as the employer neither complied with that determination and nor filed an appeal against that determination within the statutory time-limit. The Court found that the conduct of the applicant in not attending any hearing before the Rights Commissioner and then EAT was not liable to be condoned even if there was some technical error concerning the name of the applicant. The Court held that there had been inordinate delay in bringing the present judicial review application by the applicant with no justification for such a delay.

JUDGMENT of Mr Justice Max Barrett delivered on 15th December, 2016.

I. Key Questions Arising

1 If a party and its representative do not turn up for an official hearing and the presiding officer is satisfied that there has been due notification of the hearing, is it a breach of constitutional or natural justice, or the audi alteram partem principle, for the hearing to proceed? If a party participates in proceedings to the extent that it acknowledges and accepts that those proceedings were rightly brought against it, can the party later allege that the proceedings were not so brought? These are key issues arising for resolution in the within application.

II. Background Facts

i. Ms Stewart's Work History.

2 In 1987, Ms Stewart started working at the restaurant in Arnott's department store on Henry Street, in Dublin City Centre. She commenced work as a catering assistant and rose ultimately to become a supervisor/cashier. In May, 2011, the restaurant in Arnott's was taken over and Ms Stewart became an employee of Capital Food Emporium Limited. Difficulties arose in the relationship between employee and employer which Ms Stewart, as will be seen later below, has previously established as having resulted in her constructive dismissal in February, 2012. Following her departure, Ms Stewart invoked the assistance of union officials at SIPTU in a bid to see what could be done about the state of affairs that had arisen between herself and her employer.

ii. The Workplace Relations Complaints Form.

3 With the benefit of SIPTU's advice, on 8th March, 2012, Ms Stewart completed a workplace relations complaints form in which she sought a recommendation under s.8 of the Unfair Dismissals Act 1977 from Mr Walsh, the first respondent, a Rights Commissioner. Among the details provided in the form are the following:

‘Employment Details….

My Work Address: Capital Foods Imporium

Address 2: Arnotts PLC

Address 3: Henry Street

Address 4: DUBLIN 1

Contact Name: Mr Michael Andrews….

Respondent/Employer's Full Legal Details

Name/Company: Mr Michael Andrews, General Manager

Trading as..: Clodagh McKenna Restaurants

Address 1: Arnotts PLC

Address 2: Henry Street

Address 3: Dublin 1.’

4 The workplace relations complaints form was submitted under cover letter of 12th March, 2012, from SIPTU to the Rights Commissioner Service. On the same date, SIPTU sent a copy of the form to the following person/address:

Mr Michael Andrews

Capital Food Imporium

t/a Clodagh McKenna Restaurants

Arnotts PLC

Henry Street

Dublin 1.

iii. Initial interactions with the Rights Commissioner Service.

5 On 22nd March, 2012, the Rights Commissioner Service wrote to SIPTU acknowledging receipt of Ms Stewart's complaint. On the same day, the Rights Commissioner wrote to advise the other side that, absent objection (possible under s.7(3)(b) of the Unfair Dismissals (Amendment) Act 1993), it would proceed to an investigation of the complaint made. This letter, headed ‘Re Clodagh McKenna Restaurants/Maureen Stewart’ was sent to the following person/address

Mr Michael Andrews

General Manager

Clodagh McKenna Restaurants

Arnotts PLC

Henry Street

Dublin 1.

6 On 5th April, 2012, an entity, it seems a partnership, known as “ESA Consultants”, whose official notepaper bears the following rubric ‘ employee relationship management | health and safety, employment law | safety education and training’ wrote to the Rights Commissioner Service. It is not clear to the courts whether ESA is a specialist firm of solicitors or is an entity offering some alternative form of workplace support services. However, under the notably generic heading ‘ Re: Clodagh McKenna Restaurants/Maureen Stewart’, ESA indicated as follows in its letter of 5th April:

‘We refer to your letter dated 22nd March 2012 regarding the above matters and we advise that we act on behalf of Capital Food Emporium Ltd.

We kindly request that any further correspondence in relation to these matters be issued directly to our offices at the above address. Please find enclosed an acceptance to a Rights Commissioner's Investigation…’.

7 What would any rational person make of such a letter? It appears to the court that any rational person would understand this letter to mean that when it came to Ms Stewart's complaint her employer was satisfied for the Rights Commissioner to proceed with the investigation at hand and that ESA Consultants were dealing with matters for the employer. A professional lawyer who read the letter would doubtless (a) have noted that ESA Consultants expressly stated themselves to be representing Capital Food Emporium Limited and (b) “put two and two together” and deduced, correctly, that the legal identity of Ms Stewart's employer was Capital Food Emporium Limited. But we are not all lawyers; and such a deductive exercise would not have advanced matters in any event. After all, the party against whom it was sought to make complaint (Ms Stewart's employer) had been notified of the complaint, had appointed ESA to act on its behalf in the complaints process, and had indicated to the Rights Commissioner Service that it had no objection to the matter proceeding to investigation.

8 On 26th June, 2012, it appears that the Rights Commissioner Service wrote to both SIPTU and ESA indicating that the investigation of Ms Stewart's complaint would be heard at 10 a.m. on 2nd August, 2012, at a stated venue. On 2nd August, 2012, Ms Stewart turned up for the hearing, presumably with her SIPTU representative. However, no-one turned up for the other side. This, the court was advised by counsel for Ms Stewart at hearing, is not un-typical, though off-hand it would seem a little un-typical for professional consultants not to appear for a client at a hearing. Be that as it may, however, on 2nd August, 2012, the Rights Commissioner satisfied himself that the standard notification letter had been sent to ESA and had not been returned by the postal authorities. Having so satisfied himself, the Rights Commissioner then proceeded to hear Ms Stewart's complaint. It was suggested before this Court that rather than just relying on the “paper trail” before him, the Rights Commissioner could and should have rung ESA to ask if they had got the letter of 26th June and enquired whether they were coming. There was and is no obligation of any nature on a Rights Commissioner so to do. The Rights Commissioner was fully entitled to have regard to the paper record, and he was fully entitled to proceed to hearing having satisfied himself, from the paper record, that a suitable letter of notification had been sent to ESA and not returned by the postal authorities.

iv. After the Rights Commissioner's Hearing.

9 After the hearing of 2nd August, 2012, there appear to have been continuing efforts by SIPTU to contact ESA, who proved strangely uncontactable. Eventually, on 15th August, 2012, a SIPTU official wrote the following letter to the Rights Commissioner under a heading that stated the relevant case number:

‘Dear Mr Walsh

Further to the above hearing where neither the employer, nor their Representative showed at the hearing.

I have tried on several occasions to contact the Company Representatives ESA Consultants and have repeatedly got no answer from their telephone number [number stated] being told number not in use.

I would appreciate if you would issue your recommendation on this matter. The Company is Capital Food Emporium Limited T/A Clodagh McKenna Restaurants. The [affected SIPTU] member's name is Ms Maureen Stewart.

Thanking you…’

10 On 6th September, 2012, the Rights Commissioner issued his recommendation. This notes at the outset that ‘ The Rights Commissioner Service of the Labour Relation Commission advised the employer of the date...