Dennigan & Company v Rights Commissioner Jim O'Connell

JudgeMr. Justice Richard Humphreys
Judgment Date25 April 2016
Neutral Citation[2016] IEHC 665
Docket Number[2015 No. 688 J.R.]
CourtHigh Court
Date25 April 2016

[2016] IEHC 665



Humphreys J.

[2015 No. 688 J.R.]




Employment – Labour law – Organisation of Working Time Act 1997 – Decision to re-list the case – Judicial review – Grounds for arguability

Facts: The applicant sought leave by way of the present judicial review application in relation to a decision of the first named respondent whereby the first named respondent had adjourned the hearing of the employment claim filed by the notice party against the applicant. The applicant contended that in the absence of the notice party at the scheduled hearing, the decision to re-list the matter had been made without any rational basis.

Mr. Justice Humphreys refused to grant leave to the applicant. The Court found that the case set up by the applicant was not arguable and lacked substantial grounds to warrant the grant of leave. The Court held that the decision taken by the first named respondent was just and cogent and reflected its intent as the first named respondent had already apprised the applicant that he would dismiss the scheduled hearing for the failure to prosecute in the absence of the applicant after hearing from the notice party. The Court opined that a verbal slip by the decision-maker should not be taken against him to the effect of depriving the notice party to offer an explanation for his non-attendance at the scheduled hearing. The Court found that the notice party's absence was neither intentional nor prejudicial to the interest of the applicant in any way and thus, the remedy of judicial review was inappropriate in those circumstances.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 25th day of April, 2016

The chain of events which led to this leave application being made begins for present purposes with an apparently unrelated event on 9th March, 2015, the decision to appoint Mr. Alan Haugh, B.L., as deputy chairman of the Labour Court.


On 29th April, 2015 a claim for unpaid annual leave and payment under the Organisation of Working Time Act 1997 (No. 155728-wt-15) was submitted by the notice party, the employee in this case, against the applicant employer. The claim listed the worker's legal representative as Mr. Haugh with an address at Merchant's Quay Chambers. It would appear that no solicitor was involved in the claim and therefore that papers or notices to be served in the matter would be served on Mr. Haugh directly. Mr. Alan J. Crann, B.L., who appeared for the respondents, informed me that this sort of practice, whereby barristers deal with applications of this kind before rights commissioners without any involvement by solicitors, is ‘ not unusual’. The appropriateness or otherwise of such a practice does not arise on this application, but either way it clearly has at least some disadvantages, as will shortly become apparent.


On 5th May, 2015 the Labour Relations Commission (later to be renamed the Workplace Relations Commission) notified the applicant of the claim.


On 3rd June, 2015 the applicant was notified that a hearing would take place on the 1st of July, 2015. Adjournments were said to be granted only in exceptional circumstances. However the notice party requested an adjournment, and on 15th June, 2015 the applicant was notified that the hearing would take place on a date to be fixed.


On 4th August, 2015 the applicant was notified of a hearing date on 10th September, 2015. The letter stated that the hearing would be postponed only in exceptional circumstances and that a request for postponement must be supported in writing with relevant documents in advance.


While Mr. Haugh's appointment as deputy chairman was decided upon in March, 2015, he did not take up the position immediately, and I am now told that he in fact took up the position in September, 2015. That presumably explains why Mr. Haugh continued to act in labour relations litigation in the intervening period.


What then appears to have happened, based on what the notice party stated, as set out in the exhibited correspondence, is that on formally taking up the rôle, Mr. Haugh had to cease acting in labour law disputes. However based on what the applicant states, it would appear that he did not notify the applicant of the date for the hearing, which had been communicated to him as legal representative rather than to the applicant directly, or to any solicitor (because there was none). Of course I have not heard from Mr. Haugh but in terms of the material before me there is nothing to contradict the applicant's version of events as so set out.


On 10th September, 2015, the appointed hearing date, Mr. Jamie McAuliffe solicitor for the applicant says that at 11a.m. the applicant's representatives entered the conference room at the appointed venue, the Silver Springs Hotel in Cork. The first named respondent, the rights commissioner, was present. At 11.10a.m., the first named respondent indicated he would begin without the notice party, who had not appeared at that point. Mr. McAuliffe states that the rights commissioner stated that he would dismiss the application for failure to prosecute, and that a written decision would issue in due course. As it happens no written decision was ever issued. His evidence in this regard is reinforced by affidavits from the other representatives of the applicant, Ita McDonagh and Aiden Hand.


By contrast, Mr. O'Connell, the rights commissioner, states (affidavit of 28th January, 2016, para. 12) that he informed the representatives of the applicant that unless he heard from the notice party he would issue a decision based on the notice party's failure to prosecute the application within 6 to 8 weeks.


I will deal separately below with the question of this conflict of evidence.


On 11th September, 2015, the notice party sent two emails timed at 12.51 and 13.00 notifying the respondents that Mr. Haugh had taken up his role as deputy chairman of the Labour Court and could no longer represent the notice party. He stated that further correspondence should be sent to him, and that Mr. Haugh had failed to notify him of the date for the hearing.


On 14th September, 2015 Mr. O'Connell made a note on an ‘attendance docket’ that ‘ claimant not informed - changed solicitor’ ( sic) (para. 17 of his affidavit). He accepted this reason and decided to adjourn the hearing (para. 18).


On 1st October, 2015, the Labour Relations Commission was reconstituted as the Workplace Relations Commission.


On 12th November, 2015, the matter was listed by the Workplace Relations Commission for 16th December, 2015.


On 7th December, 2015 the present ex parte application for leave to seek judicial review was commenced. I directed that the leave application should be made on notice.


On 9th December, 2015, the Workplace Relation Commission wrote to the applicants indicating that the practice is that where a party does not appear the rights commissioner can issue a determination ‘ dismissing the case for want of prosecution’ unless the absent party is heard from within a reasonable time.


The respondent agreed not to substantively process the matter further pending my determination of the leave application.


On 21st December, 2015 the applicant furnished an amended statement of grounds, without seeking leave to do so.


The essential point made by the applicant is that as Mr. Nathan Reilly B.L. for the applicant put it in his very able submission, ‘ even if the Rights Commissioner intended something else, what he said was unequivocal’ and the notice party's claim has already been dismissed. The rights commissioner is therefore functus officio and cannot purport to adjourn and further consider the claim.

What approach should be taken for leave purposes to the alleged conflict of evidence regarding what was said at the hearing?

Not all of the evidence relating to the issue of ‘dismissal’ versus ‘adjournment in contemplation of dismissal unless explained’ is in fact in conflict. The rights commissioner has given evidence which clearly indicates that his intention was not to dismiss the application there and then. He has also given evidence regarding his general practice where there is a non-appearance, which is along the lines on which he states that he proceeded in this case. Furthermore I have been given evidence that a note was placed on the file stating that the matter had been adjourned. These matters have not been contradicted either adequately or at all.


In replying submissions (para. 3.3), the applicant says that ‘ dismiss[al of] the case for want of prosecution … is standard procedure when a party doesn't turn up’. Unfortunately this submission is simply incorrect in the light of the evidence. The standard procedure before Rights Commissioner O'Connell is that the matter is adjourned in contemplation of dismissal unless an explanation for non-attendance is furnished. That has been clearly established and is uncontradicted.


Insofar as the conflict of evidence as to what exactly was said at the hearing is concerned, Mr. Reilly suggests that I should determine arguability on the assumption that the applicant's averments are correct ( Gordon v. D.P.P., Unreported, Supreme Court, Fennelly J., 7th June 2002). Mr. Crann however submits that the court should have regard to the answers of the respondent in accordance with Joel v. D.P.P. [2012] IEHC 295 (9th July, 2012) per Charleton J. at para.13: ‘[a]nything can be argued, that is the reality but the courts have said that, where other parties are on notice of the application, the court is also entitled to look at any answers that are given to any points that are made and to assess on that...

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