Galway-Mayo Institute of Technology v Employment Appeals Tribunal

• Jurisdiction: Ireland
• Judge: Mr. Justice Charleton
• Judgment Date: 20 June 2007
• Neutral Citation: [2007] IEHC 210
• Court: High Court
• Docket Number: [No. 601 J.R./2005]
• Date: 20 June 2007

GALWAY-MAYO INSTITUTE OF TECHNOLOGY v EMPLOYMENT APPEALS TRIBUNAL

JUDICIAL REVIEW

BETWEEN

GALWAY-MAYO INSTITUTE OF TECHNOLOGY

APPLICANT

AND

EMPLOYMENT APPEALS TRIBUNAL

RESPONDENT

AND

HELENA PIDGEON AND HELEN THORNTON

NOTICE PARTIES

[2007] IEHC 210

[No. 601 J.R./2005]

[No. 602 J.R./2005]

THE HIGH COURT

Abstract:

Judicial review - Fair procedures - Audi alteram partem - Certiorari - Redundancy Payments Acts, 1967 to 2003 - Whether the applicant received a fair hearing from the respondent.

The applicant sought an order of certiorari by way of judicial review quashing two decisions of the respondent regarding redundancy payment claims brought by two of the applicant’s former employees, who were the notice parties to these proceedings. The applicant claimed that it did not receive a fair hearing from the respondent as the respondent determined the issue of redundancy payments having regard to the provisions of the Protection of Employees (Part-Time Work) Act, 2001 despite the fact that this Act was not referred to by any of the parties in their written submissions. Both parties before the respondent centred their submissions on the interpretation of the Redundancy Payments Acts 1967 to 2003. The parties initially agreed that the case should proceed by way of written legal submissions only but later requested an oral hearing, which was denied.

Held by Charleton J. in quashing the decisions of the respondent: That the respondent, in basing its decision on a remedy created by an Act to which none of the parties had referred, and in respect of which the respondent may not ever have had jurisdiction to determine, and in failing to hear evidence on a point of determination as to objective justification (for treating part-time employees in a less favourable manner compared to full-time employees) on which the parties would have been entitled to call evidence, fell into error. Consequently, the decisions of the respondent regarding the payment of redundancy payments to the notice parties ought to be quashed.

Reporter: L.O’S.

Mr. Justice Charleton

1 This case concerns the right to be heard. In this application for judicial review, the applicant claims that it did not get a fair hearing from the respondent in deciding on redundancy payments claims brought by two of its former employees, who are the notice parties.

2 Fundamental to the correct dispensation of justice is the right of each party to communicate their case. If one party is deprived of that entitlement they will legitimately have a sense of grievance if a judicial decision goes against them. If one party is given an unfair advantage over the other in the way in which a judicial tribunal conducts its business, the same fundamental right in the due process of justice may be infringed. The touchstone for the administration of justice by any judicial body is that both sides be heard. This is done by giving them, as far as practicable, an opportunity to fairly present their case.

3 The ultimate powers of discovery of documents, examination and cross-examination by each side, the presentation of submissions, followed by the consideration of, and then delivery of, a reasoned judgment need not apply to the conduct of all forms of judicial, or quasi-judicial, tribunal. Some forms of fair procedure may require only that a party should be given notice of what the nature of the problem is and then given an opportunity to present a reply. Other forms of decision are so far reaching as to require what is, in effect, the adoption by the tribunal of all of the measures inherent in a plenary hearing or a criminal trial. Fundamental to any procedure, however, is the duty of the tribunal to identify the issue which it is tasked with deciding and to make available to the parties the means, which can be variable, whereby they may address that issue.

4 There are two notice parties to this case, Helena Pidgeon and Helen Thornton. Since their cases are the same, I am giving one judgment in respect of both. Both were employed in the Galway-Mayo Institute of Technology from 1993, in the case of Helena Pidgeon, and 1994 in the case of Helen Thornton, until their employment was terminated, in both cases, on the 31st August, 2003. I am not concerned in deciding the controversy relating to their redundancy payments. I understand that their issues with the applicant as to their redundancy payments have been disposed of to the satisfaction of all sides prior to this application being made to the court. Nonetheless, I need to refer to some of the issues which arose on the termination of their employment.

5 Both third parties were employed as lecturers in German studies. Their contracts of employment seem to imply that their position, which was part-time, and paid on an hourly basis, would allow them to work at least nine hours a week. However, the documents indicate that over the course of their nine or so years of employment the hours varied and that they were paid on a pro-rata basis depending on the hours they worked. These hours went up or down depending upon the number of students who wished to take the option of studying the German language. Unfortunately, numbers have been in decline in recent years. In the academic year 2001 to 2002, both the notice parties would have worked eleven hours per week. Then the number of students taking German declined so that only five hours tuition a week was required. Then the demand decreased even further until there was no need to have part-time lecturers in German at all.

6 Having been made redundant on the 31st August, 2003, both the notice parties brought a claim before the Employment Appeals Tribunal under the Redundancy Payments Acts1967 - 2001. Helena Pidgeon, in setting out her reasons for the application for redress to the respondent stated, on the appropriate application form, as follows:-

"[The] HR manager at GMIT, made no offer of redundancy payment prior to being contacted by the Employment Appeals Tribunal at the end of November, following an application by Helen Thornton, my colleague. Neither Helen nor myself have accepted a subsequent identical offer to us on 2nd December, (five months after receiving letters of notice) because the amount was not representative of our earnings over the nine years we both worked at GMIT. [The HR manager] agreed at our meeting that we should go to a Tribunal in the Spring and urged me to forward my application. He said there is no precedent for a redundancy claim such as ours, although during our meeting he did confer with his counterpart at DIT about redundancy payments made there over the summer. Helen and I appealed to the Tribunal to deal fairly and swiftly on matters our employer has failed [to address]."

7 The remedy sought on the form, therefore, was a payment which would reflect the earnings of the third parties and their service to the college over nine and ten years respectively. In essence, what was being said was that since they were working eleven hours per week in the year before they were made redundant, that to offer them a redundancy payment based upon five hours of work per week, based on the year they were made redundant, was unfair and contrary to the relevant Acts. As it happened, the respondent decided that issue in their favour; but not by interpreting the legislation that both parties had addressed before it.

8 The third schedule to the Redundancy Payments Act1967, as amended, sets out the calculation of the lump sum that is payable upon redundancy. The right to a redundancy payment arises upon losing your job by reason of the disappearance of your employment; as where a firm closes down or needs to reduce its workforce. Sometimes people can negotiate for a voluntary redundancy package and sometimes the lump sum payment to which an entitlement arises on a statutory basis may be the subject of collective negotiations: therefore, it can be seen as a floor of rights. Even that can disappear if a firm is wound up on insolvency, in which case the workers look to the State.

9 Schedule 3, in calculating a redundancy payment, provides:-

2 "1. The amount of the lump sum shall be equivalent to the aggregate of the following -

(a) the product of the employee's normal weekly remuneration and the number of years of continuous employment from the date on which the employee attains the age of 16 years with the employer by whom the employee was employed on the date of dismissal or by whom the employee was employed when the employee gave notice of intention to claim under s. 12, and

(b) a sum equivalent to the employee's normal weekly remuneration.

2 In calculating the amount of the lump sum the amount per annum to be taken into account shall be that obtaining under s. 4(2) on the Redundancy Payment Act,1979 at the time the employee was declared redundant."

10 Form T1-A issued by the Employment Appeals Tribunal is an elegant document. It allows claimants to tick boxes in respect of the statutory relief they are seeking; it requires them to give relevant dates; it takes the particulars of their employment; it gives them a space in which to indicate what the nature of their case was; and it gives them space in which they can write out the nature of their case. I have quoted this latter section already. When the case came on for hearing it was, very unusually, agreed by both sides that the right way to approach it was for the Employment Appeals Tribunal to take no evidence or oral submissions, but, instead, to decide the matter on the basis of written legal submissions. The core issue, as between an entitlement to a redundancy based upon the pay appropriate for five hours of employment or eleven hours of employment, seemed readily capable of being joined through written legal arguments only. This is what happened. These submissions,...