Gokul and Others v Aer Lingus Plc

• Jurisdiction: Ireland
• Judge: Mr. Justice Hogan
• Judgment Date: 09 September 2013
• Neutral Citation: [2013] IEHC 432
• Court: High Court
• Date: 09 September 2013

[2013] IEHC 432

THE HIGH COURT

[No. 123 MCA/2013]

Gokul & Ors v Aer Lingus PLC

IN THE MATTER OF SECTION 15(6) OF THE PROTECTION OF EMPLOYEES (FIXED TERM WORK) ACT 2003

BETWEEN

ARON GOKUL, KAREN O'MAHONY, GER PETIT, KAREN HOURIHAN AND ROBBIE O'MEARA

APPLICANTS/APPELLANTS

AND

AER LINGUS PLC

RESPONDENT

RSC O.12 r2A(A)

PROTECTION OF EMPLOYEES (FIXED TERM WORK) ACT 2003 S2

PROTECTION OF EMPLOYEES (FIXED TERM WORK) ACT 2003 S14(3)

PROTECTION OF EMPLOYEES (FIXED TERM WORK) ACT 2003 S15

RSC O.84(C)

RSC O.84(C) r2(5)(C)

RSC O.122 r7

WHITE v DUBLIN CORPORATION 2004 1 IR 545

BLEHEIN v MIN FOR HEALTH & CHILDREN 2009 1 IR 275

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

CONSTITUTION ART 15.2.1

COOKE v WALSH 1984 IR 710

MULCREEVY v MIN FOR ENVIRONMENT 2004 1 IR 72

MJBCH LTD (IN LIQUIDATION), IN RE UNREP FINLAY GEOGHEGAN 15.4.2013 2013 IEHC 256

DUNMANUS BAY MUSSELS LTD v ACQUACULTURE LICENCES APPEALS BOARD & ORS UNREP HOGAN 10.5.2013 2013 IEHC 214

O'HIGGINS v LABOUR COURT & UNIVERSITY COLLEGE DUBLIN UNREP COOKE 8.11.2013 2013 IEHC 508

COMPANIES ACT 1963 S222

PRACTICE AND PROCEDURE

Time limits

Appearance - Time limits - Extension of time - Jurisdiction - Statutory appeal - Statutory interpretation - Rules of court - Whether rule of court mandating entry of appearance within specified time ousted jurisdiction to extend time - Whether general provision of rules of court permitting extension of time - In re MJBCH Ltd (In liquidation) [2013] IEHC 256, (Unrep, Finlay Geoghegan J, 15/4/2013) and Dunmanus Bay Mussels Ltd v Aquaculture Licences Appeals Board [2013] IEHC 214, (Unrep, Hogan J, 10/5/2013) applied - White v Dublin City Council [2004] IESC 35, [2004] 1 IR 545; Blehein v Minister for Health [2008] IESC 40, [2009] 1 IR 275; Cooke v Walsh [1984] IR 710; Mulcreevy v Minister for the Environment [2004] IESC 5, [2004] 1 IR 72 and O'Higgins v Labour Court [2013] IEHC 508, (Unrep, Cooke J, 8/11/2013) considered - Rules of the Superior Courts 1986 (SI 15/1986), O 12, r 2A, O 84C and O 122, r 7 - Protection of Employees (Fixed Term Work) Act 2003 (No 29), ss 2, 14 and 15 - Illegal Immigrants (Trafficking) Act 2000 (No 29), s 5 - Companies Act 1963 (No 33), s 222 - Constitution of Ireland 1937, Art 15 - Time for entry of appearance extended (2013/123MCA - Hogan J - 9/9/2013) [2013] IEHC 432

Gokul v Aer Lingus plc

Facts: The appellants were former employees of the respondent, who had been made redundant voluntarily. As part of the redundancy agreement, they were re-hired on varied terms of employment. The respondent had declined to include them as beneficiaries of a share scheme, contending they had not sufficient length of service of employment. The appellants had brought the matter to the Labour Court, which dismissed the claim for being statute barred under the Protection of Employees (Fixed-Term Work) Act 2003. The appellants now appealed.

Held by Hogan J, that the issue in the matter was whether the High Court possessed jurisdiction to allow an extension of time for the respondent to enter an appearance. The appellants argued that the Rules of the Superior Courts prescribed a strict time limit for doing so.

Granting permission for an extension of time, Hogan J stated that such a strict time bar would require primary legislation, and not a mere secondary piece of legislation such as the 1986 Rules. In any event, the Rules themselves granted a general discretion to extend time as the Court deemed suitable. ReMJBCH Ltd. (in liquidation) [2013] IEHC 256, Dunmanus Bay Mussels Ltd. v. Aquaculture Licence Appeals Board [2013] IEHC 214 applied.

1 1. The net question which is presented as a preliminary issue in the course of this statutory appeal from a decision of the Labour Court is whether this Court enjoys a jurisdiction to extend time for the delivery by the respondent of the appearance required by O. 12, r. 2A(a). While O. 12, r. 2A(a) stipulates that any such appearance shall be entered within eight days of the service of the appropriate originating notice of motion commencing the statutory appeal, it is common case that the respondent has failed to do so. In essence, the issue is whether this omission is fatal to the respondent's right to defend the proceedings and to be heard on the appeal.

2 2. The issue arises in this way: the appellants are all former employees of Aer Lingus who commenced employment with that company on fixed term contracts on various dates between 2004 and 2005. They were subsequently appointed with permanent contracts with effect from 2006 and 2007. In late 2008, Aer Lingus experienced severe trading difficulties and the appellants' contracts were terminated by reason of voluntary redundancy. This was done as part of a scheme whereby employees could leave their employment and return on revised pay and conditions. Each of the appellants received a redundancy lump sum and it appears they also signed a document waiving all claims against Aer Lingus in respect of the termination of that employment.

3 3. Aer Lingus had earlier become a public limited company in 2006 as a result of its privatisation. At that time it introduced a share ownership scheme which was allocated to employees through an Employee Share Ownership Trust ("ESOT"). It appears that the distribution of the shares was predicated on each of the employees having spent one year in continuous employment. It was determined that the appellants were not eligible to participate in the scheme because they did not have the requisite service in 2006 as they were on fixed termed contracts of employment at that time. The appellants then contended that the failure to make such allocations amounted to discrimination within the meaning of Protection of Employees (Fixed Term Work) Act 2003 ("the 2003 Act").

4 4. The matter was considered by the Labour Court which gave its decision on 4 ^th April, 2013. The Court found that even if the appellants were in fact fixed term employees within the meaning of s. 2 of the 2003 Act, it was not necessary to rule on the merits of the dispute for the simple reason that the claim was statute barred for the purposes of s. 14(3) of the 2003 Act. The claim was accordingly dismissed. The appellants now appeal to this Court pursuant to s. 15 of the 2003 Act.

5 5. This is the general background against which this matter comes before the court. This appeal commenced by means of an originating notice of motion and grounding affidavit on 30 ^th April, 2013. Aer Lingus contends that the appeal is misconceived because it is out of time.

6 6. As it happens, this question does not directly arise for consideration quite at this moment because I am first required to determine an antecedent issue, namely, the contention by the appellants that Aer Lingus are precluded from raising such an issue because they themselves have not complied with the requirements described by O. 12 r. 2A(a) in that no appearance to this appeal was filed by Aer Lingus within the eight days specified by this sub-rule. Order 12, rule 2A(a) provides:-

"A respondent in proceedings commenced by originating notice of motion pursuant to O. 81 A, O. 84B or O. 84C, to whom such notice of motion has been given, shall enter an appearance to such notice of motion in the form No. 9 in Appendix A Part 2 within eight days of the service of the notice of motion. Where a respondent is given notice of such motion after the date first fixed for the time of the notice of motion, he shall enter an appearance within the time fixed for the court for that purpose. A respondent in such proceedings shall not, without the leave for the court be entitled to be heard in such proceedings unless he has entered an appearance." (emphasis supplied)

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