Mc Kernan -v- Employment Appeals Tribunal, [2008] IEHC 40 (2008)

Docket Number:2006 767 JR
Party Name:Mc Kernan, Employment Appeals Tribunal
Judge:Feeney J.
 
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THE HIGH COURT

JUDICIAL REVIEW

[2006 No. 767 J.R.]

BETWEEN

PATRICK McKERNAN

APPLICANT

AND

THE EMPLOYMENT APPEALS TRIBUNAL

RESPONDENT

AND

CORK CITY COUNCIL

NOTICE PARTY

Judgment of Mr. Justice Kevin Feeney delivered the 5th day of February, 2008

1.1 From the 18th May, 1979 the applicant held the permanent office of rent collector to Cork City Council. He was appointed and held his office under Article 32(2) of the Local Government (Officers) Regulations 1943 made under Part 2 of the Local Government Act 1941. It was a permanent position and under the legislation the applicant held his post until he should die, resign or be removed from office. Part 2 of the 1941 Act was repealed by the Local Government Act 2001. Section 158(b) of that Act permitted a local authority, such as the notice party herein, to alter the terms and conditions of employment of employees such as the applicant.

1.2 Following the said statutory change Cork City Council sought to introduce changes in the terms and conditions of employment of the rent collectors employed by the Council and in particular sought to end door to door rent collection. All the active rent collectors, other than the claimant in this case, were members of the IMPACT trade union. That trade union represented the rent collectors in discussions with the City Council resulting in a memorandum of understanding being agreed as of February, 2002. The applicant became aware that the City Council proposal to abolish the position of rent collector and entered into correspondence with the City Council. In July of 2002 the claimant's solicitor wrote to Cork City Council expressing the view that the applicant's terms of employment were covered by the 1943 regulations. On the 22nd August, 2002 Cork City Council responded indicating that it was not its intention to remove the claimant from office nor was any such proposal being made but the letter went on to point out that the 1943 regulations had been replaced by the terms of the 2001 Act and that the City Council would not deal with the claimant individually as negotiations had taken place with the trade union. The claimant was not a member of the trade union and was not part of the negotiation process. The claimant was informed by the City Council that door to door rent collections were to cease as and from the 1st October, 2002. At the end of September, 2002 the claimant was asked to return the sum of money which he had available to him as a "float" and was informed that he should report to the senior officer in Housing on the 2nd October, 2002 for his new assignment. A dispute arose as to the proposed redeployment of the applicant by the notice party and in December, 2002 the applicant claimed that he was forced to accept an early retirement package on a without prejudice basis.

1.3 The applicant commenced a claim for unfair dismissal before the Employment Appeals Tribunal, it being the claimant's case that himself and two other rent collectors, who were in dispute with Cork City Council, "were effectively victimised".

He claimed that he was left with no alternative but to accept on a without prejudice basis a retirement package at the relatively early age of fifty seven as a result of which the applicant had suffered and continued to suffer ongoing loss.

1.4 The applicant brought his claim to the Employment Appeals Tribunal under the Minimum Notice and Terms of Employment Acts 1973 to 2001 and under the Redundancy Payments Acts of 1967 to 2003 and under the Unfair Dismissal Acts 1977 to 2001. The applicant contended that he was unfairly dismissed from his position with the City Council. The claim was heard on oral evidence over a period of five days, from the 25th April, 2005 to the 13th October, 2005. Both the parties were represented by solicitor and counsel and detailed written submissions were placed before the three member division of the Tribunal. On the 26th May, 2006 the Employment Appeals Tribunal issued its decision wherein it determined that the Tribunal was satisfied that on the evidence that the claimant terminated his own employment and consequently such termination could not be construed as an unfair dismissal and that therefore the Tribunal had no alternative but to dismiss the claimant's appeal under the Unfair Dismissal Acts 1977 to 2001. The Tribunal also concluded that the claimant's claim in respect of redundancy and minimum notice failed in view of the financial package which the applicant had already received from the City Council. The decision of the Employment Appeals Tribunal was a detailed eight page written decision signed by the chairman and dated the 26th May, 2006.

2.1 The applicant commenced judicial review proceedings by order of this Court on the 3rd July, 2006, and was granted leave to issue a notice of motion seeking judicial relief. The principal relief sought is an order of certiorari quashing the decision of the Employment Appeals Tribunal dated the 26th May, 2006, together with a consequential order pursuant to order 84, Rule 26(4) remitting the matter back to a different division of the Employment Appeals Tribunal with a direction to consider the applicant's claim in accordance with law and in accordance with the findings of this Honourable Court. The grounds upon which the reliefs are sought are set forth in paragraph E of the statement of grounds dated the 27th June, 2006 (incorrectly referred to as dated the 29th June, 2006 in the order of the High Court of the 3rd July, 2006) signed by the solicitor for the applicant. The grounds are therein set out in three numbered paragraphs.

2.2 The first ground can be summarised in that it is claimed that the decision of the Tribunal was bad on its face, in that it made no attempt to outline the evidence presented by four witnesses called by Cork City Council in defence of the applicant's claim. It is contended that as a result of such omission that the applicant was precluded from effectively considering what evidence the Tribunal had relied upon in arriving at its determination and further that the applicant is unable to determine what findings of fact had been relied upon by the Tribunal in making its determination and that the determination reached by the Tribunal was not supported by the summary of evidence outlined in its written decision. The second ground relied on is that the decision of the Tribunal was in breach of natural justice, in that one of the principal reasons supporting the determination is reliance on the doctrine of frustration and neither of the parties to the hearing before the Tribunal were asked to consider that issue by way of oral or legal submissions. The third ground, which is inter-related to ground two, was that it was claimed that the Tribunal took into account irrelevant or extraneous matters and misdirected...

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