Marino Camarasa v The Labour Court
| Jurisdiction | Ireland |
| Judge | Ms. Justice Siobhán Phelan |
| Judgment Date | 26 July 2023 |
| Neutral Citation | [2023] IEHC 471 |
| Court | High Court |
| Docket Number | [RECORD No. 2022 145/MCA] |
and
[2023] IEHC 471
[RECORD No. 2022 145/MCA]
THE HIGH COURT
JUDGMENT of Ms. Justice Siobhán Phelan delivered on the 26 th day of July, 2023
. This matter comes before me as an appeal on a point of law from the decision of the Labour Court dismissing the Appellant's claim of alleged unfair dismissal, and in so doing, upholding the decision of the Adjudicator Officer at first instance. The Appellant appeared before me as a litigant in person. In essence, he seeks an order setting aside the decision of the Labour Court under the Unfair Dismissals Act, 1977 (as amended) by reason of its failure to find a breach of the Protection of Employment Act, 1977, most particularly ss. 9, 10 and 12 thereof by reason of the collective redundancy of a group of 12 employees which included the Appellant. He further pleads a breach of s. 28 of the Emergency Measures in the Public Interest ( COVID-19) Act, 2020, although during the hearing before me he confirmed that this was an intended reference to s. 29 of that same Act.
. In its Statement of Opposition, in addition to disputing that there is any merit in issues raised on this appeal, the Notice Party raises preliminary issues as follows:
-
(a) the within appeal issued out of time and should be struck out.
-
(b) the Appellant has impermissibly and inappropriately sought to raise, for the first time in these proceedings, issues and claims by way of appeal on a point of law that were never raised and were not properly before the deciding body, the Labour Court, and these claims should be struck out for want of jurisdiction.
-
(c) the Appellant has not identified any error of law; and has not clearly and concisely set out the point of law arising, and this appeal should be struck out on the grounds that it is frivolous and vexatious and/or discloses no cause of action and is bound to fail.
. The Appellant was employed as a “ Lead User Experience Architect” with the Notice Party based in Cork from 2015. Following the onset of the COVID-19 Pandemic, the Appellant signed a document subscribing to the Temporary COVID-19 Wage Subsidy Scheme. In June, 2020, the Appellant was invited to join a group call with his colleagues in the Integrated Offerings Unit during which he was advised that the Unit was being dismantled and there would be resulting redundancies. The Appellant was notified on the 5 th of June, 2020 that his position was being made redundant. On the 8 th of June, 2020, the Appellant was furnished with a draft agreement, described as a “ standard waiver agreement” by counsel for the Notice Party, reflecting the termination of his employment by reason of redundancy. The draft agreement provided for an enhanced redundancy package upon agreement to provide certain waivers and enter into restrictive covenants as set out for a period of six months. The Appellant did not sign this draft agreement.
. On the 19 th of June, 2020, the Appellant was made redundant together with eleven other members of his unit and subsequently received his statutory redundancy entitlement. The Notice Party's position was and remains that the disbandment of the unit was because of a global restructuring and the Appellant's role along with 11 other roles in Cork and other roles within the unit internationally were made redundant.
. The Appellant lodged a complaint to the Workplace Relations Commission under the Unfair Dismissals Act, 1977 (as amended) on the 1 st of September, 2020. The primary grievance ventilated at that time was that the Appellant had not received a letter of redundancy which it was contended delayed his receipt of social protection benefits. In response to this claim, the Notice Party pointed out that the Appellant had been legally represented and had never sought such a letter. It was further contended that the Appellant was aware of the information he subsequently sought to have included in a letter and the absence of a letter was being used as a “ device to litigate”. In a written decision (ADJ-00029629) dated the 9 th of July, 2021, the Adjudicator determined that the Appellant's employment was validly terminated by reason of a bona fide redundancy and that he was not unfairly dismissed. The Adjudicator recorded that the Appellant's arguments “ appeared to stem from his dissatisfaction with the terms of the compromise agreement on offer. Such unhappiness is understandable but cannot be used to sustain a complaint of Unfair Dismissal.”
. On the 29 th of July, 2021, the Appellant submitted an appeal to the Labour Court. The Appellant's appeal from the decision of Adjudicator came before the Labour Court in February, 2022. A Notice of Determination issued from the Labour Court on the 28 th of March, 2022. In its Determination, the Labour Court recorded as follows:
“The complainant contends that three aspects of the process administered by his employer render his dismissal unfair. He was unsure of his final termination date as his employer failed to provide him with a redundancy certificate, he did not receive the same ex-gratia terms as applied to other employees in the past, and he was not offered alternative roles within the company.”
. Accordingly, it is clear that the Appellant raised no issues in relation to notification and consultation rights which arise in the case of a collective redundancy. Indeed, it is expressly recorded:
“The Complaint does not take issue with the timeline provided for consultation, which was two weeks minimum notice, as required under the Redundancy Payments Acts, 1967. The Complainant accepts that his role ceased to exist as a result of a restructure when his unit was disbanded, and he does not take issue with his selection for redundancy. He does not assert that the Respondent failed to follow an agreed redundancy process.”
. The Labour Court in its Determination addressed under separate headings the three component parts of the complaint as argued by the Appellant before it, namely, the failure by the Notice Party to provide a certificate of redundancy, the terms of the ex gratia offer and the failure to offer alternative roles within the company. The Labour Court, having heard the case, concluded:
“Having regard to all of the circumstances of this case, the Court is of the view that matters identified by the complainant did not render the dismissal to be unfair. As a result, the court is of the view that the termination of the complainant's employment by reason of redundancy was not unfair. On the basis of the foregoing, the court finds that the complaint of unfair dismissal contrary to the act of 1977 is not well founded. Accordingly, the decision of the adjudication officer is upheld.”
. The Appellant sought to appeal to the High Court by Notice of Motion which he sent to the Central Office High Court by registered post on the 5 th of May, 2022, with 42 days of the decision appealed from. The Appellant was asked by the Central Office to make changes to the Notice of Motion and ultimately, a revised version of the Notice of Motion issued on the 27 th of May, 2022, outside the 42 day period, and the matter was returnable before the High Court on the 4 th of July, 2022.
. This appeal is from a decision of the Labour Court dated the 28 th of March 2022. Section 46 of the Workplace Relations Act 2015 (as amended) lays down a 42-day time for such appeals providing:
“46. A party to proceedings before the Labour Court under this Part may, not later than 42 days from the service on that party of notice of the decision of the Labour Court in those proceedings, appeal that decision to the High Court on a point of law, and the decision of the High Court in relation thereto shall be final and conclusive.”
. This time limit is also reflected in Order 105 and Order 106 of the Rules of the Superior Courts, 1986. Order 105 is headed “Appeals and references from the Labour Court.” Order 105, rule 5 provides:
“5. The originating notice of motion shall be issued within the time limit specified for appeals to the Court from the Labour Court in (as the case may be): (i) section 40 of the Act of 1967, or (ii) section 10A of the Act of 1977, or (iii) section 46 of the Act of 2015.”
. Order 106 is headed “Proceedings under the Employment Equality Acts 1998 and 2004 and the Workplace Relations Act 2015”. Order 106, rule 5 provides that:
“The originating notice of motion referred to in rule 2 shall be issued within 42 days of the date on which the determination of the Labour Court was given.”
. Order 106, rule 4 also requires certain parties to be served with proceedings within that 42-day period as follows:
“the originating notice of motion referred to in rule 2 shall be served on all parties to the determination of the Labour Court and on the Minister for Business, Enterprise and Innovation.”
. As set out above, the originating Notice of Motion in this appeal did not issue until the 27 th of May, 2022 outside this 42-day period. Issued proceedings were not served on the Respondent until after this 42-day period expired. It is unclear if the Minister was ever served as required under Order 106, rule 4. Arising from the failure to issue and serve within 42 days, the question of compliance with time limits was raised from the outset of these proceedings on behalf of the Notice Party, including by letter dated the 8 th of July, 2022 from the Solicitors for the Notice Party to the Appellant, and by way of preliminary objection in the Statement of Opposition.
. I accept the Appellant's evidence that a Notice of Motion was sent to the Central Office for issue by letter dated the 5 th of May, 2022. This was within 42 days of the Labour Court determination in accordance...
To continue reading
Request your trial