Minister for Finance v Civil and Public Service Union

• Jurisdiction: Ireland
• Judge: Miss Justice Laffoy,MS. JUSTICE LAFFOY
• Judgment Date: 11 May 2006
• Neutral Citation: [2006] IEHC 14,[2006] IEHC 145
• Court: High Court
• Docket Number: 2002/80SP,[2004 No. 336
• Date: 11 May 2006

[2006] IEHC 14

THE HIGH COURT

2002/80SP

MIN FOR FINANCE v CIVIL & PUBLIC SERVICE UNION & ORS

MIN FOR FINANCE v CIVIL & PUBLIC SERVICE UNION & ORS

IN THE MATTER OF THE EMPLOYMENT EQUALITY ACT 1977

BETWEEN

THE MINISTER FOR FINANCE

APPELLANT

AND

CIVIL AND PUBLIC SERVICE UNION, PUBLIC SERVICE EXECUTIVE UNION, IRISH MUNICIPAL PUBLIC & CIVIL TRADE UNION

RESPONDENTS

ANTI-DISCRIMINATION (PAY) ACT 1974 S8(3)

EMPLOYMENT EQUALITY ACT 1977 S21(4)

EMPLOYMENT EQUALITY ACT 1977 S19(5)

GERSTER v FRIESTAAT BAYERN 1997 ECR I-15253

KILDARE CO COUNCIL v KEOGH 1971 IR 330

INTERPRETATION ACT 2005 S5

PRACTICE AND PROCEDURE

Res judicata

Estoppel - Jurisdiction issue raised in previous related proceedings between same parties - Whether issue res judicata between parties - Whether respondents estopped from raising plea based on jurisdiction - Employment - Labour Court - Whether decision of Labour Court on preliminary issue constituted "determination of a dispute" - Whether Labour Court decision on preliminary issue capable of being appealed to High Court - Application of principles of statutory interpretation - Intention of Oireachtas - Employment Equality Act 1977 (No 16), ss 19(5) and 21(4) - Interpretation Act 2005 (No 23), s 5 - Finding that there was jurisdiction (2004/3336Sp - Laffoy J - 20/1/2006) [2006] IEHC 14 - [2006] 1 IR 254

Facts: The appeal was being prosecuted under s. 21(4) of the Employment Equality Act 1977. The respondents contended that the Court did not have jurisdiction to hear the appeal because, it was contended, the decision of the Labour Court, the subject of the proceedings, was not the determination of a dispute within the meaning of s. 21(4).

Held by Laffoy J. in finding that the court had jurisdiction that the issue of jurisdiction was res judicata between the parties and in any event the earlier decision was correct.

Reporter: R.W.

1 APPROVED JUDGMENT DELIVERED BY MS. JUSTICE LAFFOYON FRIDAY, 20th JANUARY 2006

APPEARANCES

FOR THE APPELLANT:

MR. G. HOGAN SC

S. N. HYLAND BL

INSTRUCTED BY:

MS. CHRISTINA LOUGHLIN

CHIEF STATE SOLICITOR

OSMOND HOUSE

LITTLE SHIP STREET

DUBLIN 8

FOR THE RESPONDENTS:

MS. M. HONAN BL

INSTRUCTED BY:

DARACH CONNOLLY

SOLICITOR

SUNLIGHT CHAMBERS

21 PARLIAMENT STREET

DUBLIN 2

2 THE JUDGMENT WAS DELIVERED ON FRIDAY, 20th JANUARY 2006 AS FOLLOWS:

3 MS. JUSTICE LAFFOY:I will rule now on the points raised before lunch.

4 Although the special summons invokes Section 8(3) of the Anti-Discrimination (Pay) Act 1974, as I understand it, it is common case that this appeal is being prosecuted under Section 21(4) of the Employment Equality Act 1977 (the Act of 1977). That subsection provides as follows:

"A party to a dispute determined by the Court under subsection (2) or, in the case of such a determination in a matter referred to in Section 20 the Minister or the person concerned, may appeal to the High Court on a point of law."

5 "The Court" in subsection (4) means the Labour Court. The respondents contend that this court does not have jurisdiction to hear this appeal under Section 21(4), because, it is contended, that the decision of the Labour Court, the subject of these proceedings, was not the determination of a dispute within the meaning of Section 21(4).

6 The appellant contends that this court does have jurisdiction on two grounds. First, that the jurisdiction points has already been decided by Kelly J in earlier proceedings between the parties arising out of the same claim. Those proceedings were record number 2002 No. 80 SP and the decision of Kelly J was dated 13th December 2002.

7 That appellant contends that the jurisdiction issue is res judicata between the parties or, alternatively, that it would be unfair, inequitable and unjust to allow the respondents to reopen the jurisdiction issue which was decided by Kelly J against the respondents.

8 Secondly, the appellant contends that, in any event, the decision of Kelly J was correct and that the decision of the Labour Court of 29th July 2004, the subject of these proceedings, was the determination of a dispute within the meaning of Section 21(4).

9 The decision of the Labour Court, which the appellant appeals against in these proceedings, was that the claimants, represented by the respondents, had shown reasonable cause under Section 19(5) of the Act of 1977 for not lodging their reference under Section 19 within six months from the date of the first occurrence of the act alleged to constitute discrimination.

10 The reference which relates to an allegation of discrimination by job sharers in the public service was brought following the decision of the European Court of Justice in Gerster -v- Friestaat Bayern [1997] ECR - 15203 and has been before the Labour Court since 1998. The manner in which the reference was to be managed was the subject of a letter dated 10th June 1998 from the then Chairman of the Labour Court, Evelyn Owens. As I understand it, it was agreed by the parties that the issue of the time limit in Section 19(5), and, in particular, whether the clarification of the law in the Gerster case constituted reasonable cause, would be dealt with as a preliminary issue by the Labour Court. This was done in a decision of 14th January 2002 of the Labour Court.

11 That decision was the subject of the appeal which was before Kelly J on 13th December 2002. On that appeal the respondents sought a preliminary ruling on a motion in terms recited in the order of Kelly J as follows referring to the notice of motion:

"... notice of motion on behalf of the respondents dated 19th November 2002 for a preliminary ruling on a point of law and for, inter alia, a declaration that the appellant's appeal was premature and that this court does not have jurisdiction to hear the said appeal and for the dismissal of the said appeal."

12 That is the manner in which the issue was recited in the order.

13 Kelly J heard the application and he dismissed the motion. When the appeal proceeded, at the suggestion of Kelly J, the parties considered whether the matter needed to be remitted to the Labour Court to establish a factual matrix for the issue as to reasonable cause. By consent, the appeal was allowed and the matter was remitted to the Labour Court. The first proceedings were then spent.

14 The matter was remitted for determination of the issue which was set out in the order of Kelly J as follows:

"Whether or not in the light of the factual position as agreed or determined by the Labour Court in respect of all or any of the ten claimants the decision of the European Court of Justice in Gerster v. Friestaat Bayern Case C1/95 [1997] ECR 15273 constituted a reasonable cause to extend time within the meaning of Section 19(5) of the Employment Equality Act 1977."

15 It is the decision of the Labour Court on that issue which is the subject of this appeal.

16 I am of the view that the submission that the jurisdiction point is res judicata is well taken. This court is, of course, bound by the decision of the Supreme Court in Kildare County Council -and- Keogh [1971] IR 330. The essence of the decision of the Supreme Court on the res judicata/ estoppel issue in that case is stated as follows by Walsh J at page 342:

"If in litigation between parties in a court of competent jurisdiction a decision based upon a particular interpretation of an Act is given in favour of one of the parties can that be the basis of an estoppel by judgment or otherwise in further and separate litigation between the same parties at a later stage in another court of competent jurisdiction so as to prevent the party, who successfully contended in the first litigation for a particular construction of the act from seeking to set up that constructionagain? In my view, the answer is No."

17 I accept Mr. Hogan's submission that this appeal and the earlier appeal should be regarded as a continuum and that, while technically that are two sets of proceedings, this appeal in substance is not separate litigation from the earlier appeal as being correct. In effect the respondents accepted the decision of Kelly J. They could have appealed to the Supreme Court against that decision, but they did not. They embarked on the process provided for in the order of Kelly J, which lead to the decision of 29th July 2004 and to this appeal. It would, in my view, be unfair to allow them to re-open the jurisdiction point.

18 Apart from that, in any event, I am of the same view as Kelly J on the issue as to whether the Court has jurisdiction to hear the appeal. Section 21(4) provides for an appeal on a point of law and only on a point of law.

19 Taking a purposive approach to the construction of Section 21(4), which the Court is now mandated to do by virtue of Section 5 of the Interpretation Act 2005, I think it is reasonable to assume that the Oireachtas envisaged that the Labour Court would manage its caseload in a sensible manner and that where a decision on a net issue might resolve the dispute that it would deal with the net issue as a preliminary point and decide it. I also think it is reasonable to assume that the Oireachtas envisaged that where the Labour Court adopted that approach its decision would be appealable on a point of law without having to bring the reference to a final decision on the claim. Any other reading of Section 21(4) would seem to go against the clear intention of the Oireachtas that references in relation to discrimination issues should be dealt with in an expeditious and efficient manner.

20 Therefore I rule that the Court has jurisdiction.

21 END OF JUDGMENT

[2006] IEHC 145

THE HIGH COURT

RECORD NO. No. 336 SP/2004

MIN FOR FINANCE v CIVIL & PUBLIC SERVICE UNION & ORS

IN THE MATTER OF THE EMPLOYMENT EQUALITY ACT, 1977 ON THE APPLICATION OF THE MINISTER FOR FINANCE

BETWEEN/

THE MINISTER FOR...