Mythen v The Employment Appeals Tribunal

JurisdictionIreland
JudgeMr. Justice Barrington
Judgment Date01 January 1990
Neutral Citation1989 WJSC-HC 2046
CourtHigh Court
Docket Number318/JR/88,[1988 No. 318 J.R.]
Date01 January 1990
MYTHEN v. EMPLOYMENT APPEALS TRIBUNAL
(JUDICIAL REVIEW)
BETWEEN/
THOMAS MYTHEN
APPLICANT

AND

THE EMPLOYMENT APPEALS TRIBUNAL AND BUTTERCRUST LIMITED AND JOSPEH DOWNES AND SONS LIMITED (IN RECEIVERSHIP)
RESPONDENTS

1989 WJSC-HC 2046

318/JR/88

THE HIGH COURT

Synopsis:

CONTRACT

Employment

Termination - Fairness - Company - Insolvency - Receiver - Appointment - Sale of part of company's business - Dismissal of employee - Complaint of unfair dismissal rejected erroneously by tribunal - Refusal to apply Council Directive - Decision made ~ultra vires~ tribunal - Judicial review granted despite right of appeal - European Communities (Safeguarding of Employees" Rights on Transfer of Undertaking) Regulations, 1980 (S.I. 306), regs. 3, 5 - Unfair Dismissals Act, 1977, ss. 10, 13, 19 - Council Directive 77/187/EEC - (1988/318 JR - Barrington J. - 29/6/89) - [1990] 1 I.R. 98

|Mythen v. Employment Appeals Tribunal|

JUDICIAL REVIEW

Certiorari

Remedy - Discretion of court - Relief granted - Tribunal - Jurisdiction - Erroneous decision - Failure to apply relevant law - Right of appeal to Circuit Court - (1988/318 JR - Barrington J. - 29/6/89) - [1990] 1 I.R. 98

|Mythen v. Employment Appeals Tribunal|

TRIBUNAL

Decision

Review - Unfair dismissal - Compensation - Entitlement - Decision based on erroneous assumption - Failure to apply relevant law - Right of appeal - Decision quashed on judicial review - (1988/318 JR - Barrington J. - 29/6/89) - [1990] 1 I.R. 98

|Mythen v. Employment Appeals Tribunal|

Citations:

EEC DIR 77/187

MINIMUM NOTICE & TERMS OF EMPLOYMENT ACT 1973

EUROPEAN COMMUNITIES (SAFE GUARDING OF EMPLOYEES" RIGHTS ON TRANSFER OF UNDERTAKINGS) REGS 1980 SI 306/1980 REG 6

EUROPEAN COMMUNITIES (SAFE GUARDING OF EMPLOYEES" RIGHTS ON TRANSFER OF UNDERTAKINGS) REGS 1980 SI 306/1980

REDUNDANCY PAYMENTS ACTS 1967–1979

UNFAIR DISMISSAL ACT 1977

MATERNITY PROTECTION OF EMPLOYMENT ACT 1982

ABENGLEN PROPERTIES LTD, STATE V DUBLIN CORPORATION 1984 IR 381, 1982 ILRM 590

UNFAIR DISMISSAL ACT 1977 S10(4)

EEC DIR 77/187 ART 1

EEC DIR 77/187 ART 3.1

EEC DIR 77/187 ART 4.1

WENDELBOE & ORS V L.J. MUSIC APS 1985 1 ECR 457

ABELS V BEDRIJFSVERENIGING VOOR DE METAALINDUSTRIE EN DE ELECTROTECHNISCHE INDUSTRIE 1985 2 ECR 469, 1987 2 CMLR 406

SPIJKERS V GEBROEDERS BENEDIK ABATTOIR CV 1986 3 ECR 1119

PROTECTION OF EMPLOYEES (EMPLOYERS" INSOLVENCY) ACT 1984 S4

UNFAIR DISMISSAL ACT 1977 S13

UNFAIR DISMISSAL ACT 1977 S19

EEC DIR 77/187 ART 11

EUROPEAN COMMUNITIES (SAFE GUARDING OF EMPLOYEES" RIGHTS ON TRANSFER OF UNDERTAKINGS) REGS 1980 SI 306/1980 REG 3

EUROPEAN COMMUNITIES (SAFE GUARDING OF EMPLOYEES" RIGHTS ON TRANSFER OF UNDERTAKINGS) REGS 1980 SI 306/1980 REG 5

1

Judgment of Mr. Justice Barrington delivered the 29th day of June, 1989.

2

This case raises a very important and difficult point on Community law and on the relationship between national law implementing the European Council Directive of the 14th of February 1977 on the approximation of the laws of Member States relating to the safeguarding of employees" rights in the event of transfers of undertakings, businesses or parts of business (77/187/EEC) and existing common law and statutory provisions for the protection of employees" rights.

3

The Applicant, Mr. Mythen, was formerly a checker with Messrs. Joseph Downes and Sons Limited. He took up employment with them on the 1st of May 1957 and continued to work for them until his employment was terminated on the 31st of October 1987.

4

It appears that in August 1987 Messrs. Joseph Downes and Sons Limited experienced financial difficulties and a Receiver was appointed. It appears that the Receiver negotiated a sale of portion of the Company's assets to the second named Respondents, Messrs Buttercrust Limited, sometime in October 1987. The Applicant refers to the sale as a "takeover" of the Company. But this does not appear to be correct. On the other hand it does not appear to have been a mere sale of the Company's assets on a break-up basis. The Applicant says that the workforce was told by the Sales Manager, Mr. Connolly, prior to the sale that the "Bundy Plant" and the "Roll Plant" would continue to operate as normal and that the workers who operated those plants would continue in their jobs. The Applicant worked as a checker in this part of the Company's business.

5

On the 27th day of October 1987 the Applicant received a notice of proposed dismissal for redundancy signed by the Receiver which informed him that it was necessary to terminate his employment by reason of redundancy. His employment was to terminate on the 31st day of October 1987.

6

On the same date (i.e. the 31st day of October 1987) the Receiver executed a contract for the sale of the Company's assets to Messrs. Buttercrust Limited.

7

The Applicant received a statutory lump sum of £5,711.58 in respect of the redundancy. His Union made a claim under the Minimum Notice and Terms of Employment Act, 1973on behalf of the employees against Messrs. Joseph Downes and Sons Limited (In Receivership) and as a result of that claim the Applicant received a further sum of £1,523.09 on the 13th day of April 1988.

8

Whatever the formal legal position it would appear that by the 30th of October 1987 the Receiver and Messrs. Buttercrust Limited had reached agreement in principle about the sale because, at a meeting on that day, the workforce was informed that a 100 jobs would go but that 40 jobs would be saved. On the following day the process of selecting the 40 men to take up employment with Messrs. Buttercrust Limited began. The Applicant was not one of the 40 chosen. The Applicant claims that the process of selection was unfair and he says that "my job was given to a person who had been employed as a van salesman and who had no previous experience at checking". He adds that since the 1st day of November 1987 two further people have been taken on as checkers by Messrs. Buttercrust Limited but that he has never been offered a job by them.

PROCEEDINGS BEFORE EMPLOYMENT APPEALS TRIBUNAL.
9

The Applicant brought a claim against Messrs. Downes and Sons Limited (In Receivership) and against Messrs. Buttercrust Bakery Limited before the Employment Appeals Tribunal for unfair dismissal. The Receiver of Messrs. Downes entered an appearance before the Tribunal in which he stated:-

"Mr. Mythen was made redundant, together with all other employees of the Company, on 31st October 1987 due to the total cessation of activities by Joseph Downes and Son Limited on the grounds of the Company's insolvency. This does not constitute grounds for a claim for unfair dismissal."

10

Messrs. Buttercrust Bakery Limited (under their then name of "Messrs Zelphi Limited trading as Buttercrust") entered an appearance in which they stated:-

11

"We do not and never had Tom Mythen as an employee".

12

The Appeals Tribunal, in dismissing the Applicant's claim, set out its determination in the following words:-

"In considering this case, the Tribunal notes that but for EEC Directive Number 77/187 and consequent SI Number 306 of 1980, the position would have been quite clear. It could be stated clearly that the claimant's position terminated when Joseph Downes and Sons Limited ceased to carry on business and the claimant received redundancy payment and received a minimum notice award from the Tribunal. But for SI Number 306 of 1980 it could not be claimed that the claimant was an employee of Buttercrust Limited. The Tribunal has considered if the regulations have changed the position. The Tribunal considers Regulation 5 to be the relevant provision in this case. This appears to constitute a fundamental change, if not overturning, of the common law provision in relation to who a new employer shall or shall not employ. However it makes no express amendment of statute law. No reference is made in the regulations to the Employment Appeals Tribunal or to the Redundancy Payments Acts 1967to 1979; the Minimum Notice and Terms of Employment Act, 1973; the Unfair Dismissals Act, 1977or the Maternity Protection of Employment Act, 1982. The Tribunal can only have expressed, not implied, powers. Accordingly, the claims fail."

THE LAW
13

Mrs. Robinson, on behalf of the Applicant, submits that this determination is bad on its face because, while it recognises the overriding nature of the Community Directive and of the Statutory Instrument enforcing it, it fails to recognise that these instruments alter existing contracts of employment and create new employment relationships which the Tribunal has jurisdiction to, and must, consider.

14

Mr. Cooke, on behalf of the Respondents, does not seriously challenge this proposition but submits that, even if I agree with Mrs. Robinson, I should not, in my discretion, make an Order of Certiorari or send the case back to the Tribunal for further consideration. He makes this submission because, he says, it is quite obvious that Mr. Mythen can have no rights under the Directive and that therefore, to send the case back to the Tribunal would be a waste of time.

15

The Applicant's case is based largely on the provisions of the Council Directive 77/187/EEC and on the European Communities (Safeguarding of Employees" Rights on Transfer of Undertakings) Regulations 1980 Statutory Instrument Number 306 of 1980.

16

The case of Messrs. Buttercrust Limited and Messrs. Joseph Downes and Sons Limited may be summarised as follows:-

17

1. The Applicant was validly made redundant by Messrs. Joseph Downes and Sons Limited and was never employed by Messrs. Buttercrust Limited.

18

2. The provisions of Council Directive 77/187/EEC and of Statutory Instrument Number 306 of 1980 do not apply to the claim of the Applicant.

19

3. The Applicant is estopped from bringing the present claim by virtue of the fact that he was paid and accepted a sum of £5,711.58 under the...

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