Nurendale Ltd T/A Panda Waste v The Labour court

• Jurisdiction: Ireland
• Judge: Ms. Justice Faherty
• Judgment Date: 12 December 2017
• Neutral Citation: [2017] IEHC 806
• Docket Number: [2016 No. 321 J.R.]
• Court: High Court
• Date: 12 December 2017

[2017] IEHC 806

THE HIGH COURT

JUDICIAL REVIEW

Faherty J.

[2016 No. 321 J.R.]

BETWEEN

NURENDALE LIMITED TRADING AS PANDA WASTE

APPLICANT

AND

THE LABOUR COURT

RESPONDENT

AND

ROBERT BURKE

NOTICE PARTY

Employment - Unfair Dismissal Act 1977('1977 Act') - the Workplace Relations Act 2015 - Lack of jurisdiction - Certiorari - Gross misconduct - Undue prejudice

Facts: The applicant sought an order of certiorari against the determination of the respondent that the dismissal of the notice party was unfair. The applicant contended that the respondent had no jurisdiction to hear the notice party's claim as it was lodged subsequent to the commencement of the Workplace Relations Act 2015. The notice party claimed that if the applicant was granted the desired relief, he would have been left without remedy. The notice party also averred that the applicant should have raised the jurisdictional issue before the respondent and it was not appropriate to raise that issue at the appeal stage.

Ms. Justice Faherty granted an order of certiorari to the applicant and thus, quashed the determination of the respondent. The Court held that by virtue of s. 80(2) of the 2015 Act, it was clear that the amendments to the 2015 Act did not impact the appeal procedures provided under the 1977 Act. The Court noted that the appropriate forum for the lodgment of an appeal from the decision of the Rights Commissioner was the Employment Tribunal. The Court found that the applicant was not able to raise the jurisdictional issue before the respondent as the respondent's own appeal form had contributed to the applicant's misunderstanding. The Court observed that the notice party would have remedy by way of filing the appropriate appeal before the Employment Tribunal.

JUDGMENT of Ms. Justice Faherty delivered on the 12th day of December, 2017

1 The applicant is an unlimited company which is engaged in the waste collection and disposal business.

2 The notice party is a former employee of the applicant.

3 The notice party was dismissed by the applicant on 21st July, 2014. The applicant alleged that the notice party had been guilty of gross misconduct. The notice party lodged a claim pursuant to the Unfair Dismissal Act 1977 ('the 1977 Act') in respect of his dismissal on or about the 25th August, 2014. The complaint was the subject of a hearing before a Rights Commissioner on 21st July, 2015. Arising from that hearing, the Rights Commissioner made a recommendation dismissing the notice party's unfair dismissal claim on 17th September, 2015.

4 On 1st October, 2015, the Minister for Jobs, Enterprise and Innovation promulgated the Workplace Relations Act 2015 (Commencement) No. 2 Order 2015 [Statutory Instrument No. 41 of 2015] ('the Commencement Order'). The Commencement Order commenced a number of sections of the Workplace Relations Act 2015 ('the 2015 Act'), including those sections dealing with the fora in which various employment disputes were to be ventilated following upon the coming into force of the 2015 Act.

5 On or about 2nd October, 2015, the notice party's solicitor submitted an appeal from the recommendation of the Rights Commissioner to both the Employment Appeals Tribunal ('hereinafter the Tribunal') and the respondent (hereinafter 'the Labour Court'). According to the notice party's statement of opposition in the within proceedings, this was so as to ensure that no difficulty would arise in respect of the appropriate forum for the determination of the notice party's appeal. This was obviously done out of an abundance of caution on the part of the notice party's legal representative, given the changed employment law landscape which the coming into force of the 2015 Act had heralded. In these proceedings, it is the applicant's contention that it is not an insignificant factor that the notice party's solicitor believed that the appeal of the Rights Commissioner's rejection of the unfair dismissal claim might lie with the Tribunal.

6 By letter dated 8th October, 2015, the Tribunal informed the notice party's solicitor that it could not hear the notice party's appeal as it was lodged subsequent to the commencement of the 2015 Act. The letter stated as follows:

'On 1st October 2015 the Workplace Relations Commission (WRC) commenced. From that date the WRC carries out the work of the Labour Relations Commission (including the Rights Commissioner Service) Equality Tribunal, Employment Appeals Tribunal and National Employment Rights Authority. The Labour Court is now the appellate body to determine, among other matters, appeals against decisions of the WRC Adjudication Officers. This means that the Employment Appeals Tribunal can no longer accept appeals of Rights Commissioners decisions lodged on or after 1st October, 2015. As your letter of appeal/claim form was received on 08th October, 2015 I have forwarded same to the Labour Court who will contact you directly in the near future.'

7 On 13th October, 2015, the Labour Court acknowledged receipt of the notice party's appeal and it retained seisin of the matter from that point onwards.

8 The 'Guidance Notes for Completion of Appeal Form' which attached to the appeal form utilised by the notice party for his appeal provided, inter alia, that the form should be used 'when making an appeal/s to the Labour Court in relation to...

a Decision of a Workplace Relations Commission Adjudication Officer or other employment rights adjudication body or officer...'.

It was advised that the form 'should NOT be used' when, inter alia, 'making an appeal in relation to a determination of the Employment Appeals Tribunal on a complaint presented under the Unfair Dismissals Act 1977 to 2007 before 1st October (such appeals to be made to the Circuit Court.)'

9 The applicant's solicitor, Mr. Michael Shanley, received notice of the notice party's appeal on or about 15th October, 2015.

10 In his affidavit grounding the within application, Mr. Michael Shanley avers that from the contents of the Guidance Notes which attached to the notice party's appeal form, it appeared to him that the correct forum for hearing the appeal was the Labour Court 'since what was involved was the Notice Party's appeal from a decision of a rights commissioner which was an "employment rights adjudication officer" and further that the Circuit Court was not the appropriate venue since [the] Notice Party was not appealing a determination of the Employment Appeals Tribunal made before the 1st October 2015.'

11 Written submissions were furnished by both the applicant and the notice party to the Labour Court, in respect of the issuance of witness summonses. On 18th December, 2015, both parties were legally represented before the Labour Court in a case management hearing. At the direction of the Labour Court, further legal submissions were exchanged between the parties in January, 2016. Ultimately, on 21st March, 2016, the notice party's appeal was heard by the Labour Court. Both parties were legally represented at the hearing which was a de novo appeal with a full oral hearing, at which the applicant's solicitor cross-examined the notice party and witnesses were called to give evidence on behalf of the applicant.

12 Having heard oral evidence from both parties, and considered the parties' written legal submissions, by decision dated 30th March, 2016, the Labour Court duly determined that the notice party had been unfairly dismissed by the applicant and it awarded him a sum of €35,000 by way of compensation. This is the decision which is impugned in the present proceedings.

13 Mr. Shanley avers that, after receipt of the Labour Court's decision, and following the advices of counsel and a review of s. 80 and s. 53(1) of the 2015 Act, he wrote on 15th April, 2016 informing the Labour Court of the applicant's concerns regarding the jurisdiction of the Labour Court to determine the notice party's appeal.

14 The letter reads, in part, as follows:

'The issue in question concerns the Labour Court's jurisdiction to hear appeals from recommendations of a Rights Commissioners in unfair dismissal cases which, although commenced before the coming into operation of the Workplace Relations Act 2015, are appealed under that new regime to the Labour Court. As you are aware, the old regime would have involved those appeals being made to the Employment Appeals Tribunal. In our case, the appeal of the Rights Commissioner's recommendation of the 17th September, 2015 was filed by the claimant's solicitors on the [2nd] October 2015, that is, after the coming into operation of the 2015 Act.

Our advice is that all such unfair dismissal appeals should be made to the Tribunal rather than the Labour Court. For whatever reason, this is not what transpired in our case. Against that, it is conceded that no jurisdictional issue was raised by either party or the Court during the appeal process.'

15 After setting out the provisions of sections 8 and 9 of the 1977 Act, Mr. Shanley went on to state:

'Thus...as you are well aware, under the old regime, the appeal would have been from the Rights Commissioner's recommendation to the Tribunal.

Under the old regime, a claim for unfair dismissal under the 1977 Act was commenced either before the Rights Commissioner or the Tribunal and if it was the former, the appeal lay to the Tribunal. From the 1st October 2015 onwards, the new regime applies with such complaints being made to the Workplace Relations Commission and, if necessary, being heard by an Adjudication Officer with a right of appeal to the Labour Court.

As regards the transitional period between the old and new regime, the legislature introduced section 53(1) of the 2015 Act... [as inserted by s. 20 of the National Minimum Wage (Low Pay Commission) Act 2015]...'

16 Mr Shanley went on to make the case that despite the enactment of s. 53(1) of the...