Pascal Hosford v Department of Employment Affairs and Social Protection
| Jurisdiction | Ireland |
| Judge | Ms. Justice Faherty |
| Judgment Date | 15 December 2021 |
| Neutral Citation | [2021] IECA 335 |
| Docket Number | Appeal Number: 2020/111 |
| Court | Court of Appeal (Ireland) |
[2021] IECA 335
Faherty J.
Ní Raifeartaigh J.
Pilkington J.
Appeal Number: 2020/111
THE COURT OF APPEAL
Judgment of Ms. Justice Faherty dated the 15 th day of December 2021
. What arises for determination here is a preliminary objection made by the respondent (“the Department”) to the jurisdiction of the Court to entertain the substantive appeal brought by Mr. Hosford from the judgment (25 February 2020) and Order (10 March 2020) of the High Court (Meenan J.) dismissing the appeal brought by Mr. Holford from a determination of the Labour Court, which in turn had rejected a claim brought by Mr. Holford under the Protected Disclosures Act 2014 (“the 2014 Act”).
. While Mr. Holford's substantive appeal is not before the Court, in order to put what the Court has to determine into context, it is necessary to explain the background to the proceedings and the procedural history to this point in time.
. At all relevant times, Mr. Hosford, a Higher Executive Officer, was employed as a manager in the finance section of the Department's Facilities Management Unit, a role he held since June 2014. It is not in dispute that Mr. Hosford made a number of protected disclosures under the provisions of the 2014 Act to the Department. In or around 2017, he was subject to disciplinary procedures in the workplace. The particulars of alleged misconduct were set out in a letter dated 26 June 2017 under a number of headings. It was stated that the matters set out in the letter would be raised in accordance with the Civil Service Disciplinary Code and Mr. Hosford was requested to attend a meeting some days later. The result of the disciplinary process was that Mr. Hosford was to receive a final written warning.
. He appealed this decision pursuant to an internal appeals procedure. The appeal was refused. Thereafter, he appealed the matter to an external appeals officer. That appeal was also unsuccessful.
. Subsequently, Mr. Hosford made a complaint to the Workplace Relations Commission (“WRC”) pursuant to s.41(1) of the Workplace Relations Act 2015 (“the 2015 Act”) in which he claimed that in being disciplined he had been penalised for having made a protected disclosure, contrary to the provisions of s. 12 of the 2014 Act.
. Mr. Hosford was unsuccessful in his claim before an Adjudication Officer of the WRC. That ruling, given on 20 September 2018, was appealed by Mr. Hosford to the Labour Court. On 25 March 2019, the Labour Court issued its determination in which it dismissed Mr. Hosford's appeal and affirmed the decision of the Adjudication Officer.
. On 15 April 2019, Mr. Hosford appealed the Determination of the Labour Court to the High Court. His appeal was brought pursuant to s.46 of the 2015 Act. He set out some 10 grounds of appeal on points of law.
. For the reasons set out in his judgment of 25 February 2020, Meenan J. dismissed the appeal. He concluded that “insofar as there were findings of fact made by the Labour Court, these were supported by evidence and the provisions of the Act of 2014 were correctly interpreted and applied”. The Order of the High Court dismissing Mr. Hosford's appeal was perfected on 14 April 2020.
. By Notice of Appeal dated 12 May 2020, Mr. Hosford purports to appeal to this Court against the judgment and Order of Meenan J.
. In its notice dated 29 May 2020, the Department takes issue with Mr. Hosford's various grounds of appeal. More fundamentally however, it seeks to have the appeal struck out on the basis that same is misconceived having regard to the provisions of s. 46 of the 2015 Act. In short, the argument advanced by the Department is that pursuant to s.46 of the 2015 Act, no appeal lies to this Court from the judgment and Order of the High Court.
. In order to understand how it is that the Department maintains that the appellate jurisdiction of this Court is not available to Mr. Hosford, it is instructive firstly to have regard to the provisions of s.12 of the 2014 Act which ground Mr. Hosfords's substantive complaint against the Department.
. Section 12 of the 2014 Act provides, in relevant part:
“12. (1) An employer shall not penalise or threaten penalisation against an employee, or cause or permit any other person to penalise or threaten penalisation against an employee, for having made a protected disclosure…
(3) Schedule 2 shall have effect in relation to an alleged contravention of sub section (1).”
. Schedule 2, to the 2014 Act provides:
“Decision under section 41 of the Workplace Relations Act 2015
1. A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of section 12(1) shall do one or more of the following, namely –
(a) declare that the complaint was or, as the case may be, was not well founded,
(b) require the employer to take a specified course of action,
(c) require the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all the circumstances, but not exceeding 260 weeks' remuneration in respect of the employee's employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977.
Decision of Labour Court on appeal from decision referred to in paragraph 1
2. A decision of the Labour Court under section 44 of the Workplace Relations Act 2015, on appeal from a decision of an adjudication officer referred to in paragraph 1, shall affirm, vary or set aside the decision of the adjudication officer.”
. Thus, the 2014 Act provides that where an employee considers that they have been penalised for having made a protected disclosure contrary to the provisions of that Act they can make a complaint and seek redress from the WRC in accordance with s.41 of the 2015 Act, and, thereafter, appeal the decision of the Adjudication Officer to the Labour Court in accordance with the provisions of the 2015 Act.
. Nothing further is provided for in the 2014 Act with regard to what is to happen after an appeal of an Adjudication Officer decision to the Labour Court. However, the position is comprehensively dealt with in the 2015 Act which provides the adjudicative structure in respect of myriad statutory employment disputes, including a complaint under s.12(1) of the 2014 Act. The enactment of the 2015 Act resulted in the creation of a system where statutory employment disputes could be informally resolved via an adjudication process comprising Adjudication Officers of the WRC with the Labour Court acting as a final court of appeal subject to the right of either party to bring a further appeal from a Labour Court determination to the High Court on a point of law. Clearly, in enacting the 2015 Act, the Oireachtas saw fit to provide for a more streamlined adjudication and appeals structure to be in place for the determination of employment disputes than had pertained previously, including putting in excepting provisions such as that contained in s.46 of the 2015 Act.
. In broad brush, Part 4 of the 2015 Act provides that a complaint that an employer has contravened a provision specified in Part 1 or 2 of Schedule 5 of the Act, or a dispute as to the entitlement of an employee under an enactment specified in Part 3 of Schedule 5, is to be referred for adjudication to an Adjudication Officer of the WRC. Section 41 of the Act provides, in relevant part:
“41. (1) An employee (in this Act referred to as a “complainant”) or, where the employee so consents, a specified person may present a complaint to the Director General that the employee's employer has contravened a provision specified in Part 1 or 2 of Schedule 5 in relation to the employee and, where a complaint is so presented, the Director General shall, subject to section 39, refer the complaint for adjudication by an adjudication officer.
…
(5) (a) An adjudication officer to whom a complaint or dispute is referred under this section shall—
(i) inquire into the complaint or dispute,
(ii) give the parties to the complaint or dispute an opportunity to—
(I) be heard by the adjudication officer, and
(II) present to the adjudication officer any evidence relevant to the complaint or dispute,
(iii) make a decision in relation to the complaint or dispute in accordance with the relevant redress provision, and
(iv) give the parties to the complaint or dispute a copy of that decision in writing.
(b) In this subsection “relevant redress provision” means—
(i) in relation to a complaint under this section of a contravention of a provision of an enactment specified in Part 1 or 2 of Schedule 5 the provision of that enactment specified in Part 1 of Schedule 6,
(ii) in relation to a dispute as to the entitlements of an employee under an enactment specified in Part 3 of Schedule 5, the provision of that enactment specified in Part 1 of Schedule 6, and
(iii) in relation to a complaint under subsection (3), paragraph 1 of Schedule 2 to the Act of 2012.”
. Section 12(1) of the 2014 Act is listed in Part 1 of Schedule 5 to the 2015 Act and, accordingly, where an employee complains that his employer has contravened s.12(1) of the 2014 Act, the complaint lies to the WRC in accordance with s.41 of the 2015 Act.
. A decision made by an Adjudication Officer of the WRC can be appealed to the Labour Court in accordance with s.44 of the 2015 Act. It provides as follows:
“44. (1) (a) A party to proceedings under section 41 may appeal a decision of an adjudication officer given in those proceedings to the Labour Court and, where the party does so, the Labour Court shall—
(i) give the parties to the appeal an opportunity to be heard by it and to present to it any...
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