Sharma v Employment Appeals Tribunal & Others
| Jurisdiction | Ireland |
| Judge | Mr. Justice Hedigan |
| Judgment Date | 13 May 2010 |
| Neutral Citation | [2010] IEHC 178 |
| Court | High Court |
| Date | 13 May 2010 |
[2010] IEHC 178
THE HIGH COURT
AND
AND
AND
AND
REDUNDANCY PAYMENTS ACT 1967 S39
UNFAIR DISMISSALS ACT 1977 S18
EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6
SAFETY HEALTH & WELFARE AT WORK ACT 2005 S27
UNFAIR DISMISSALS ACT 1977 S2(1)(A)
UNFAIR DISMISSALS ACT 1977 S6(1)
UNFAIR DISMISSALS ACT 1977 S6(2)
SAFETY HEALTH & WELFARE AT WORK ACT 2005 S28(1)
CLARE CO COUNCIL v JUDGE KENNY 2009 1 IR 22 2008/7/1316 2008 IEHC 177
SAFETY HEALTH & WELFARE AT WORK ACT 2005 S28
FAULKNER v MIN FOR INDUSTRY 1997 8 ELR 107 1997/3/953
O'NEILL & QUINN v GOVERNOR OF CASTLEREA PRISON & ORS 2004 1 IR 298
CREEDON, STATE v CRIMINAL INJURIES COMPENSATION TRIBUNAL 1988 IR 51 1989 ILRM 104 1988/1/79
UNFAIR DISMISSALS (AMDT) ACT 1993 S14
TRADE UNION ACT 1941
TRADE UNION ACT 1971
MATERNITY PROTECTION ACT 1994 S38(5)
UNFAIR DISMISSALS ACT 1977 S6(2A)
UNFAIR DISMISSALS ACT 1977 S2(1)
ADOPTIVE LEAVE ACT 1995 S25
ADOPTIVE LEAVE ACT 1995 S24
PARENTAL LEAVE ACT 1998 S25(2)(B)
PARENTAL LEAVE ACT 1998 S25(2)(A)
UNFAIR DISMISSALS ACT 1977 S6(2)(DD)
CARER'S LEAVE ACT 2001 S27(2)(B)
CARER'S LEAVE ACT 2001 S27(2)(A)
NATIONAL MINIMUM WAGE ACT 2000 S36(2)
NATIONAL MINIMUM WAGE ACT 2000 S36(1)
SAFETY HEALTH & WELFARE AT WORK ACT 2005 S27(1)
EMPLOYMENT
Unfair dismissal
Tribunal - Jurisdiction of tribunal - Refusal of jurisdiction - Failure to give reasons -One year continuous service requirement - Exceptions to requirement - Claim that decision of respondent fundamentally flawed and defective - Whether one year continuous service requirement applied - Whether respondent acted ultra vires in refusing jurisdiction - Whether unfair dismissal - Whether duty to give reasons - Whether adequate reasons given - Faulkner v Minister for Industry and Commerce [1997] ELR 107 and State (Creedon) v Criminal Injuries Compensation Tribunal [1988] 1 IR 51 applied - Clare County Council v Kenny [2008] IEHC 177 [2009] 1 IR 22 and O'Neil v Governor of Castlerea Prison [2004] IESC 7 & 73 [2004] IR 298 considered -Unfair Dismissals Act 1977 (No 10) ss 2 and 6 - Unfair Dismissals (Amendment) Act 1993 (No 22) s 14 - Maternity Protection Act 1994 (No 34) s 38 - Adoptive Leave Act 1995 (No 2) s 25 - Parental Leave Act 1998 (No 30) s 25 - Carer's Leave Act 2001 (No 19) s 27 - National Minimum Wage Act 2000 (No 5) s 36 - Safety Health and Welfare at Work Act 2005 (No 10) ss 27, 28 - Relief refused (2009/198JR - Hedigan J - 13/5/2010) [2010] IEHC 178
Sharma v Employment Appeals Tribunal
Facts: The proceedings concerned two joined cases where the applicants in both cases sought to quash determinations of the respondent. The applicants were both employees of the notice party whose employment had been terminated. The respondent Tribunal had had determined that it did not have jurisdiction to hear the case as under the Unfair Dismissals Acts 1977 to 2007 the claimants needed one year's continuous service and that the Safety, Health and Welfare at Work Act 2005 was silent on the requisite service needed. The applicants submitted that one of the exceptions to the requirement of one year's continuous service to bring claims under the Unfair Dismissal Acts 1977 to 2007 for employees whose dismissal resulted from penalisation.
Held by Hedigan J. that having regard to the principle of expressio unius est exclusio alterius that one year's continuous service for the pursuant of claims under the Unfair Dismissal Acts 1977 to 2007 for penalisation had to apply. The respondent had rightly concluded that it did not have jurisdiction. The lack of reasoning on the part of the respondent did not prevent the applicants from coming to the Court. The reliefs sought would be refused.
Reporter: E.F.
JUDGMENT of Mr. Justice Hedigan delivered on the 13th day of May, 2010.
1. These proceedings concern two joined cases. The applicants in both cases seek to quash determinations the respondent made in respect of their claims on the 6 th January, 2009. They also seek to have their claims remitted to a differently constituted panel of the respondent, together with various declaratory reliefs.
2. The applicants were both employees of the notice party whose employment was terminated.
3. The respondent is an independent statutory body established to deal with and adjudicate on employment disputes under certain statutes, including inter alia the Unfair Dismissals Acts 1977-2007. It was originally established under s.39 of the Redundancy Payments Act 1967 and was formerly known as the Redundancy Appeals Tribunal. Under s.18 of the Unfair Dismissals Act 1977 ("the Act of 1977") the name of the tribunal was changed to the Employment Appeals Tribunal. The scope of the disputes the respondent may deal with has been extended over the years by various enactments.
4. The notice party is a company which provides security services. Its address is 163 Lower Kimmage Road, Kimmage, Dublin 6W. It did not participate in these proceedings nor did it participate in the proceedings before the respondent.
5. Leave to apply by way of judicial review was granted by this Court (Charleton J.) in both cases on the 23 rd February, 2009 for the following identical reliefs:-
(a) An order of certiorari to quash the determination of the respondent of the 6 th January 2009 as notified by letter of the 20 th January 2009 on the grounds that it is fundamentally flawed and defective.
(b) An order of mandamus directing the respondent to consider and determine in accordance with law the applicant's claim under the Unfair Dismissals Acts 1977-2007.
(c) A declaration that the determination of the respondent dated 6 th January, 2009 and as notified by letter of 20 th January, 2009 declining jurisdiction to hear and refusing to proceed with the hearing of the applicant's claim for unfair dismissal under the Unfair Dismissals Acts 1977-2007 is ultra vires and without efficiency and/or is unreasonable, irrational and perverse and in breach of fair procedures and natural justice.
(d) A declaration that the respondent erred in law in making its determination.
(e) A declaration that the said determination has culminated in a nullity.
(f) A declaration that the respondent did not make clear on what grounds it declined jurisdiction and on what legal principles were applied.
(g) A declaration that the respondent's reasoning in declining jurisdiction was not sufficient to enable the applicant to understand the basis for its conclusions.
(h) A declaration that the respondent, in failing to give adequate reasons for its decision in so declining jurisdiction did not provide due process and failed to observe the requirements of Article 6 of the European Convention on Human Rights.
(i) An order remitting the claim to a different constituted division of the respondent.
6. Both of the applicants submitted claims to the respondent pursuant to the Unfair Dismissals Acts, 1977-2007 on the 12 th December, 2007 having both been dismissed from their employment by the notice party. Mr. Sharma was employed by the notice party as a security guard from the 19 th November, 2006 until the 4 th October, 2007 (approximately 11 months). Mr. Saharan was also employed by the notice party as a security guard from the 28 th April, 2007 until the 4 th November, 2007 (approximately 6 months). Both of the applicants are represented by Mr. John Connellan, Solicitor of Carley & Co. Solicitors. Mr. Connellan filled out two notices of claim on their behalf and submitted them to the respondent.
7. Both applicants alleged that they were constantly threatened with losing their jobs if they did not work the hours they were asked. In Mr. Sharma's notice of claim it was stated, inter alia, that he refused to work another night shift having worked for the previous fourteen nights and that he also refused to work as he had not been paid for 139 hours he claimed he was due. In Mr. Saharan's notice of claim it is stated, inter alia, that he was owed over 200 hours pay, that his employer refused to pay this and that the employer claimed Mr. Saharan's pay would be deducted in respect of damage caused at a break-in on a site Mr. Saharan had worked on. Both of the applicants also indicated in their notice of claim forms that they had been penalised and dismissed within the meaning of s.27 of the Safety, Health and Welfare at Work Act 2005 ("the Act of 2005"). That provision seeks to protect employees from dismissal and penalisation. Both of the applicants sought the remedy of compensation.
8. The respondent sat to hear the applicants' claims on the 4 th December, 2008. The applicants' solicitor made oral submissions, having also furnished written submissions to the respondent in advance of the hearing. The written submissions stated that the applicants made complaints to their employer regarding a lack of rest breaks, a health and safety matter. The final paragraph of those written submissions stated as follows:-
"There was no time requirement within the Health Safety and Welfare Work Act 2005 and therefore the Applicant respectfully submits that they are entitled to bring a claim of unfair dismissal arising out of that act and may be compensated in accordance with that act."
The notice party was not present at the hearing. A determination was issued by the respondent on the 6 th January, 2009 declining jurisdiction in the matter. The...
To continue reading
Request your trial
-
Stobart (Ireland) Driver Services Ltd v Keith Carroll
...FOR JUSTICE 2013 1 ILRM 73 2012/24/6926 2012 IESC 59 SHARMA & SAHARAN v EMPLOYMENT APPEALS TRIBUNAL & ANOR 2010 21 ELR 262 2010/46/11698 2010 IEHC 178 SAFETY HEALTH & WELFARE AT WORK ACT 2005 S27(2)(A) EEC DIR 391/1989 EEC DIR 383/1991 EMPLOYMENT Dismissal Appeal from decision of Labour Co......
-
S.M. v The Minister for Justice
...in the decision in Mallak. Counsel also makes reference to the dicta of Hedigan J. in Sharma & Saharan v. Employment Appeals Tribunal [2010] IEHC 178 who stated, ‘ 1. The courts have held that the duty of administrative tribunals to give reasons in their decisions is not a particularly oner......