Sunday Newspapers Ltd v Kinsella & Bradley

• Jurisdiction: Ireland
• Judge: MR JUSTICE T.C. SMYTH
• Judgment Date: 03 October 2007
• Neutral Citation: [2007] IEHC 324
• Court: High Court
• Date: 03 October 2007

[2007] IEHC 324

THE HIGH COURT

Record Number:2006/406 Sp

Sunday Newspapers Ltd v Kinsella & Bradley

Between/

Sunday Newspapers Limited

Plaintiff/Appellant

And

Stephen Kinsella and Luke Bradley

Defendents/Respondents

PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT 2003 S15(6)

BATES v MODEL BAKERY LTD 1993 1 IR 359 1993 ILRM 22 1992/8/2550

REDUNDANCY PAYMENTS ACT 1967

ASHFORD CASTLE LTD v SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION (SIPTU) 2006 ELR 201

INDUSTRIAL RELATIONS (AMDT) ACT 2001

C & D FOOD LTD v CUNNION 1997 1 IR 147

O'LEARY v MIN FOR TRANSPORT 1998 1 IR 558

COASTAL LINE CONTAINER TERMINAL LTD v SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION (SIPTU) 2000 1 IR 549 2000 ELR 1 1999/4/839

MARA (INSPECTOR OF TAXES) v HUMMINGBIRD LTD 1982 2 ILRM 421

HENRY DENNY & SONS (IRL) LTD v MIN FOR SOCIAL WELFARE 1998 1 IR 34

ELECTRICITY SUPPLY BOARD (ESB) v MIN FOR SOCIAL & FAMILY AFFAIRS & ORS UNREP GILLIGAN 21.2.2006 2006 IEHC 59

PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT 2003 S6

PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT 2003 S12

UNFAIR DISMISSALS ACT 1977 S13

PAYMENT OF WAGES ACT 1991 S11

PROTECTION OF EMPLOYEES (PART-TIME WORK) ACT 2001 S14

HURLEY v ROYAL YACHT CLUB 1997 ELR 225

TALBOT (IRELAND) LTD v MIN LABOUR UNREP BARRON 12.12.1984 1985/3/725

PMPA INSURANCE CO LTD v KEENAN & ORS 1985 ILRM 173

MIN LABOUR v O'CONNOR & IRISH DUNLOP CO LTD UNREP KENNY 6. 3.1973

SHORTER OXFORD ENGLISH DICTIONARY

FITZGERALD v PAT THE BAKER 1999 ELR 227

PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT 2003 S6(2)

BARBER v GUARDIAN ROYAL EXCHANGE 1990 ECR 1889

EMPLOYMENT LAW

Labour Court

Appeal on point of law to High Court - Procedure to be adopted by High Court - Whether signed agreement in full and final settlement of all claims whether under statute or not - Whether agreement precluding claimants from bringing claim under statute - Whether unsustainable inferences drawn from primary facts by Labour Court - Whether decision of Labour Court containing error of law - Protection of Employees (Fixed Term Work) Act 2003 (No 29), s 15(6) - PMPA v Keenan [1985] ILRM 173 distinguished - Appeal allowed (2006/406SP - Smyth J - 3/10/2007) [2007] IEHC 324

Sunday Newspapers v Kinsella

Facts This case originated with a ruling by a Rights Commissioner who found that the respondents voluntarily and having had union representation, accepted a severance package and signed a waiver confirming their acceptance of terms in "full and final settlement" and thus found against them. They appealed to the Labour Court who found in their favour and increased the amounts. The company appealed to the High Court. Submissions were made in regard to the issue that the claimants had the benefit of advice from union representatives. On advice they obtained they believed that they were not signing away their rights in the document they signed. Counsel for the company submitted that the question of whether statutory rights in a contract have been compromised was a matter for the proper construction of the contract itself. In the contract at issue it expressly stated to be in full and final settlement and that means what it says.

Held by Smyth J in upholding the appeal of the company;

The findings by the Labour Court in regard to the 'parting terms' and general conditions were at odds with the law and facts.

The claimants, as fixed term employees were treated differently but in no less a favourable manner to a comparable employee. Henry Denny & Sons (Ireland) Ltd v Minister for Social Welfare [1998] 1 IR 34 followed.

In regard to the waiver, the Labour Court in reaching their decision had not examined in the course of negotiations between the parties to ascertain what was intended, yet concluded that the respondents were fully satisfied they had not entered into a binding agreement to settle their claim. The inference drawn by the Labour Court was incorrect. PMPA v Keenan [1985] ILRM 173 distinguished.

Reporter: BD

1 MR JUSTICE T.C. SMYTH DELIVERED THE 3RD DAY OF OCTOBER 2007

Appearances

For the Appellant:

Mr. Mark Connaughton SC

Mr. Oisin Quinn BL

Instructed by:

Fanning & Kelly

2 Hatch Lane

Hatch Street

Dublin 2

For the Respondent:

Mr. Anthony Kerr BL

Instructed by:

James A. Connolly & Co.

13 St. Andrews Street

Dublin 2

MR. JUSTICE T.C. SMYTH DELIVERED HIS JUDGMENT AS FOLLOWS

2 This appeal comes before the Court pursuant to Section 15(6) of the Protection of Employees (Fixed-Term Work) Act, 2003 ("the 2003 Act"), which provides:

"A party to proceedings before the Labour Court under this section may appeal to the High Court from a determination of the Labour Court on a point of law and the determination of the High Court shall be final and conclusive.".

3 The background to the litigation is that on 25th October 2005 a Rights Commissioner heard complaints under the 2003 Act brought by the two Defendants ("the claimants"), both of whom are members of the Technical, Engineering and Electrical Union (T.E.E.U) ("the Union"). The Plaintiff company ("the company") submitted that both claimants had signed a severance agreement which, inter alia, stated as follows:-

"Lump SUM

This is in full and final settlement of any and all outstanding entitlements whether statutory or otherwise, e.g. Notice Pay, Collective Agreement Notice, Holidays, Statutory Redundancy, and any other discretionary payments/allowances. This is subject to the Parting Terms document."

"Acknowledgement

This agreement is based on any/all claims in relation to my employment with Sunday Newspapers Limited and/or Terenure Printers Limited, stated or as yet un-stated, being fully resolved (including, but not limited to all claims under the Unfair Dismissals Acts, the Minimum Notice and Terms of Employment Acts, the Protection of Employment Acts and the Redundancy Payments Acts and all or any employment legislation). I have read and understand the above agreement and by my signature below acknowledge and accept the terms in full and final settlement."

4 The Rights Commissioner having considered the submissions of the parties found that the claimants voluntarily, and with the benefit of the representation of their Union, accepted a severance package and signed a waiver that confirmed their acceptance of the terms "in full and final settlement" and accordingly, found against the claimants. That decision was appealed to the Labour Court pursuant to S.15 of the Act of 2003. The appeal was successful and it was determined that the complaints were well founded and that the claimants who had received €20, 541.36 and €30, 103.03 respectively on the signing in July 2006 "in full and final settlement of all claims and entitlements" were entitled to further monies of €27, 752.08 and €40, 483.85 respectively.

5 The decision of the Supreme Court in Bates v- Medel Bakery Ltd [1993]/IIR 359 in the context of an appeal from the Employment Appeals Tribunal under the Redundancy Payments Act, 1967 and of the High Court in Ashford Castle Ltd. V- Services Industrial Professional Technical Union [2006]/ ELR 201 in the context of an appeal from the Labour Court under the Industrial Relations (Amendment) Act 2001 point to the desirability of the court expressly confining itself in its enquiries in an appeal on a point of law. These cases and C & D Food Ltd. V- Cunnion [1997] I.I.R, 147 and O'Leary v- Minister for Transport [1998] I.I.R, 558 and Costal Line Container Terminal Ltd. V- Siptu [2000] I.I.R 549 make it clear that it is not open to the High Court in its appelate function in the context of a determination on a point of law to seek to try anew or take into account facts put before the Court (in whatever procedural guise) which were not before the expert tribunal. However, the jurisdiction given to the Court by statute has been interpreted as including an entitlement to review the mixed questions of law and fact and in addition whether there was evidence to support any findings of fact made by the statutory body whose decision was under appeal (see Mara (Inspector of Taxes) v- Hummingbird Ltd [1982] 2 I.L.R.M 421 and Henry Denny & Sons (Ireland) Ltd v- Minister for social Welfare [1998] 1/ 1.R.34). In the course of his judgment in Denny's case Hamilton, C.J. said (at p.37/8) as follows:-

"...the courts should be slow to interfere with the decisions of expert administrative tribunals. Where conclusions are based on an identifiable error of law or an unsustainable finding of fact by a tribunal such conclusions must be corrected.".

6 More recently Gilligan, J, in Electricity Supply Board v- Minister for Social, Community and Family Affairs (The High Court: Unreported 26th February, 2006) observed:

"Inferences of fact should not be disturbed unless they are such that no reasonable tribunal could arrive at the inference drawn and further if the court is satisfied that the conclusion arrived at adopts the wrong view of the law, then this conclusion should be set aside."

7 Much learned argument was put before the Court by counsel for the parties under S. 6 and 12 of the 2003 Act. It is unnecessary to seek to resolve all the differences of interpretation of nice points of statute law. In the instant case there is as an undisputed fact, a written agreement signed by the parties on 13th July 2005. Section 12 of the 2003 Act provides:-

"save as expressly provided otherwise in this Act, a provision in an agreement (whether a contract of employment or not and whether made before or after the commencement of the provision concerned of this Act) shall be void insofar as it purports to exclude or limit the application of, or is inconsistent with, any provision of this Act."

8 The Labour Court noted that this provision is in similar terms in other employment rights statutes (e.g. s.13 of the Unfair...