The Board of Management of Malahide Community School v Conaty
| Jurisdiction | Ireland |
| Judge | Ms. Justice O'Regan |
| Judgment Date | 21 March 2018 |
| Neutral Citation | [2018] IEHC 144 |
| Docket Number | [2017 No. 393 MCA] |
| Court | High Court |
| Date | 21 March 2018 |
IN THE MATTER OF AN APPEAL PURSUANT TO S. 46(6) OF THE WORKPLACE RELATIONS COMMISSION ACT, 2015, AND IN THE MATTER OF THE UNFAIR DISMISSALS ACT, 1977 (AS AMENDED)
[2018] IEHC 144
[2017 No. 393 MCA]
THE HIGH COURT
Employment – Practice & Procedure – O. 84C of the Rules of the Superior Courts – S. 46 of the Workplace Relations Commission Act, 2015 – The Unfair Dismissals Act, 1977 – Unfair dismissal
Facts: The appellant sought to have its appeal allowed and an order dismissing the claims of the respondent or in the alternative an order for remitting the matters for reconsideration before the Labour Court. The appellant contended that there were errors of law in determining that the jurisprudence governing the execution of waivers should be applied in relation to the interpretation and application of a statutory exclusory clause and that the Labour Court had misdirected itself regarding the effect and applicability of s. 2 (2)(b) of the 1977 Act. The respondent argued that the jurisprudence on the waiver of rights was properly applied by the Court.
Ms. Justice O'Regan granted an order for remitting the matter to the Labour Court for reconsideration. The Court held that the Labour Court had failed to apply the correct principle of law in relation to the application of some provisions of s. 2 (2)(b) for lack of reasons for differentiating between the exclusion and the waiver.
The appellant's application is brought by way of notice of motion of the 22nd December 2017, pursuant to the provisions of O. 84C of the Rules of the Superior Courts and s. 46 of the Workplace Relations Commission Act, 2015, being an appeal, on a point of law, in respect of the labour court determination herein of the 22nd November 2017. The appellant seeks to have its appeal allowed and an order dismissing the claims of the respondent or in the alternative an order remitting the matters for reconsideration before the labour court.
There are sixteen enumerated grounds within the notice of motion, however at the hearing of the application before this Court, the 8th March, 2017, the appellant acknowledged that the basis of the appeal might be the subject matter of three separate grounds, namely: -
(i) The fixed term contract was valid and effective notwithstanding the contrary finding by the labour court.
(ii) The labour court was wrong to consider in the manner it did the prior contractual arrangement between the parties.
(iii) The jurisprudence on waiver of vested rights was inappropriately applied by the labour court including on the grounds that a far more careful analysis was required.
A statement of opposition bearing date 20th February, 2018 has been filed on the part of the respondent which essentially seeks to uphold the labour court decision and argue that there was no error of law.
The respondent teacher began working for the appellant school in August 2013 without a written contract, this status continued for the school year of 2013/2014 and again from 2014 to 2015. The respondent continued under such arrangement until the commencement of the school year 2015 to 2016, however, attended an interview on the 2nd October, 2015 and was subsequently advised on the 7th October, 2015 that she was successful. On the 22nd October, 2015, she was furnished with a fixed term whole time teacher temporary contract to cover the period the 8th October, 2015 to the 31st August, 2016. This contract had been executed on the 20th October, 2015 by Patricia McDonagh, principal of the school, on behalf of the appellant. The respondent signed the contract on the 22nd October 2015.
The respondent attended a further interview to secure employment for the school year 2016 to 2017, however was unsuccessful as a consequence whereof the respondent maintained a claim that she was unfairly dismissed. The claim was resisted by the appellant on the basis that the unfair dismissal legislation did not apply by reason of s. 2 (2)(b) of the Unfair Dismissals Act, 1977. The appellant was successful in its argument before the adjudication officer who made a decision on the 24th May, 2017 and the within respondent subsequently appealed this decision by way of appeal on the 8th June, 2017. The labour court held a hearing in respect of the matter on the 25th October, 2017 and ultimately issued a decision on the 22nd November, 2017 when the labour court found that the exclusion provision in the fixed term contract (of the 20th October 2015) could not be relied upon to preclude the application of the Unfair Dismissals Act and therefore the respondent was unfairly dismissed when her contract was not renewed on the 1st September 2016.
Both parties tendered written submissions which were supplemented by oral submissions before the court on the 8th March 2018.
As part of the respondent's submissions the respondent deals with the provisions of s. 13 of the 1977 Act to the effect that it is argued that s. 2 (2)(b) and s. 13 operate in perfect harmony provided that s. 2 (2)(b) is not sought to be used for the purpose of removing or extinguishing rights which have already been acquired. The respondent further argues that the jurisprudence on the waiver of such rights was properly applied.
Both parties accept that the relevant jurisprudence in respect of a waiver provision comprises: -
(i) Hurley v. Royal Yacht Club [1977] ELR 225 (a judgment of Buckley J. in the Circuit Court).
(ii) Sunday Newspapers Limited v. Kinsella and Bradley [2007] IEHC 324 (a judgment of Smyth J. in the High Court).
The respondent further argues that insofar as the appellant suggests that insufficient reasons were afforded by the labour court in arriving at its decision the claim before this Court is not a reasons based appeal and therefore this argument should be ignored.
The appellant counters the respondent's arguments aforesaid in particular in relation to the application of s. 13 of the 1977 Act or its interplay with s. 2 (2)(b) of that Act as the decision of the labour court was not based or did not refer to s. 13 of the 1977 Act at all. The appellant further argues that reasons, or a lack thereof, were incorporated within the claim of the appellant insofar as it was suggested that the labour court erred in law in determining that the jurisprudence generally governing the execution of waivers should be applied in relation to the interpretation and application of a statutory exclusory clause and further that the labour court erred in law in that it misdirected itself in law in relation to the meaning, affect and applicability of s. 2 (2)(b) of the 1977 Act.
Counsel for the...
To continue reading
Request your trial
-
The Board of Management of Malahide Community School v Conaty
...by reserved judgment dated 21 March 2018, the appeal was allowed. See Board of Management of Malahide Community School v. Conaty (No. 1) [2018] IEHC 144. 14 It seems from the judgment that the High Court took the view that the Labour Court's rationale was not evident from its determination.......