The State (Aer Lingus Teo.) v Labour Court

• Jurisdiction: Ireland
• Judge: HEDERMAN J.
• Judgment Date: 01 January 1987
• Neutral Citation: 1986 WJSC-SC 18
• Court: Supreme Court
• Date: 01 January 1987
• Docket Number: (23/85)

1986 WJSC-SC 18

THE SUPREME COURT

Finlay C.J.

Henchy J.

Hederman J.

(23/85)

AER LINGUS v. LABOUR COURT OWEN MCHENRY O'MURCHU

STATE SIDE

THE STATE (AT THE PROSECUTION OF AER LINGUSTEORANTA)

Prosecutor/Appellant

and

THE LABOUR COURT, EVELYN OWEN, CORMAC P. McHENRY AND SEANO'MURCHU

Respondents

Citations:

ANTI-DISCRIMINATION (PAY) ACT 1974 S6(4)

EMPLOYMENT EQUALITY ACT (APPOINTED DAY) ORDER 1977 SI 209/1977

EMPLOYMENT EQUALITY ACT 1977 S19

EMPLOYMENT EQUALITY ACT 1977 S19(2)

EMPLOYMENT EQUALITY ACT 1977 S19(3)

EMPLOYMENT EQUALITY ACT 1977 S19(4)

EMPLOYMENT EQUALITY ACT 1977 S19(5)

EMPLOYMENT EQUALITY ACT 1977 S2(b)

EMPLOYMENT EQUALITY ACT 1977 S20

EMPLOYMENT EQUALITY ACT 1977 S20(A)

EMPLOYMENT EQUALITY ACT 1977 S21

EMPLOYMENT EQUALITY ACT 1977 S26

EMPLOYMENT EQUALITY ACT 1977 S27(1)

EMPLOYMENT EQUALITY ACT 1977 S27(2)

EMPLOYMENT EQUALITY ACT 1977 S3

EMPLOYMENT EQUALITY ACT 1977 S34

EMPLOYMENT EQUALITY ACT 1977 S39

EMPLOYMENT EQUALITY ACT 1977 S44

WYKES DECEASED, IN RE 1961 CH D 262

EMPLOYMENT EQUALITY ACT 1977 S42

EMPLOYMENT EQUALITY ACT 1977 S43

EMPLOYMENT EQUALITY ACT 1977 S40

EMPLOYMENT EQUALITY ACT 1977 S41

EMPLOYMENT EQUALITY ACT 1977 S3(2)

Synopsis:

STATUTORY INTERPRETATION

Legislature

Intention - Time limit - Whether time limit imposed for lodgement of a reference under s.20 of Act of 1977 - Section 20 providing that a reference under that section to Labour Court "Shall be dealt with" as if it were a reference under section 19 of the Act - Section 19(5) providing that, unless reasonable cause is shown, a reference under s.19 shall not be lodged after a specified period - Ordinary meaning to be applied - Held that time limit in s.19(5) applied to a reference under s.20 of the Act - Decision of High Court (17/12/85) reversed - Employment Equality Act, 1977, ss.19, 20 - (23/85 - Supreme Court - 4/7/86) - [1987] ILRM 373

|The State (Aer Lingus Teo.) v. The Labour Court|

EMPLOYMENT

Discrimination

Marriage - Retirement - Women - Airline - Scheme requiring female cabin crew to retire on marriage - Re-employment in 1980 of personnel who had retired on marriage - Complaint that terms and conditions of re-employed women were worse than those applicable to cabin crew who had not married or who had married after abandonment of scheme - Reference of matter to Labour Court pursuant to s.20 of Act of 1977 after expiry of six months from date when first alleged discrimination occurred - Section 20 of Act stating that reference under that section shall be dealt with "as if it were" a reference under s.19 of the Act - Provisions of s.19(5) stating that, unless reasonable cause has been shown, a reference to the Labour Court under s.19 shall not be lodged after expiry of said period - Reasonable cause not shown for late lodgment of reference under s.20 of Act - Held that the time limit provisions of s.19 were applied by s.20 to a reference under that section - Decision of High Court (17/12/85) reversed - Decision of Labour Court, referring complaint to equality officer, quashed on certiorari - Employment Equality Act, 1977, ss.19, 20 - (23/85 - Supreme Court - 4/7/86) - [1987] ILRM 373

|The State (Aer Lingus Teo.) v. The Labour Court|

1 JUDGMENT delivered the 4th day of July 1986by HEDERMAN J.[NEM DISS]

2 This is an appeal by the prosecutor from the judgment and order of the High Court perfected on the 15th January 1986 in which the High Court allowed the cause shown by the respondents and the Employment Equality Agency (the notice party to these proceedings) against the conditional order of certiorari and prohibition, and ordered that the said conditional order be discharged and the awarding of costs of the said proceedings to the respondents and the notice party.

3 The facts may be briefly summarised as follows:-

4 Until the month of August 1970 female employees in Aer Lingus retired on marriage and a superannuation scheme contained provisions for a marriage gratuity for these employees on retirement. This provision applied to cabin crew or air hostesses prior to 1970. Throughout the period 1970 to 1977 an established practice was retained whereby ex cabin crew or air hostesses were employed as temporary seasonal employees to cover the Summer peak and, on occasions, other peaks within the year. Employment each year was "subject to suitability" and a selection procedure, including interviews, was operated, when the numbers of applicants exceeded the number of places.

5 In February of 1980 Aer Lingus agreed to offer employment to a group of 28 former cabin crew or air hostesses, who had resigned on their marriage prior to 1970, subject to their passing an assessment of suitability, in place of the next normal intake of cabin crew. This agreement was entered into between Aer Lingus and the Federated Workers Union of Ireland, and signed on behalf of each applicantsubsequently.

6 In compliance with the agreement these 28 persons were interviewed and examined and all found to be suitable. Each was then individually offered employment in writing by Aer Lingus on similar terms andconditions (with variations as to salary) which each member of the group accepted, commencing work on the 19th May 1980. It was a fundamental term of the agreement that on their taking up employment on the 19th May 1980 their seniority ranked as of that date.

7 It was found by the trial Judge as a matter of fact that each member of the group was fully aware of the importance of seniority at the time of the negotiations prior to the agreement above referred to.

8 During the seasons 1980-1981 each member of the group worked on the basis of her seniority as of the 19th May 1980 without any one making any complaint. They also worked in the 1982 season on this basis.

9 In August of 1982, 27 of the 28 in this group made a complaint to Aer Lingus of discrimination under the Employment Equality Act, 1977in the following terms:

10 ......... "I believe that I am being discriminated against under section 2(b) and section 3 of the Employment Equality Act, 1977, as the company is failing to take into account my service, both permanent and temporary, prior to my re-employment in 1980, for use in deciding seniority ranking, affecting all aspects of my job including choice of route, pay, holidays, leave allotment, pensions,etc.".

11 This complaint was referred to the Labour Court by the complainants pursuant to s. 19 of the Employment Equality Act, 1977. The reference was referred to an equality officer of the Labour Court in pursuance of the procedure prescribed in s. 19. Aer Lingus, in their written submissions to the equality officer, on the 21st February 1983, raised, as a preliminary point, the absence of jurisdiction of the Labour Court to investigate this dispute by reason of s. 19(5) of the Act, which reads as follows:

"Save only where a reasonable cause can be shown, a reference under this section shall be lodged not later than six months from the date of the first occurrence of the act alleged to constitute thediscrimination."

12 In the preparation of their case for this reference, the complainants were assisted by the Employment Equality Agency established under s. 34 of the Employment Equality Act, 1977. The Agency was established on the 1st October 1977 by Statutory Instrument 209 of 1977.

13 After further submissions, an oral hearing was held before a division of the Labour Court on the 27th June 1983 at which both parties were represented by solicitor and counsel. The Labour Court made a determination that reasonable cause had not been shown by thereference of the dispute in regard to the alleged act of discrimination of the 1st July 1977 as it was not lodged within six months of the first occurrence. In effect, this was a decision not to entertain the reference of this dispute. From this decision none of the complainants exercised their right of appeal under s. 21 of the Act.

14 By letter dated the 7th December 1983 the Employment Equality Agency purported to prefer a fresh reference under s. 20 of the Act, alleging that Aer Lingus were in breach of s. 2(b) read with s. 3(1), (2), (3), (4), (5), (6). This letter, which was addressed to Mr. David Kennedy, Chief Executive, Aer Lingus, Dublin Airport, commenced as follows:

"Dear Mr. Kennedy,

You are no doubt aware of the pending claim to the Labour Court by certain of your married women cabin crews against Aer Lingus under the Employment Equality Act, 1977, and of the Labour Court's recent decision on the scope of its jurisdiction in the matter.

The Agency has received a letter on behalf of the claimants requesting us to refer wider aspects of the matter to the Labour Court under Section 20 of the Act. I enclose a copy of their letter which explains the grounds on which the claimants have requested us to take this step. This is acourse which the claimants indicated in their letter of the 15th March 1983, to the Equality Officer, that they might request, if it were subsequently determined that they were precluded by Section 19(5) from having any of their complaints considered by the LabourCourt."

15 The letter went on to ask Aer Lingus for their observations etc. and in particular having regard to the provisions of s. 20(a) of the Act of 1977. The Equality Agency in its submissions to Aer Lingus identified the group in Appendix (1) and it is apparent that the persons alleged to be members of the group are 27 of the 28 air hostesses who had made the reference under s. 19 of the Act.

16 The substance of the discrimination alleged is expressed at paragraph 15 of the submissions in the following words:

17 "The activating cause of the continuing less favourable treatment of the group was its members status as women who married before August 1970. As a direct consequence of their becoming married they havebeen:-

18 (i) Compelled...