Transdev Ireland Ltd v Caplis
| Jurisdiction | Ireland |
| Judge | Mr. Justice Richard Humphreys |
| Judgment Date | 23 June 2020 |
| Neutral Citation | [2020] IEHC 403 |
| Court | High Court |
| Docket Number | [2019 No. 267 MCA] |
| Date | 23 June 2020 |
IN THE MATTER OF AN APPEAL PURSUANT TO SECTION 10A OF THE UNFAIR DISMISSALS ACTS 1977 TO 2015
AND
IN THE MATTER OF AN APPEAL PURSUANT TO SECTION 46 OF THE WORKPLACE RELATIONS ACT 2015
[2020] IEHC 403
Richard Humphreys J.
[2019 No. 267 MCA]
THE HIGH COURT
Unfair dismissal – Minimum notice – Points of law – Appellant appealing determinations of the Labour Court – Whether points of law had been made out
Facts: The respondent employee, Mr Caplis, brought unfair dismissal and minimum notice complaints before the Workplace Relations Commission on 6th January, 2018 and the matter came before an adjudication officer, who dismissed the claims on 20th August, 2018. He then appealed to the Labour Court on 28th September, 2018. Following an oral hearing on 9th May, 2019 the Labour Court issued two determinations on 1st July, 2019: (i) UDD1932 under s. 44 of the Workplace Relations Act 2015 and s. 8A of the Unfair Dismissals Act 1977, which found the respondent to have been unfairly dismissed and ordered his re-engagement as a Luas driver, with his absence to be deemed a period of unpaid suspension; and (ii) MND198 under s. 44 of the 2015 Act and under the Minimum Notice and Terms of Employment Acts 1973 to 2005, holding that the minimum notice complaint was moot by reason of the particular remedy granted in the unfair dismissals complaint. The appellant employer, Transdev Ireland Ltd, then filed an originating notice of motion on 8th August, 2019 appealing both determinations. The jurisdiction for the main appeal was s. 10A of the 1977 Act. The other appeal was brought under s. 46 of the 2015 Act. The appellant’s points were summarised under three headings: (i) the Labour Court’s alleged failure to engage with or rationally address the law, specifically s. 6 of the 1977 Act; (ii) the Labour Court’s alleged failure to engage with or rationally address the facts; and (iii) the Labour Court’s alleged failure to give reasons for the order for re-engagement.
Held by Humphreys J that no point of law warranting the allowing of the appeals had been made out.
Humphreys J held that he would dismiss both appeals.
Appeals dismissed.
In May 2005 the employee in this case entered into a contract of employment as a Luas driver with the predecessor company to the employer. The terms of employment prohibited the employee from engaging in other paid employment without permission. He was classed as a safety-critical worker pursuant to the Railway Safety Act 2005.
In 2010 a disciplinary policy was adopted as part of a collective agreement which reiterated the obligation not to engage in other employments without the employer's permission. In 2011 the employee was reminded of this obligation by letter.
On 15th April, 2017 the employer received a complaint that the employee had been seen driving a taxi. The employer engaged a private investigator and obtained evidence that the employee had done so on one particular weekend. The employee admitted that this was so and his mitigating explanation was essentially that he did not do so in any structured ongoing way, but only occasionally to assist his wife who was a taxi driver, but who had fallen seriously ill.
On 17th August, 2017 he was notified of his dismissal. An internal appeal upheld that result on 23rd November, 2017 and a further internal appeal was rejected on 19th December, 2017. He then brought unfair dismissal and minimum notice complaints before the Workplace Relations Commission on 6th January, 2018 and the matter came before an adjudication officer, who dismissed the claims on 20th August, 2018.
He then appealed to the Labour Court on 28th September, 2018. Following an oral hearing on 9th May, 2019 the Labour Court issued two determinations on 1st July, 2019:
(i). UDD1932 under s. 44 of the Workplace Relations Act 2015 and s. 8A of the Unfair Dismissals Act 1977, which found the employee to have been unfairly dismissed and ordered his re-engagement as a Luas driver, with his absence to be deemed a period of unpaid suspension; and
(ii). MND198 under s. 44 of the 2015 Act and under the Minimum Notice and Terms of Employment Acts 1973 to 2005, holding that the minimum notice complaint was moot by reason of the particular remedy granted in the unfair dismissals complaint.
The employer then filed an originating notice of motion on 8th August, 2019 appealing both determinations.
The jurisdiction for the main appeal is s. 10A of the 1977 Act, inserted by s. 80 of the 2015 Act, which allows parties to proceedings before the Labour Court under the 1977 Act to appeal to the High Court, but only “on a point of law”. The other appeal is brought under s. 46 of the 2015 Act which provides that a party to proceedings before the Labour Court under Part 4 of that Act may appeal to the High Court, again only “on a point of law”. In relation to these statutory appeals I have received helpful submissions from Mr. Marcus Dowling B.L. for the employer/appellant and from Mr. Peter Ward S.C. (with Ms. Mary-Paula Guinness B.L.) for the employee/respondent.
Mr. Dowling has presented a somewhat implausible eight pages of grounds of appeal including 45 paragraphs or subparagraphs of alleged errors of law. Lady Hale in R. (Cart) v. Upper Tribunal [2011] UKSC 28, [2012] 1 A.C. 663 (at para. 47) said “[i]t is not difficult to dress up an argument as a point of law when in truth it is no more than an attack upon … factual conclusions”, and it is hard to avoid the feeling that such an exercise has been attempted here. Without doing too much violence to the 45 separate alleged errors of law contended for here, it seems to me that the employer's points can be summarised under three headings:
(i). the Labour Court's alleged failure to engage with or rationally address the law, specifically s. 6 of the 1977 Act;
(ii). the Labour Court's alleged failure to engage with or rationally address the facts; and
(iii). the Labour Court's alleged failure to give reasons for the order for re-engagement.
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