PTD048

Background

This case came before the Court in the following circumstances:

On the 27th November, 2002, SIPTU presented a claim to a Rights Commissioner on behalf of 189 named part-time school bus drivers employed by Bus Eireann alleging that they were being denied equal pay with full-time bus drivers contrary to Section 9 of the Protection of Employees (Part-Time Work) Act, 2001 (the Act). The matter came before a Rights Commissioner for hearing on the 22nd April, 2003, and the hearing resumed on 4th June, 2003, and again on 16th October, 2003.

An issue arose as to whether the complaint had been referred to the Rights Commissioner within the time limited by Section 16(3) of the Act. At the insistence of the respondent, the Rights Commissioner agreed to issue a preliminary decision on this aspect of the case. In her preliminary decision issued on the 19th March, 2004, the Rights Commissioner ruled that in so far as the claims related to remuneration paid to the complainants more than 6 months before the 27th November, 2002, they were presented outside the time limit prescribed by Section 16(3)of the Act. The Rights Commissioner then proceeded to consider if reasonable cause had been established for extending the time limit pursuant to Section 16(4)of the Act. She held that reasonable cause had been shown and granted SIPTU’s application to extend the time limit up to the date of the commencement of the Act.

The Rights Commissioner indicated in her decision that she intended to proceed to consider the substantive aspects of the claim. The respondents then appealed to this Court against the preliminary decision, and the proceedings before the Rights Commissioner were stayed.

Admissibility of the Appeal.

At the commencement of the hearing, the Court invited the parties to make submissions on whether the preliminary decision of the Rights Commissioner is a decision capable of being appealed under Section 17 of the Act. Having considered the submissions of the parties on this point, and for reasons which follow, the Court is satisfied that the decision is not a decision made under Section 16 of the Act and, therefore, it is not appealable under Section 17 of the Act.

Circumstances in which a preliminary hearing should be held.

There are limited circumstances in which a preliminary point should be determined separately from other issues arising in a case. Normally this should only be done where it could lead to considerable savings in both time and expense. Furthermore, the Superior Courts have taken the view that an application for a preliminary determination can only apply to a question of pure law where no evidence is needed and where no further information is required(See judgement of O’Higgans CJ in Tara Exploration & Development Company Limited v Minister for Industry & Commerce [1975] IR 242).In the present case, the principle issue before the Rights Commissioner was whether or not reasonable cause had been shown to extend the time limit pursuant to Section 16(4). This is not a point of law but is pre-eminently a question of fact.

The High Court has also considered the circumstances in which an appeal may be brought against a preliminary decision of a statutory tribunal.In Teresa Mitchell v Southern Health Board (Cork University Hospital) High Court, Unreported, Barr J 25th February 2000,the question arose as to whether the Southern Health Board was the proper respondent in a claim taken by Dr Mitchell. In a preliminary Determination, the Court found that the case should proceed against the Health Board. The Health Board then sought to appeal this determination to the High Court.

In anex-temporejudgement Barr J struck out the proceedings, holding that they were premature since this Court had not made any finding on whether or not the complainant had been discriminated against. By parity of reasoning it would appear to the Court that since the Rights Commissioner did not make any finding on the substantive claim before her, the present appeal is also premature and should be struck out.

Statutory Provisions:

The position regarding the bringing of appeals against a decision of a Rights Commissioner under the Act is also dealt with in the statute itself in terms which are perfectly clear.

Section 17(1) of the Act provides as follows: -

• “A party concerned may appeal to the Labour Court from a decision of a Rights Commissioner under Section 16 and, if the party does so, the Labour Court shall give the parties an opportunity to be heard by it and to present to it any evidence relevant to the appeal, and shall make a determination in writing in relation to the appeal affirming, varying or setting aside the decision and shall communicate the decision to the parties”.
  

• “(1) An employee or a Trade Union of which the employee is a member, with the consent of the employee, may present a complaint to a Rights Commissioner that the employee’s employer had contravened Section 9 or 15 in relation to the employee and, if the employer or such a Trade Union does so, the Commissioner shall give the parties an opportunity to be heard by the Commissioner and to present to the Commissioner any evidence relevant to the complaint, shall give a decision in writing in relation to it and shall communicate it to the parties.