UD787/2006

EMPLOYMENT APPEALS TRIBUNAL

UNFAIR DISMISSALS ACTS, 1977 TO 2001

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Ms. M. McAveety

Members:     Mr. B. O’Carroll

                     Ms. E. O'Shea

heard this claim at Sligo on 26 October 2007

Representation:

Claimant:    

                Mr. Saul Wolfson B.L. instructed by Mr. Gerard Cullen,

               John Gerard Cullen Solicitors, Main Street, Carrick on Shannon, Co. Leitrim                  

Respondent:

                Ms. Rosemary Mallon B.L. instructed by, Mr. Eamonn M. Gallagher,

                Rochford Gallagher & Co. Solicitors, Tubbercurry, Co. Sligo

The determination of the Tribunal was as follows:

A preliminary issue was raised at the outset of this hearing whereby it was submitted on behalf of the respondent that, as the claimant had lodged claims relating to his dismissal under both the Unfair Dismissals Acts, 1977 to 2001and the Employment Equality Acts, 1998 to 2004, written submissions having been sent to the Equality Tribunal, then, by virtue of subsection 2 (b) of section 101 of the Employment Equality Acts, 1998 to 2004 which provides that……”where an individual has referred a case to the Director under section 77(1) and either a settlement has been reached by mediation or the Director has begun an investigation under section 79, the individual –if he or she was dismissed before so referring the case, shall not be entitled to seek redress (or to exercise, or continue to exercise, any other power) under the Unfair Dismissals Acts 1977 to 1993 in respect of the dismissal, unless the Director, having completed the investigation and in an appropriate case, directs otherwise and so notifies the complainant and the respondent”, this Tribunal had no jurisdiction to hear the claim unless or until the Director directed otherwise.

The Tribunal received submissions, both oral and written, from the parties in this case

Determination:

Having considered the extensive submissions from both parties in this case, it is clear that the point in contention in this preliminary application on behalf of the respondent is, effectively, what is meant by the term “investigation” in subsection 2 (b) of section 101 of the Employment Equality Acts, 1998 to 2004 and further when such an investigation might be considered to have begun. The claimant’s submission is that an investigation is analogous to a hearing and cannot be considered to have begun until the parties have been called to appear before the Director. The respondent’s submission is that an investigation can be considered to be more all-encompassing than a hearing and that the provision of submissions to the Director indicated that such an investigation had begun.

The Tribunal is satisfied that an investigation and a hearing are not analogous, rather that a hearing forms part of an investigation. The Tribunal is further satisfied that the provision of submissions to the Director can be accepted as showing that an investigation has begun. That being the case the Tribunal must find that, in accordance with subsection 2 (b) of section 101 of the Employment Equality Acts, 1998 to 2004, the claimant cannot seek redress under the Unfair Dismissals Acts, 1977 to 2001 unless or until the Director, having completed the investigation and in an appropriate case, directs otherwise and so notifies the complainant and the respondent.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)

                                                                                                   THE HIGH COURT

                                                                                                   JUDICIAL REVIEW

                                                                                                   CASE NO. 2008 88 JR

Wednesday the 12^th day of March 2008

BEFORE MR JUSTICE MACMENAMIN

IN THE MATTER OF THE UNFAIR DISMISSALS ACT 1977

AND THE EMPLOYMENT EQUALITY ACTS 1998-2004

BETWEEN

JAMES CULLEN

                                                                                                             APPLICANT

AND

EMPLOYMENT APPEALS TRIBUNAL

                                                                                       RESPONDENT

AND

CONNAUGHT GOLD LIMITED

                                                                                       NOTICE PARTY

                     Upon Motion of Counsel for the Applicant made unto the Court this day pursuant to Notice of Motion dated the 6^th day of February 2008 in the presence of Counsel for the Notice Party

                     Whereupon and on reading the said Notice of Motion the Order herein dated the 28^th day of January 2008 giving leave to the Applicant to apply for an Order of Certiorari by way of application for judicial review the Statement dated the 28^th day of January 2008 signed by the Solicitor for the Applicant the Affidavit of the Applicant filed on the 28^th day of January 2008 the exhibits therein referred to the Affidavit of service of the said Notice of Motion Order Statement and Affidavit on the Respondent and on hearing what is offered by said respective Counsel

                     And it appearing that this application is not being opposed

                     The Court doth grant an Order of Certiorari in respect of the Order made by the Respondent on the 17^th day of December 2007 as notified by letter of 3^rd January 2008

                     And IT IS ORDERED that the Respondent do proceed with the hearing of the Applicant’s substantive claim for unfair dismissal

                     And IT IS FURTHER ORDERED that the question of the costs of these proceedings be adjourned to the 14^th day of April 2008

                                                                                       ANGELA DENNING

                                                                                       REGISTRAR

                                                                                       PERFECTED 14-04-2008