EET092

FULL RECOMMENDATION

REE/09/1

DETERMINATIONNO.EET092

INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 77(12), EMPLOYMENT EQUALITY ACTS, 1998 TO 2007

PARTIES :

CHUBB IRELAND GROUP

- AND -

ROMAN HOSTAK
(REPRESENTED BY EARLY & BALDWIN SOLICITORS)

DIVISION :

Chairman: Ms Jenkinson
Employer Member: Mr Murphy
Worker Member: Mr O'Neill

SUBJECT:
1. Appeal Under Section 77(12) Of The Employment Equality Act, 1998 and 2004

BACKGROUND:

2. The Worker/Claimant referred his case to the Labour Court on the 16th December, 2009, in accordance with Section 77(12) of the Employment Equality Acts, 1998 and 2004. A Labour Court hearing took place on the 26th May, 2009. The following is the Court's determination:

DETERMINATION:

A case referred to the Equality Tribunal on 16th May 2006 Employment Equality Act 1998, as amended (the Act), was dismissed by the Tribunal, for lack of prosecution in accordance with Section 102(1) of the Act. The Tribunal issued a “Notice of Striking Out” to the parties on 10th November 2008.

Mr. Roman Hostak (the applicant), represented by Early & Baldwin Solicitors sought to appeal this notice to the Labour Court under Section 77(12) of the Act. The grounds of the appeal held that the claim before the Equality Tribunal was “still alive”.

The jurisdiction of the Court to hear and determine appeals from a decision of the Equality Tribunal is founded on Sections 77(12) and Section 83 of the Act. Section 77(12) provides for an appeal against a decision of the Equality Tribunal made under subsection (6) of Section 77 in an application to extend the time limit for the making of a complaint.

Section 77 (12) of the Act, provides for an application of extension of time limit
- (a) Not later than 42 days from the date of a decision of the Director on an application by a complainant for an extension of time under subsection (6) , the complainant or respondent may appeal against the decision to the Labour Court on notice to the Director specifying the grounds of the appeal.

Section 83 provides for an appeal against the decision of the Equality Tribunal made pursuant to Section 79, i.e. a substantive decision on a complaint alleging a contravention of the Act.

Section 83
(1) Not later than 42 days from the date of a decision of the Director under Section 79, the complainant or the respondent may appeal to the Labour Court by notice in writing specifying the grounds of the appeal.

The decision which the applicant is seeking to appeal in this case is not a decision covered by either Section 77(12) or Section 83. Rather it is a decision to strike out proceedings for want of prosecution pursuant to Section 102 of the Act.

Section 102 provides:

(1) Where—
- - (a) a case is referred to the Director under Section 77,
    (b) a matter is referred to the Director under Section 85,
    (c) a collective agreement is referred to the Director under Section 86 , or
    (d) a case is referred to the Director under the Anti-Discrimination (Pay) Act 1974 or the Employment Equality Act 1977,
  and, at any time after the expiry of 1 year from the date of the reference, it appears to the Director that the complainant has not pursued, or has ceased to pursue, the reference, the Director may strike out the reference.

And subsection (5) states:

(5) Where a reference or appeal is struck out under this Section, no further proceedings may be taken in relation to that reference or appeal; but nothing in this Section prevents any person from making a further reference in relation to the same matters (subject to any applicable time limit).

The Court’s appellate jurisdiction is derived solely from the statute. The Court has not been given an appellate jurisdiction in respect to decisions of the Director made pursuant to Section 102 of the Act. Accordingly the Court cannot entertain the application made on behalf of the applicant.

Signed on behalf of the Labour Court

Caroline Jenkinson
15th June, 2009______________________
DNDeputy Chairman

NOTE

Enquiries concerning this Determination should be addressed to David P Noonan, Court Secretary.