FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 77(12), EMPLOYMENT EQUALITY ACTS, 1998 TO 2008 PARTIES : GREEN ISLE FOODS LIMITED (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - DADA LADENEGAN (REPRESENTED BY KEVIN TUNNEY SOLICITORS) DIVISION : Chairman: Mr Hayes Employer Member: Mr Murphy Worker Member: Ms Ni Mhurchu |
1. Appeal under Section 77(12) of the Employment Equality Acts, 1998 to 2008
BACKGROUND:
2. The matter comes before the Court pursuant to an appeal by the Complainant against a Direction of the Equality Officer that was made pursuant to Section 77(5) of the Employment Equality Acts 1998 to 2004 (the Act).
DETERMINATION:
The Complainant referred a complaint to the Equality Tribunal on 21st November, 2007 alleging that the Respondent discriminated against her on the race ground on 3 March 2007. As the complaint was submitted to the Equality Tribunal more than 6 months but less than 12 after the alleged discriminatory act occurred the Complainant sought an extension of the time limit pursuant to Section 77(5) of the Act.
The Equality Officer issued a Direction in the following terms:-
- “It is my opinion that the complainant has not established reasonable cause for the delay in referring her complaint. I, therefore, am not empowered to direct an extension of time in which to refer a complaint to twelve months in this case.”
Section 77(12) of the Act says
- 12) (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.
(b) On the appeal the Labour Court may affirm, quash or vary the decision.
( c) Unless otherwise agreed by the complainant and respondent, effect shall not be given to a decision of the Director on such an application until –
(2)any appeal against it has been determined
The Court wrote to the parties on 25 August 2010 seeking submissions on the issue of whether the Court had jurisdiction under Section 77 (12) to consider an appeal against a direction issued pursuant to Section 77(5). The Court conducted an oral hearing on the preliminary issue on 1 September 2010.
Position of the Parties:
The Complainant’s Position
Counsel for the Complainant made the following submissions to the Court
•It has been the practice of the Court to deal with appeals of decisions of the Director of the Equality Tribunal in respect of applications for extension of time pursuant to section 77(5) of the Employment Equality Acts 1998 – 2005 under section 77(12) of the Act. Reference was made to the following Labour Court Determinations
oDepartment of Finance v Augustine O’Connell EET091 2009
oElephant Haulage Limited v Mindaugas Juskas EET082 2008
- For reasons of certainty, stability, predictability and consistency the appeal should be allowed.
Ms Kerry Molyneaux (IBEC) for the Respondent made the following submissions to the Court:-
•The express provision of Section 77(12) relates to an application by a complainant for an extension of time under Subsection (6). No such application arises in this case. On a plain and ordinary reading of Section 77(12) (a) there is no jurisdiction to allow the Court to hear arguments as to the existence of reasonable cause to grant an extension of the time limits under Subsection (6) in respect of a direction issued under Subsection (5).
•Section 5 of the Interpretation Act 2005 states:
o5. – (1) In construing a provision of any Act (other than a provision that relates to the imposition of a penal or other sanction) –
(a) that is obscure or ambiguous or
(b) that on a literal interpretation would be absurd or would fail to reflect the plain intention of –
(i) in the case of an Act to which paragraph (a) of the definition of “Act” in section 2(1) relates, the Oireachtas, or
(ii) in the case of an Act to which paragraph (b) of that definition relates, the parliament concerned,
- the provision shall be given a construction that reflects the plain intention of the Oireachtas or parliament concerned, as the case may be, where that intention can be ascertained from the Act as a whole.
•The provisions of Section 77 (12) must be read in the context of the statute as a whole where the Oireachtas expressly provided for consideration of the point at issue (statutory requirements relating to the referral) in Section 79 (3a) where it states:
- “(3A) If, in a case which is referred to the Director under Section 77, a question arises relating to the entitlement of any party to bring or contest proceedings under that Section, including:
- (a) whether the complainant has complied with the statutory requirements relating to such referrals,
(b) whether the discrimination or victimisation concerned occurred on or after 18 October 1999,
(c) whether the Complainant is an employee, or
(d) any other related question of law or fact,
An appeal from a Decision of the Director under this section is provided for in Section 83. There is no such appeal before the Court in this case. - (a) whether the complainant has complied with the statutory requirements relating to such referrals,
- “ if there is nothing to modify, alter or qualify the language which the statute contains, it must be construed in the ordinary and natural meaning of the words and sentences” :Maxwell on Interpretation of Statutes (12th ed.) at page 28 Egan J supported that contention as follows:
- “There is an abundant authority for the presumption that words are not used in a statute without a meaning and are not tautologous or superfluous, and so effect must be given, if possible, to all the words used, for the legislature must be deemed not to waste words or say anything in vain”
Findings of the Court:
Section 77(12) of the Act provides for an application to the Court by a complainant against a decision of the Director not to grant an extension of time under Section (6) of the Act.
In this case the Director made a direction pursuant to Section 77(5) of the Act. The Court is asked to consider an appeal against that decision under Section 77(12), of the Act. Section 77 (12) provides for appeals against decisions made pursuant to Section 77(6) of the Act. Accordingly on the face of it the Court has no statutory jurisdiction to consider such an appeal.
The Court considered whether the matter comes within the scope of Section 5 (1) of the Interpretation Act 2005. In order to do so however two conditions must be met. The statutory provision must be either“obscure or ambiguous”or “on a literal interpretation would be absurd or would fail to reflect the plain intentionof” … the Oireachtas”in which circumstance the “provision shall be given a construction that reflects the plain intention of the Oireachtas or parliament concerned, as the case may be, where that intention can be ascertained from the Act as a whole”.
In this case the statutory provision is not “obscure or ambiguous.” Furthermore a literal interpretation of the provision of the Act cannot be said to be absurd.
The Court cannot identify any justification for reaching the conclusion that a literal interpretation of the provision of the statute would fail to reflect the plain intention of the Oireachtas.
The Court notes the submission of the Complainant that it has, under Section 77 (12) determined appeals from directives issues by the Director pursuant to Section 77 (5). This issue was not brought to the Court’s attention in those cases and an error in law must be corrected at the first opportunity rather than be repeated for the sake of consistency or certainty.
Accordingly the Court finds that it is required to construe the provision “in the ordinary and natural meaning of the words and sentences” in which it is written.
The Court determines that it does not have jurisdiction to hear the appeal under Section 77 (12) against a decision of the Director not to issue a directive to extend time pursuant to Section 77 (5) of the Act..
The Court notes that the Complainant wishes to make additional submissions on other grounds for the Court’s consideration and accordingly a hearing will be scheduled to hear these.
The Court so determines.
Signed on behalf of the Labour Court
Brendan Hayes
31st December, 2010______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.