FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 83, EMPLOYMENT EQUALITY ACTS, 1998 TO 2008 PARTIES : ASSOCIATION OF SECONDARY TEACHERS OF IRELAND (ASTI) REPRESENTED BY CLIONA KIMBER B.L. (INSTRUCTED BY BYRNE WALLACE SOLICITORS) - AND - GEORGE DUNBAR DIVISION : Chairman: Mr Duffy Employer Member: Ms Cryan Worker Member: Mr Nash |
1. Appeal under Section 83 of the Employment Equality Acts, 1998 to 2008
BACKGROUND:
2. This case concerns an appeal of an Equality Officer's Decision under Section 83 of the Employment Equality Acts, 1998 to 2008. A Labour Court hearing took place on 3rd February, 2011. The following is the Court's Determination:
DETERMINATION:
- This matter came before the Court by way of an appeal by the Association of Secondary Teachers Ireland against a decision of the Equality Tribunal in a claim by Mr George Dunbar alleging discrimination on the age ground, including discriminatory treatment and harassment on the grounds of his age contrary to the Employment Equality Acts 1998-2008 (the Acts). He also made a claim alleging victimisation by the Association of Secondary Teachers Ireland.
In this Determination the parties are referred to as they were at first instance. Hence the Association of Secretary Teachers Ireland (which is the appellant in this case) is referred to as the Respondent and Mr Dunbar is referred to as the Complainant.Background
The Respondent is a well-known trade union of secondary teachers. The Complainant was a member of that trade union at all material times. He brought the within complaints against the Respondent arising from a serious of events involving other members of the Respondent acting in their capacity as members or officials of the Union.
The facts of the case are fully and accurately recited in the Decision of Equality Officer. For present purposes it is sufficient to say that the essence of the Complainant’s claim is that the Respondent is liable for discriminatory acts committed against him by its members while acting on its behalf. The Complainant further alleges that he was victimised by the Respondent in relation to a number of further incidents for having made an earlier complaint under the Acts.
The matter ran for five days before the Equality Tribunal and in a decision dated 30th June 2009 the Equality Officer found that the Complainant had not been discriminated against as alleged nor was he harassed contrary to the Acts. The Equality Officer did find that the Complainant was victimised by the Respondent. She awarded the Complainant compensation in the amount of €10,000 and made certain ancillary orders. The Respondent appealed to this Court. There was no cross-appeal by the Complainant.The appeal
By letter dated 18th January 2011 the Solicitors for the Respondent applied to the Court to consider two preliminary questions of law arising in the appeal, namely: -
- “Whether the actions as alleged by the Complainant, if proven, are capable of coming within Section 13 of the Employment Equality Act; and
Whether, as a result of Section 15(2) of the Employment Equality Act, the ASTI is vicariously liable for the actions of its local non-employee officials for the purposes of the Employment Equality Act.”
The Court reviewed the extensive submissions filed in the case and concluded that the whole case could turn on the discrete questions of law identified by the Solicitors for the Respondent. It further appeared to the Court that significant savings in time and expense could be achieved by dealing with these discrete questions of law by way of a preliminary determination. Accordingly the Court directed that a prearranged hearing of the case on 3rd February 2011 be devoted to receiving submissions on the legal questions identified and on the desirability of issuing a preliminary determination on those issues.
At the hearing of 3rd February the parties agreed that the Court should deal with the questions of law arising in the case by way of a preliminary determination and the parties made their submissions on those questions. A number of issues were identified by the Court on which the parties were invited to make further legal submissions. The Respondent filed its supplemental submission on 8th April 2011. The Complainant filed his replying supplemental submission on 9th August 2011.Conclusions of the Court on the preliminary issues of law
In considering the questions of law which fall to be decided in this case the Court has assumed (without so holding) that the factual matrix identified by the Equality Officer is correct in so far as it relates to these questions.
Liability of the Respondent for Victimisation
The Respondent is not the Complainant’s employer. It is, however, a regulatory body within the meaning of s.13 (a) of the Act. The Complainant contends that he was victimised by the Respondent in his capacity as a member of the Union. The Respondent contends that having regard to the provisions of s. 74(2) of the Act the claim of victimisation against it is not sustainable as it is not the Complainant’s employer.
Section 74(2) of the Act defines victimisation as follows: -- (2) For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to—
(a) a complaint of discrimination made by the employee to the employer,
(b) any proceedings by a complainant,
(c) an employee having represented or otherwise supported a complainant,
(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act ,
(e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,
(f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful or any such repealed enactment, or
(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.
An employee is defined by s.2 of the Act as follows: -- “employee” , subject to subsection (3) , means a person who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment and, where the context admits, includes a member or former member of a regulatory body, but, so far as regards access to employment, does not include a person employed in another person's home for the provision of personal services for persons residing in that home where the services affect the private or family life of those persons”
The term “employer” is defined as: -- “employer” , subject to subsection (3) , means, in relation to an employee, the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment;
The combined effect of these provisions is that victimisation occurs where anemployeeis subjected to dismissal or other adverse treatment by his or heremployer.A member of a regulatory body is encompassed by the statutory definition of employee. However, subject to s.2(3) ( which is not relevant for present purposes) the definition of an employer is confined to a person for whom an employee works (or has worked) on a contract of employment. Applying these provisions, literally construed, what emerges is as follows: -
(1) Victimisation can only arise where an employee is subjected to dismissal or other adverse treatment by his or her employer(2) The Complainant is claiming to have been victimised in his capacity as a member of a regulatory body and in that capacity he is to be regarded as an employee for the purposes of s.74(2) of the Act.(3) The Complainant has not entered into or worked for the Respondent under a contract of employment with the Respondent. Consequently the Respondent cannot be regarded as the Complainant’s employer for the purpose of s.74(2) of the Act.On this simple analysis even if the Complainant was subjected to adverse treatment by the Respondent that treatment could not come within the ambit of s.74(2) since it was not inflicted by his employer. On this literal construction of the relevant statutory provisions the Complainant could have no cause of actions against the Respondent, even if his case were to be taken at its height.
There are, however, some difficulties with this analysis. It is clear from s.13 of the Act that a regulatory body may not discriminate against a person in relation to the matters referred to in that section. It is also clear that a member of a regulatory body can bring proceedings under the Act against the regulatory body. It would seem strange if a regulatory body, which was impleaded under the Act, could then take retaliatory action against its accuser with impunity. Moreover, the inclusion of a member of a regulatory body within the definition of an“employee”and the failure to include a regulatory body in the definition of an“employer”is suggestive of an error in drafting. However, while the provision literally construed may appear anomalous it could not be said that the language of the subsection is either obscure or ambiguous.
In her analysis on this point, the Equality Officer pointed out that the Employment Equality Act 1998, before its amendment by the Equality Act 2004, did prohibit victimisation by a regulatory body. The Equality Officer reasoned that the Oireachtas could not have intended to reduce the degree of protection against victimisation provided by the statute. On that basis the Equality Officer concluded that s.74(2), literally construed, produced an absurd result. In reliance on s. 5 of the Interpretation Act 2005 the Equality officer construed the subsection as including a regulatory body within its scope. In this appeal the Respondent contends that the Equality Officer erred in so doing. The Complainant contends that the Equality Officer was correct in her construction of the statutory provisions.The Law
There is settled authority for the proposition that a Court cannot correct a mistake in legislation by interpretation. In theState (Murphy) v Johnson[1983] IR 235 the Supreme Court considered a case in which a defendant had been charged with driving with excess alcohol under the Road Traffic (Amendment) Act 1978. Section 23 of the 1978 Act provided that a certificate issues by the Medical Bureau of Road Safety was to be regarded as evidence for the purposes of Part III of the Road Traffic Act 1968. In fact it was obvious that the reference should have been to Part V of the 1968 Act, which dealt with the issuance of certificates by the Bureau whereas Part III dealt with driving licences.
The District Judge took the view that the mistake was obvious and that he was entitled to read Part III as meaning Part V. The Supreme Court disagreed.
In his Judgment O’Higgins CJ said the following at p.239: -- “On the hearing of this appeal counsel on behalf of the respondent has urged this Court to hold that, having regard to the obvious nature of the error which appears in s. 23, subs (1) and (2) of the Act of 1978, it is competent for a court or judge to read the reference to Part III of the Act of 1968 as a reference to Part V of that Act. I do not accept that submission. Whatever the reason for the apparent error may be, the reference in s. 23 subs. (1) and (2) of the Act of 1978 is to ‘Part III of the Act of 1968’. That reference is clear and unambiguous. To read it as being something other than it is would be, in effect, to amend the subsections. That is not within the competence of the courts and cannot be done.”
At p. 240, Griffin J. said that he agreed with the judgment of the Chief Justice, and enlarged on this by stating:-- “It is for the Oireachtas alone to make laws; the function of the courts is to interpret and construe them. Under the common law, broad rules of construction of statute were laid down. These still apply, subject to the reservation that we now operate under a written constitution. Under these rules, the courts should not proceed on assumption that the legislature has made a mistake, as there is “a strong presumption” that the legislature does not make mistakes. However, mistakes do occasionally occur in printing or in drafting and, if it is possible, the words of a statute must be construed so as to give a sensible meaning to them ut res magis valeat quam pereat. In the last century it was held to be possible, in certain circumstances, to treat obvious misprints as if they had been rectified.”
A similar problem was considered by the Supreme Court inThe State (Rollinson) v DJ Kelly[1984] ILRM 625. Here an issue arose concerning the interpretation of certain provision of the Finance Act 1926 and the Betting Duties (Certified Returns) Regulations 1933. Section 25 of the Act required a bookmaker to make weekly returns of betting tax collected. The Regulations provided that the returns were to be in a particular form. However, the regulations erroneously referred to s.27 of the 1926 Act instead of s.26. The Supreme Court held (by a majority) that in consequence of this obvious error the Regulations were inoperable.
The question now arises as to whether these authorities have survived the enactment of the Interpretation Act 2005 and in particular s.5 thereof. That section provided: -- 5.—(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” insection 2(1) relates, the Oireachtas, or
(ii) in the case of an Act to which paragraph (b) of that definition relates, the parliament concerned,
- (i) in the case of an Act to which paragraph (a) of the definition of “Act” insection 2(1) relates, the Oireachtas, or
The Residential Tenancies Act 2004 gave the Private Residential Tenancies Board exclusive jurisdiction to adjudicate in disputes between landlords and tenants in respect to the terms of a tenancy. All tenancies other than those expressly excluded come within the ambit of the Act. While some types of tenancy are excluded by s.3 of the Act, owner occupiers holding under a long lease were not expressly excluded.
The defendant claimed that the District Court lacked jurisdiction to deal with the case and that it should be referred to the PRTB. The PRTB claimed that the general scheme of the legislation which it operates is directed at periodic tenancies and could not embrace the type of long lease held by the defendant. It was submitted that the drafters of the legislations had erroneously omitted to exclude leases of the type in issue. Reliance was placed on s. 5 of the Interpretation Act 2005 in support of the proposition that the Court could read s. 3 of the Act as including such an exclusion.
The District Court accepted the argument advanced on that point and made an award against the defendant. On appeal the Circuit Court reversed that decision. In giving her reasons Linnane J said: -- “While the argument put forward on behalf of both the Plaintiff and the PRTB is to the effect that it was never the intention of the legislature that long leases of owner occupied apartments be included in the Act, in my view if that was the intention then the legislature should have expressly excluded such dwellings as it did with other dwellings specified in s.3(2). If the draftsperson omitted such dwellings as this in error then it is not the function of the Court to add to any express statutory provision to rectify such a mistake”
The PRTB brought Judicial Review proceedings seeking to have the decision of Linnane J. quashed.
In holding that the Circuit Judge had not erred in ruling as she did, Budd J. considered the provisions of s.5 of the Interpretation Act 2005 in light of the decision of the Supreme Court inState (Murphy) v Johnsonand observed: -- The second matter to be remembered is that the Interpretation Act 2005 must be construed in a manner consistent with the Constitution and in particular, Article 15.2 thereof in respect of the legislative preserve of the Oireachtas. In this regard, the Interpretation Act should not be used as a device to enable the courts to legislate.
Budd J concluded his Judgment saying: -- I have concluded that the learned Circuit Court Judge was correct in that if the provisions of s. 3(1) were not to apply to long leases of owner occupied apartments then the legislature should have expressly excluded such dwellings with clear descriptions and definitions of such long leases as were being excluded from the ambit of s. 3(1), just as was done to so exclude other dwellings as specified in s. 3(2)(a) – (i) inclusive. I agree that if the person drafting the Act omitted such a dwelling as this in error then it is not the function of the court to concoct an appropriate exclusionary provision at (j) or s. 3(3) to rectify such a mistake. The section is clear and unambiguous and the function of the court in interpreting a statute is confined to ascertaining the true meaning of each statutory provision and the courts have no license to trespass on the policy making and legislative role of the Oireachtas in devising amending legislation.
It is clear on these authorities that a distinction should be drawn between giving a statutory provision a purposive interpretation, which was plainly intended and is clearly discernable from the entirety of the statute, as is provided for by s.5(1)(b) of the Interpretation Act 2005, and importing or redacting a provision so as to cure a drafting error on the part of the legislature. The former approach is doing no more than giving effect to the plain intention of the Oireachtas. The latter approach involves an impermissible trespass upon the legislative domain
In this case the Court can find nothing in the Acts when read as a whole which plainly indicates that the legislature intended to include a regulatory body within the definition of an employer for the purpose of s.74(2). Nor is there any definitive or plain indication that the lawmakers intended the subsection to be read as including a reference to a regulatory body. There are, however, indicators of a contrary intention.
It should be noted that the subsection defines‘victimisation’as occurring where there is“dismissal or other adverse treatment”.Dismissal, as that term is defined by the Act, could only occur in the context of an employer / employee relationship. While the subsection goes on to refer to“other adverse treatment”by application of theejusdem generisrule of statutory construction these general words should be given a restricted meaning in the same genus as the particular and specific word‘dismissal’. The rule was conveniently summarised by Carroll J. inCronin v Lunham Brothers Ltd[1986] ILRM 415, at 417, as: -- The ejusdem generis rule as applied to the interpretation of statutes means that where a general word follows particular specific words of the same nature as itself, it takes its meaning from them and is presumed to be restricted to the same genus as those words. The rule applies to general words following words which are less general.”
Applying this rule to the words used in s.74(2) the reference to‘other adverse treatment’must be construed as referring to adverse treatment of a type which an employer could impose on an employee. This would not include the type of issues that may arise in a dispute between a regulatory body and a member of that body, such as a dispute concerning the provision of a union service or a benevolent benefit.
Further, as Counsel for the Respondent pointed out in her supplemental submission to the Court, for the purposes of a number of its provisions the Act expressly extends the definition of an employer to include a regulatory body. Such an extended meaning of the expression is provided for at s.32(2) and s.16(4). If the draftsperson of the Act included a regulatory body in the definition of an employer in some sections, the omission of a similarly extended meaning from s.74(2) must be presumed to have been deliberate.
Finally, the Court considered if it is necessary to give the subsection an extended meaning in order to construe the statute so as to accord with European law. The Acts, in so far as they relate to discrimination on age grounds, implement in domestic law the provisions of Directive 2000/78/EC Establishing a General Framework for Equal Treatment in Employment and Education. Article 11 of that Directive provides as follows: -- “Member States shall introduce into their national legal system such measures as are necessary to protect employees against dismissal or other adverse treatment by the employer as a reaction to a complaint within the undertaking or to any legal proceedings aimed at enforcing compliance with the principle of equal treatment.”
The wording of s.74(2) of the Act comports fully with this provision of the Directive.
For all of the above reasons the Court is satisfied that it must take s.74(2) of the Act as it finds it. On a plain and ordinary meaning of this section it relates only to dismissal or other adverse treatment of an employee by his or her employer. The Complainant can have no cause of action against the Respondent in reliance on this section.Liability of ASTI for the actions of its local non-employee officials
The issue here is whether the Respondent can be vicariously liable for the conduct of its shop stewards and local representatives. The Equality Officer found that the Respondent was vicariously liable for acts of victimisation committed,inter alia, by its local officials and shop stewards. Having found that the Respondent cannot be impleaded for victimisation under s.74(2) of the Act it is not strictly necessary to answer the questions posited in this aspect of the case since the Respondent cannot be held liable for victimisation whether direct or vicarious.
However this matter was fully addressed by the parties and it is clearly of importance to both parties. Moreover, the Complainant did make a complaints of discrimination on the age ground based on the claimed vicarious liability of the Respondent for discriminatory conduct and harassment on the part of its local officials and shop stewards. While these complaints were found to be without foundation by the Equality Officer, and no cross appeal has been brought by the Complainant, in the context of a de novo hearing of the case these complaints could again be pursued
In these circumstances, and for the sake of completeness, the Court considers it desirable to give its determination on this aspect of the case.
Section 15 of the Act provides as follows in relation to vicarious liability: -- (1) Anything done by a person in the course of his or her employment shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that person's employer, whether or not it was done with the employer's knowledge or approval.
(2) Anything done by a person as agent for another person, with the authority (whether express or implied and whether precedent or subsequent) of that other person shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that person.
(3) [not relevant]
The persons alleged to have perpetrated acts of discrimination against the Complainant were not employees of the Respondent. Hence, subsection (1) of s.15 can have no application in this case. It is, however, contended by the Complainant that those persons were local representatives of the Respondent and were acting as agents of the Respondent within the meaning of s 15(2) of the Act.
Under the ordinary law of agency an agent binds a principal if the agent is authorised by the principal to act on his or her behalf. The extent of the principal’s liability for the actions of his or her agent is limited by the scope of the authority conferred on the agent. An agency may, however, arise from what is described as a customary authority derived from the nature of the role being performed by the putative agent. It is therefore first necessary to consider if the role of a local union representative, or shop steward, normally carries an inherent authority to bind the union as agent.
It is well settled that this Court, as an expert tribunal, is entitled to rely on the knowledge and experience of its members. This was recently confirmed by the High Court inBunclody Electrical Contracting Ltd & Ors v Labour Court & OrsUnreported, High Court, Hedigan J 30th June 2010. Based on the knowledge and experience of its members the Court is aware that a shop-steward or local representative of a trade union would exercise a limited representative role in purely local or work place issues. In the absence of a specific provision to the contrary in the union’s rules, a local representative would not have authority to act for or bind the union without express authority from the committee of management or other controlling authority of the Union.
The extent of a Union’s liability for the torts of its officials is comprehensively described by Kerr and Whyte in the leading work on the law relating to trade unions – Irish Trade Union Law (1985). A Page 139 of their work the authors say: -- “A Union may be also be liable for the acts of its officials by virtue of the doctrine of agency and vicarious liability, except where the Union is given immunity from suit.
By virtue of the doctrine of agency, a Union is liable in contract for the authorised acts of its officials acting on its behalf. The scope of the officials authority would be determined by reference to his contract of employment and the Union rule book. Even where an official exceeds his authority, the Union may still be liable if it subsequently ratifies his unauthorised act.”
It is noted that the Respondent’s rules provide that its officer are the President, Vice President, President Elect, Immediate Past President, General Secretary and Honorary Treasurer. There is nothing before the Court on which it could be held that a shop steward or local representative is an authorised agent of the Respondent.
Section 15(2) provides that authority to act as agent for a principal can be implied. This is in line with the general law of agency which recognises that an authority to act for another can be implied or ostensible. InHelen Kett v Richard Shannon and Ors[1987] ILRM 364, Henchy J in the Supreme Court (Griffin and Hederman JJ concurring) explained the law on ostensible agency as follows: -- The law on ostensible or apparent authority is fully and illuminatingly dealt with by Diplock LJ in Freeman & Lockyer v Buckhurst Park Properties (Mangal) Ltd [1964] 2 QB 480 . Having referred to that judgment, Robert Goff LJ in Armagas Ltd v Mundogas SA [1985] 3 All ER 1795 says:
- It appears, from that judgment, that ostensible authority is created by a representation by the principal to the third party that the agent has the relevant authority, and that the representation, when acted on by the third party, operates as an estoppel, precluding the principal from asserting that he is not bound. The representation which creates ostensible authority may take a variety of forms, but the most common is a representation by conduct, by permitting the agent to act in some way in the conduct of the principal's business with other persons, and thereby representing that the agent has the authority which an agent so acting in the conduct of his principal's business usually has (at p. 804).
Again, there is no suggestion in this case that the Respondent ever made representations to the Complainant, by conduct or otherwise, from which he could have believed that the local representatives and shop stewards were authorised to act on behalf of the Respondent. Accordingly the Court cannot accept that any implied or ostensible agency came into being as between the Respondent and the local representatives and shop stewards.Conclusion
The Court has found that the Respondent cannot be liable for acts of victimisation under s.74(2) of the Act. The Court is further satisfied that the local representative and shop stewards of the Respondent are not its agents within the meaning of s.15 of the Act. Consequently the Respondent cannot be liable for any discriminatory conduct by such person towards the Complainant.
In these circumstances the Complainant has no cause of action against the Respondent and his claims against the Respondent cannot succeed. Accordingly the Court must allow the Respondent’s appeal and set aside the decision of the Equality Tribunal. - “Whether the actions as alleged by the Complainant, if proven, are capable of coming within Section 13 of the Employment Equality Act; and
Signed on behalf of the Labour Court
Kevin Duffy
25th August 2011______________________
AHChairman
NOTE
Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.