EET123

FULL RECOMMENDATION

REE/11/2

DETERMINATIONNO.EET123

INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 77(12), EMPLOYMENT EQUALITY ACTS, 1998 TO 2011

PARTIES :

BEAUMONT HOSPITAL
(REPRESENTED BY BYRNE WALLACE SOLICITORS)

- AND -

MARIAN BAYLISS
(REPRESENTED BY MC GRATH O'DONNELL & ASSOCIATES SOLICITORS)

DIVISION :

Chairman: Ms Jenkinson
Employer Member: Ms Cryan
Worker Member: Ms Tanham

SUBJECT:
1. Appeal Under Section 77(12) Of The Employment Equality Acts, 1998 To 2008.

BACKGROUND:

2. The Complainant referred her case to the Labour Court on the 5th July, 2011 in accordance with Section 77(12) of the Employment Equality Acts, 1998 - 2004. A Labour Court hearing took place on the 2nd November, 2012. The following is the Court's Determination:

DETERMINATION:

The matter comes before the Court pursuant to an appeal by the Respondent against a Direction of the Director of the Equality Tribunal that was made pursuant to Section 77(5) of the Employment Equality Acts 1998 to 2008 (the Acts).

Background: -

The Complainant, Ms. Marian Bayliss referred a complaint to the Equality Tribunal on 17^thFebruary 2011 alleging that she was discriminated against on the gender ground by the Respondent, Beaumont Hospital on 17^thAugust 2010. As the complaint was submitted to the Equality Tribunal more than 6 months but less than 12 months after the alleged discriminatory acts occurred the Complainant by letter of 4^thMarch 2011, sought an extension of the time limit pursuant to Section 77(5) of the Act.

On behalf of the Director of the Equality Tribunal a Direction was issued in the following terms:

'It is my opinion that the complainant has established reasonable cause for the delay in referring her complaint. I, therefore, direct an extension of time to twelve months for the purpose of referring a complaint be given in this case. '

This Direction was appealed by Beaumont Hospital to the Labour Court pursuant to Section 77(12) of the Act.

In line with the normal practice of the Court, parties are referred to as they were at first instance. Hence Beaumont Hospital will be referred to as “the Respondent” and Ms. Marian Bayliss will be referred to as “the Complainant”.

Preliminary Issue

This appeal was referred to the Court on 5^thJuly 2011, purportedly pursuant to Section 77(12) of the Acts. Section77 (12) of the Act, before its amendment by Section 22 of the Civil Law (Miscellaneous Provisions) Act 2011, did not make provision for an appeal against a decision of the Equality Tribunal under Section 77(5). Section 22 of the Act of 2011 amended Section77 of the 1998 Act by substituting the following paragraph for paragraph (a) of subsection 12 of that Section: -

“(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 (5), the complainant or respondent may appeal against the decision to the Labour Court on notice to the Director specifying the grounds of the appeal.”.

The amendment took effect from the date of enactment of that Act (3^rdAugust 2011).

In advance of the hearing the Court wrote to both parties drawing their attention to the apparent difficulty in processing the appeal and invited submissions on the legal issues arising on this point. The Court further indicated that it would hold a preliminary hearing on the question of its jurisdiction to determine the within appeal.

At the outset of the appeal hearing Ms. Deirdre Gavin, B.L., instructed by McGrath O’Donnell & Associates, Solicitors for the Complainant submitted that the Court lacked jurisdiction to determine the appeal as there was no statutory provision for such appeal lay at the time at which it was submitted.

Ms. Gavin submitted that a statute cannot have retrospective effect unless same is specifically provided for. Counsel relied on the decision of Henchy J inKenny v An Board Pleanála[2001] 1 IR 565 at p 579as authorityfor that proposition. In that case,in the context of a planning application, Henchy J said the following:-

“When under a statutory regime a process has been commenced, those involved in or affected thereby, have a right to see that process through, to a conclusion, under the law as it was at the date of its commencement.”

Ms. Gavin said these views were also adopted by Blayney J. inDublin County Council v. Grealy[1990] 1 I.R.77where he added :-

"One starts accordingly with the presumption that s. 25 is to be construed as being prospective in its application. And for this presumption to be rebutted, the Act must express a clear and unambiguous intention to the contrary, or there must be some circumstances rendering it inevitable that the court should conclude that the Act is retrospective, or the change effected by the statute must be purely procedural."

Counsel further referredJM Kelly: The Irish ConstitutionGW Hogan & GF Whyte, Fourth ed, Butterworths at 4.2.109, wherein the judicial approach to this question was summarised as follows:

“it is presumed that legislation which affects substantive law or vested rights will not operate retrospectively unless there is a clear and unambiguous indication to the contrary.”

Ms. Gavin thus submitted that in the absence of any clear intention to the contrary, Section 22 of the 2011 Act cannot be read as having retrospective effect. As such, no appeal arises from the Decision of the Director of the Equality Tribunal which predates the aforementioned amendment and consequently, the Labour Court does not have the requisite jurisdiction to hear this appeal.

Ms. Gavin stated that in all of the circumstances of the case the Complainant requests the Court to decline jurisdiction to hear and determine the within appeal and to advise the Director of this decision so that the restraint on the further processing of her complaint can be lifted.

Summary of the Respondent’s Position

Ms Michelle N� Longáin, Byrne Wallace Solicitors on behalf of the Respondent submitted to the Court thatSection 22 of the 2011 Act applies in this case because it does not effect any change in the substantive law on discrimination. Rather, it was submitted, it merely provides a procedural rule which is applicable to proceedings in which discrimination is alleged. Therefore, the Respondent submitted that the law as amended provides for the appeal brought against the Decision of the Director of the Equality Tribunal to extend the time given to the Complainant to bring her claim and that the legislation applies in its current amended form.

In advancing her argument Ms N� Longáin relied upon the decision of the High Court inDublin City Council v Grealy[1990] I IR 77wherein Blayney J considered the circumstances in which a statute can operate retrospectively stating:-

"...the Act must express a clear and unambiguous intention [to operate retrospectively], or there must be some circumstance rendering it inevitable that the court should conclude that the Act is retrospective, or the change affected by the statute must be purely procedural."

MsN� Longáinfurther relied upon the decision of this Court inDjemma Tsourova v ICON Clinical Research Ltd16 ElR 250 wherein the following passage appears: -

"As the court understands it the common law presumption that legislation does not operate retrospectively applies where an Act changes the substantive as opposed to the procedural law."

Furthermore,Ms N� Longáin citedToss Limited v. District Court Justice of the Metropolitan District (Unreported , High Court Blayney J. 24^thMay 1987). The question which arose for consideration in that case concerned whether new procedures for issuing a summons in the District Court, introduced by section 1 of the Court (No. 3) Act 1986, could be availed of in respect of a complaint made to the District Court Clerk prior to the introduction of these procedures. Blayney J. concluded as follows;-

“In my opinion there are no special circumstances appearing on the face of the Act of 1986 so as to remove that Act from the general rule applicable to statutes relating to procedure, and that accordingly that rule applies with the result that the Act of 1986 is retrospective in its effect and accordingly the summons issued on the 25^thMarch 1987, pursuant to s.1 of the act is perfectly valid summons.”

Ms N� Longáin also referred to the fact that theLabour Court reiterated this point inCounty Louth VEC v Don JohnsonEDA0712, as follows:

" ...the Section prescribes a procedural or evidential rule, which is applicable in cases, which come on for hearing after its commencement."

The Decision of the Courton the Preliminary Issue Raised

InDjemma Tsourova v ICON Clinical Research Ltdthe question which fell for consideration was whether or not Section 85A of the Acts, which deals with the allocation of the burden of proof in discrimination cases can apply in a case grounded on occurrences which predated the commencement of that section. Having considered the authorities referred to therein the Court held that since the section deals with an evidential rule it could properly be classified as procedural law applicable to the conduct of proceedings taking place after its enactment. InDPP v McDermott, Unreported, High Court, Peart J, 12^thMay 2005, a similar decision was reached in relation to the acceptance in evidence of a Birth Certificate as evidence of a person’s age. The question arose in the context of a case in which the defendant was prosecuted for selling alcohol to a minor. The Social Welfare (Miscellaneous Provisions) Act, 2002 had amended the Registration of Births and Deaths (Ireland) Act, 1863 so as to provide that a Court could receive a Birth Certificate in evidence. However, the amendment took effect after the date on which the alleged offence occurred.

In reliance on the earlier decision inToss Limited v. District Court Justice of the Metropolitan DistrictPeart J held that the change in the law related to the reception of evidence and was therefore procedural in nature. Consequently, it was held that the amendment applied in the case under consideration.

In the instant case there is no dispute between the parties as to the applicable legal principles. Both parties accept that statutory amendments which change the substantive law normally apply prospectively whereas changes in procedural law are presumed to apply retrospectively. Hence the net question for consideration in this case is whether Section 22 of the Act of 2011 introduced a change in substantive or procedural law.

Procedural law is normally understood as referring to that part of the law which deals with practice and procedure in the Courts as opposed to the actual law which deals with the rights and obligations of citizens. Questions concerning the jurisdiction of statutory bodies, such as this Court, are not matter of procedure since such bodies can only act in so far as they are authorised to do so by statute.

At the time this matter was referred to the Court it had no statutory authority to determine an appeal against a decision of the Director of the Equality Tribunal given under Section 77(5) of the Act. Consequently, at the time the decision now under challenge was given, it was a final decision and the law cannot operate to render that final decision nugatory, the Complainant had a vested right to have her substantive claim heard and decided by the Equality Tribunal. Thus, the Complainant accrued a substantive right within the law as it then stood which could not be offset by the subsequent change introduced by the Act of 2011.

The Court is of the view that the right to appeal is a substantive right and not merely procedural. It is not a provision which just affects the conduct of a hearing nor is it is merely declaratoryor relating only to matters of procedure or evidence.

For these reasons it is the Determination of the Court that it does not have jurisdiction to hear the Respondent’s appeal against a Decision of the Director to issue a directive to extend time pursuant to Section 77 (5) of the Act.

Signed on behalf of the Labour Court

Caroline Jenkinson
28th November 2012______________________
SCDeputy Chairman

NOTE

Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.