HSD134

In this Determination the parties are referred to as they were at first instance. Hence Mr Dunphy is referred to as the Claimant and Wicklow County Council is referred to as the Respondent.

The facts
The material facts giving rise to this claim are as follows: -

The Complainant is employed by the Respondent as an Executive Engineer. He was also a safety representative. In that latter capacity he made various representations to the Respondent in matters of health and safety. In or about November 2011 he made complaints of bullying against a colleague. An investigation was initiated by the Respondent into these complaints. He was then acting in a higher grade and was in receipt of an acting-up allowance. He was subsequently reverted to his substantive grade and lost the benefit of the acting-up allowance. He claims that the decision to revert him to his substantive grade was in consequence of having made the complaint of bullying. This is denied by the Respondent.

The dispute concerning the loss of this allowance was dealt with on the Complainant’s behalf by his trade union. The matter was subsequently referred to a Rights Commissioner under the Industrial Relations Act 1969. In the course of the hearing before the Rights Commissioner the matter was settled on terms agreed between he parties. The terms of the settlement were reduced to writing and signed by the parties. Under the terms of the settlement the Claimant accepted payment of €4,000 in full and final settlement of his claim. The settlement was expressed to be ‘without prejudice on liability’ It was also expressed to relate to the claim under the Industrial Relations Act 1969.

The Appeal

The Claimant now claims a declaration from the Court that the decision to revert him to his substantive post and the consequential withdrawal of his acting-up allowance was an act of penalisation under the Act of 2005. The Respondent contends that the dispute giving rise to the within claim was settled between the parties and that the Claimant is estopped from proceeding with this claim. The Claimant contends that only his claim under the Industrial Relations Acts was settled and there is no bar to him seeking a declaration that he was penalised under the Act.

Conclusion of the Court

The Court notes that the terms of the settlement concluded between the parties was expressed to relate to the Industrial Relations Acts only and involved only a withdrawal of his claim under those Acts. Nevertheless, in the Court’s view, a question arises as to whether the claim before the Court has been rendered moot by the terms of the settlement.

The law in relation to mootness was considered by the Supreme Court inGoold v Judge Collins and Others[2004] IESC 38. This was a case involving judicial review proceedings taken by the Applicant arising from the granting of protection orders under the Domestic Violence Act 1996. When the matter came to trial agreement had been reached between the parties to the original proceedings under the Act of 1996. On foot of this agreement the protection orders had been discharged by consent. When the application for judicial review came to trial the Respondent contended that the issue was moot.

In considering the circumstances in which an appeal can be moot Hardiman J. said this (at page 14-15: -

• “A proceeding may be said to be moot where there is no longer any legal dispute between the parties. The notion of mootness has some similarities to that of absence of locus standi but differs from it in that standing is judged at the start of the proceedings whereas mootness is judged after the commencement of proceedings. Parties may have a real dispute at the time proceedings commence, but time and events may render the issues in proceedings, or some of them, moot. If that occurs, the eventual decision would be of no practical significance to the parties”

• There can be no doubt that this Court has decided on a number of occasions that it must decline, either in constitutional issues or in other issues of law, to decide any question which is in the form of a moot and the decision of which is not necessary for the determination of the rights of the parties before it

• "The first rationale for the policy with respect to mootness is that a court's competence to resolve legal disputes is rooted in the adversary system. A full adversarial context, in which both parties have a full stake in the outcome, is fundamental to our legal system. The second is based on the concern for judicial economy which requires that a court examine the circumstances of a case to determine if it is worthwhile to allocate scarce judicial resources to resolve the moot issue. The third underlying rationale of the mootness doctrine is the need for the Courts to be sensitive to the effectiveness or efficiency of judicial intervention and demonstrate a measure of awareness of the judiciary's role in our political framework. The Court, in exercising its discretion in an appeal which is moot, should consider the extent to which each of these three basic factors is present. The process is not mechanical. The principles may not all support the same conclusion and the presence of one or two of the factors may be overborne by the absence of the third, and vice versa."

In these circumstances the Court is satisfied that the case is moot.

Determination

The appeal is disallowed and the decision of the Rights Commissioner is affirmed.

Signed on behalf of the Labour Court



Kevin Duffy
CR______________________
11th March, 2013Chairman



NOTE

Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.