EDA1326

FULL RECOMMENDATION

ADE/13/27

DETERMINATIONNO.EDA1326

INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 83, EMPLOYMENT EQUALITY ACTS, 1998 TO 2011

PARTIES :

JAHAN COMPANY T/A IREMA IRELAND
(REPRESENTED BY PENINSULA BUSINESS SERVICES (IRELAND) LTD)

- AND -

ANNE POWER
(REPRESENTED BY WALLACE REIDY & COMPANY)

DIVISION :

Chairman: Ms Jenkinson
Employer Member: Ms Cryan
Worker Member: Mr Shanahan

SUBJECT:
1. Appeal under Section 83 of the Employment Equality Acts, 1998 to 2011.

BACKGROUND:

2. The Employer appealed the Decision of the Equality Officer to the Labour Court on the 17th June, 2013 and the Complainant appealed the Decision on 3rd July 2013. A Labour Court hearing took place on the 16th October, 2013. The following is the Court's Determination:-

DETERMINATION:

This is ajoint appeal against the Decision of an Equality Officer in a claim by Ms. Anne Power against her employer Jahan Company t/a Irema Irelandwhere she alleged that she was discriminated against on the grounds of gender, marital status and family status when her terms and conditions of employment changed on her return from maternity leave on 4th May 2010

For ease of reference the parties are given the same designation as they had at first instance. Hence Jahan Company trading as Irema Ireland will be referred to as “the Respondent” and Ms. Anne Power will be referred to as “the Complainant”.

The Complainant was employed by the Respondent as a Customer Service Administrator. She commenced employment with the Respondent on 24th May 2006. She was on maternity leave between 28^thAugust 2009 and 4^thMay 2010. She claims that she did not return to the job that she held before the commencement of her maternity leave. She contends that the job to which she returned was more onerous and demanding than her original job; that she was not properly trained for the new role and that she was suspended for having made a complaint.

The Equality Officer found that the Respondent discriminated against the Complainant and awarded the sum of €11,700. Both the Respondent and the Complainant appealed the Decision.

Alleged Claims of Discrimination on Marital Status and/or Family Status Grounds.

The claim referred to the Equality Officer was based on the gender, marital status and family status grounds. No evidence was tendered at first instance relating to the marital status or family status grounds and no findings were made in the Equality Officer’s Decision on these claims. The Complainant confirmed for the Court that these matters were not being pursued.

Preliminary Issue

The Respondent raised a preliminary issue. Ms. Catherine Day, Peninsula Business Services on behalf of the Respondent submitted that the matter before the Court wasres judicataas theComplainant had pursued an identical complaint under the Maternity Protection Act 1994, which had been heard by a Rights Commissioner. The Rights Commissioner had found in the Complainant’s favour, he issued a Decision on 9^thDecember 2011 and awarded her the sum of €15,000 by way of compensation. The Respondent lodged an appeal of that Decision to the Employment Appeals Tribunal.

On the day of the hearing before the Equality Officer on 4^thMarch 2012 the Respondent objected to the case proceeding on the basis that an identical case had been heard before a Rights Commissioner. The Equality Officer held that there was nothing in the Employment Equality Acts 1998 - 2008 to prevent a claim being pursued under both the Employment Equality Acts and the Maternity Protection Acts 1994 - 2004 and accordingly held that it had jurisdiction to hear the claim.

The Court determined that it would deal first with the preliminary question of whether the Decision of the Equality Tribunal on the question of jurisdiction was correct.

Summary of the Respondent’s Position on the Preliminary Issue Raised

Ms Day stated that the Complainant lodged a dispute with the Rights Commissioner Service of the Labour Relations Commission on 2^ndNovember 2010. The complaint form states:

'The terms and conditions of my employment changed when I returned backtowork after maternity leave'.

On 2^ndNovember 2010 the Complainant also lodged a complaint of discriminatory treatment on the grounds of gender, marital status and family status. The complaint form states:

'My terms and conditions of employment changed when I came backtowork following maternity leave on the 4th May 2010'.

Ms Day stated that on examination of the submissions to the Rights Commissioner and Equality Tribunal it is clear that same are virtually identical and are sufficiently similar to render the caseres judicata.

Ms Day said that at the equality hearing on 4^thMarch 2013 a preliminary application was made for the case to be dismissed as it wasres judicata.The Equality Officer held against the application as there was no legislative provision precluding him from hearing the case and he proceeded to hear the matter.

While Ms Day acknowledged that there is no specific legislative provision precluding a complaint being lodged in both forums based on the same facts, however, she submitted it is within the power of the Court to look at the grounds upon which the claims have been brought and the relevant legislation to determine if the case has already been heard in another forum. She submitted that it stands to reason that two separate awards cannot be recovered for what amounts to the same complaint. She said that even though the compensation under the Maternity Protection Acts may be capped at an amount equivalent to 20 weeks’ pay the Complainant was free to elect between the two pieces of legislation and opt for the forum with the higher upper limits if she so wished. She did not do so, and Ms Day submitted that in proceeding with the complaint under the Maternity Protection Acts the Complainant 'elected' to pursue this specific complaint under that legislation.

In support of its contention the Respondent referred the Court to the Decision of the High Court, per Hedigan J. inCunningham v Intel Ireland Limited [2013] IEHC 207.

Summary of the Complainant’s Position on the Preliminary Matter Raised

Mr. Pat McHugh Solicitor, Wallace Reidy & Company, Solicitors on behalf of the Complainant submitted that the Court should reject theRespondent’sres judicata
argument and disallow the appeal. Hesubmitted that this issue was raised by the Respondent and was adequately and correctly dealt with by the Equality Officer where he quite clearly stated that there was no provision under the Employment Equality Acts which stop him fromcarrying out his investigation and issuing his Decision.

In support of his argument Mr McHugh cited the case ofGardnier v Mercer Human Resources Consulting DEC-E2006-007where the Equality Officer expressly rejected the suggestion that a matter which was covered by the Maternity Protection Acts was therefore outside the scope of the Employment Equality Acts,on the basis that there was no provision in the Maternity Legislation preventing an employee from referring a complaint of discriminatory treatment in respect of pregnancy or"maternity related" issues to the Equality Tribunal and that Section 101 of the Employment Equality Acts which set circumstances restricting certain dual avenues of redress, does not restrict a Claimant who may also have a cause of action under the Maternity Protection Legislation.

Furthermore, Mr McHugh submitted thatif the Oireachtas intendedto curtail the employee's right in that respect it could,and would have,specifically legislated for same. He disputed the Respondents'argument that it is within the power of the Court to look at the grounds upon which claims are brought and the relevantlegislation,to determine if the case has already been heard in another forum. He respectfully suggested that the Court cannot make a decision that would contradict the intention to the Oireachtas by extending the scope of the explicit and exhaustive Section 101 of the Employment Equality Acts to include claims under other legislation.

Mr McHugh disputed the Respondent’s argument that bothawards were double recovery for the same breach; he said that the nature ofawards might have been compensatorybut that was where the similarity ends. The grounds for granting differed fundamentally in both cases. He referred to the fact that theEqualityOfficer in assessing the award took into account the awardmade underthe Maternity Protection Acts of €15,000 and proceeded to make an award under the Employment Equality Acts.

Mr. McHugh rejected the suggestion that submissions to the LRC and the Equality Tribunal were similar.

Conclusions of the Court on the Preliminary Issue Raised

This case was taken under the Employment Equality Acts 1998 - 2008. Having examined the claims referred and the submissions made, it is clear that a case grounded on the same facts was referred to a Rights Commissioner under the Maternity Protection Acts 1994 -2004 and to an Equality Officer under the Employment Equality Acts 1998 - 2008.

The Court notes that the Rights Commissioner's case had been heard before the Equality case came on for hearing. While the Court accepts that the Employment Equality Acts do not contain a statutory prohibition on duplication of claims, in common law the doctrine ofres judicatanormally prohibits a party from seeking to litigate the same issue twice. The Court must consider whether the Complainant is estopped by that doctrine from pursuing the within claim.

Cause of action estoppel is defined in“Res Judicata and Double Jeopardy”by Paul A. McDermott (Butterworth 1999, at p57):-

“The term “cause of action” estoppel signifies the estoppel which arises between parties by reason of a judgment given in favour of one and against the other with respect to the cause of action set up in the first proceedings. Its operation prevents a party to an action from asserting or denying as against the other party the existence of a cause of action, the existence or non-existence of which has already determined by a court of competent jurisdiction in previous litigation between the parties. To succeed in such a plea it must be shown that the cause of action in the earlier action is the same as that raised in the second action; D v C [1984] ILRM 173 at 192 (HC).”

A concise definition of cause of action estoppel (and issue estoppel) as offered by Blayney J. inGilroy v McLoughlin[1989] ILRM 133, at 136, as follows: -

“In cause of issue estoppel the question is whether a plaintiff is estopped from bringing a particular action by reason of having brought a similar action previously against the same party, while issue estoppel is concerned with whether a particular issue has previously been determined between the same parties by a Court of competent jurisdiction”.

The underlying rationale for the doctrine was explained by Keane J (as he then was) inDublin Corporation v Building and Allied Trades Union[1996] 2 I.L.R.M 547 as follows:

“The justification of the doctrine is normally found in the maxim interest
rei publicae ut sit finis litium and it is important to bear in mind that the public interest referred to reflects, in part at least, the interest of all citizens who resort to litigation in obtaining a final and conclusive determination of their disputes. However severe the stresses of litigation may be for the parties involved — the anxiety, the delays, the costs, the public and painful nature of the process — there is at least the comfort that at some stage finality is reached. Save in those exceptional cases where his opponent can prove that the judgment was procured by fraud, the successful litigant can sleep easily in the knowledge that he need never return to court again.”

Hedigan J. inIntelheld

“…all matters and issues arising from the same set of facts or circumstances must be litigated in the one set of proceedings save for special circumstances”.

The only provision of the Employment Equality Act which could avail the Complainant is Section 6(2)(A). Section 6(2)(A) of the Act relates to a situation in which a woman employee is treated less favourably on grounds related to her pregnancy or maternity“contrary to any statutory requirement”.The language of this Section imports the provisions of other statutes which impose obligations on employers in relation to pregnant workers. Of immediate relevance in that context are the obligations imposed on employers by Sections 26 and 27 of the Maternity Protection Act 1994.

Section 26 of the Act provides: -

(1)Subject to this Part, on the expiry of a period during which an employee was absent from work while on protective leave, the employee shall be entitled to return to work—
- (a)with the employer with whom she was working immediately before the start of that period or, where during the employee's absence from work there was a change of ownership of the undertaking in which she was employed immediately before her absence, with the owner (in this Act referred to as “the successor”) of the undertaking at the expiry of the period of absence,
  
  (b)in the job which the employee held immediately before the start of that period, and
  
  (c)under the contract of employment under which the employee was employed immediately before the start of that period, or, where a change of ownership such as is referred to in paragraph (a) has occurred, under a contract of employment with the successor which is identical to the contract under which the employee was employed immediately before the start of that period, and (in either case) under terms or conditions not less favourable than those that would have been applicable to the employee if she had not been so absent from work.
(2)For the purposes of subsection (1) (b), where the job held by an employee immediately before the start of the period of her absence on protective leave was not the employee's normal or usual job, the employee shall be entitled to return to work, either in her normal or usual job or in that job as soon as is practicable without contravention by the employee or the employer of any provision of a statute or instrument made under statute.

(3) In this section “job”, in relation to an employee, means the nature of the work which she is employed to do in accordance with her contract of employment and the capacity and place in which she is so employed.

Section 27 of the Act provides: -

(1) Where an employee is entitled to return to work in accordance withsection 26but it is not reasonably practicable for the employer or the successor to permit the employee to return to work in accordance with that section, the employee shall, subject to this Part, be entitled to be offered by the employer, the successor or an associated employer suitable alternative work under a new contract of employment.

The only question arising in this case is whether the Complainant was returned to the job that she held before the commencement of her maternity leave, that issue has already been the subject of proceedings before the Right Commissioner where the Complainant was successful in her case and received redress in the form of compensation. It seems to the Court that any cause of action which she may have had was merged in the decision of the Rights Commissioner under the Maternity Protection Act 1994. This, as the Court understands it, also arises from the application of the legal doctrine of merger ortransit in rem judicatem. It follows that the redress ordered in the earlier case was intended to cover the totality of her complaint and she cannot use the present proceedings to obtain an additional or better remedy for what is undoubtedly the same wrong for which she already has been compensated.

In so far as additional points are being taken in the present proceedings (and the Court does not believe that to be the case) the rule inHenderson v Henderson [1843] 3 Hare 100provides that if a point of law or fact should have been raised in the first case and was not, it cannot be raised in the second case. The rule applies to prevent abuse of process by fragmenting litigation and re-litigating the same issue by relying on different facts or points of law. It was described by Dowes B in Russell v Waterford and Limerick Railway Company [1885] 16 IR 314 as follows:-

“Where cause of action is the same and the plaintiff has had an opportunity in the former suite of recovering that which he seeks to recover in the second, the former recovery is a bar to the latter action”

The Court is clear that the issues now in contention in this case have been ventilated in a case before the Rights Commissioner and a Decision was given by the Rights Commissioner, the same issues cannot be pursued again in other proceedings between the same parties. Finally, common law estoppel can also apply in proceedings before quasi-judicial tribunals, such as this Court. The Court of Appeal for England and Wales so held inDivine-Bortey v London Borough of Brent[1998] IRLR 525.

Determination

For all of the reasons set out herein the Court is satisfied that any cause of action that the Complainant may have in the present proceedings were merged in and extinguished by the Decision in her favour under the Maternity Protection Act 1994 and she is estopped by that Decision from seeking to re-litigate that cause of action again.

Accordingly the Court must allow the Employer's appeal and overturn the Decision of the Equality Tribunal. The Complainant's appeal fails.

Signed on behalf of the Labour Court

Caroline Jenkinson
25th October, 2013______________________
JFDeputy Chairman

NOTE

Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.