EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Roy O'Bryan (claimant) UD1211/2014
Against
Wilson James Consultancy Limited
(respondent)
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. M. Levey B.L.
Members: Mr. A. O'Mara
Mr N. Dowling
heard this claim at Dublin on 30th September 2015
Representation:
_______________
Claimant(s) : Mr Brendan Liddy, Hughes & Liddy Solicitors, 29 Fitzwilliam
Place, Dublin 2
Respondent(s) : Rosemary Mallon B.L. instructed by Ms Jacinta Conway, Ivor Fitzpatrick & Company, Solicitors, 44-45 St Stephen's Green, Dublin 2
The determination of the Tribunal was as follows:
This matter came before the Tribunal on 30th September 2015. At the outset it was submitted by the Respondent that the Tribunal does not have jurisdiction to hear the matter on the basis of section 15(3) of the UD Act (as amended by section 10 of the UD (amendment) Act, 1993). The relevant section states:
“Where the hearing by a court of proceedings for damages at common law for wrongful dismissal of an employee has commenced, the employee shall not be entitled to redress under this Act in respect of the dismissal to which the proceedings relate.’’
The claimant is a party to proceedings in the High Court and it is submitted that the proceedings have commenced by virtue of the fact that the Court granted an employment injunction in February 2014, where he was joined when the injunction was before the Court and dealt with on consent. The respondents claim that the granting of an interlocutory employment injunction constitutes the commencement of proceedings because, inter alia, it is seeking serious mandatory relief, unlike a motion for discovery or a motion for judgment in default of defence and because it is grounded and defended by way of evidence on affidavit before the Court. The claimant disputes this.
Murdoch’s dictionary defines an interlocutory injunction as a temporary injunction pending the trial of the action. A trial commences when the facts and law are formally examined by the Court. The Tribunal takes the view that an interlocutory application is purely procedural in nature in which the Court is not permitted to make any serious findings on fact or law. Ferris v.Ward,1998 SC, 2IR 194. Furthermore, the Tribunal agrees that the use of the word ‘hearing’ rather than the phrase ‘where proceedings have issued/commenced’, is indicative of the fact that Section 10(3) of the 1993 Act applies to the hearing of the action and no other stage of the proceedings.
Thus the Tribunal has jurisdiction to hear the claim.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)