EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD128/2015
MN78/2015
CLAIM(S) OF:
Mai O'Reilly
-claimant
Against
C & F Automotive Limited T/A Iralco
-respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. T. Ryan
Members: Mr P. Pierson
Mr N. Dowling
heard this claim at Mullingar on 22nd February 2016
Representation:
Claimant: Mr. Tiernan Lowey B.L. instructed by Denise Cassidy Solicitor, Main Street, Virginia, Co. Cavan
Respondent: Mr Tom Harrington, In House Legal Advisor to the respondent, Collinstown, Mullingar, Co. Westmeath
Background:
The respondent raised two preliminary issues at the outset of the hearing and submitted written submissions to the Tribunal. The claimant replied by way of oral submission on the day of hearing but was invited to submit written submissions following the hearing, to which the respondent was given an opportunity to reply.
First Preliminary Issue:
The respondent's representative raised a preliminary issue as to the jurisdiction of the Tribunal to hear the claims on the basis that the claimant had lodged claims relating to her alleged constructive dismissal under both the Unfair Dismissals Acts and the Employment Equality Acts. It was submitted by the respondent that the Employment Appeals Tribunal did not have jurisdiction to hear the claim unless or until the Director of the Equality Tribunal directed otherwise.
The respondent sought to rely on S.101 (2) of the Employment Equality Acts 1998 to 2004, which states that:
“where an individual has referred a case to the Director under section 77(1) and either a settlement has been reached by mediation or the Director has begun an investigation under section 79, the individual –if he or she was dismissed before so referring the case, shall not be entitled to seek redress (or to exercise, or continue to exercise, any other power) under the Unfair Dismissals Acts 1977 to 1993 in respect of the dismissal, unless the Director, having completed the investigation and in an appropriate case, directs otherwise and so notifies the complainant and the respondent”.
The claimant in this case submitted a claim to the EAT on the 15th December 2014 and a claim to the Equality Tribunal on the 17th December 2014. It was the respondent’s submission that “the claims arise out of the same nucleus of operative facts and that the unfair dismissal claim is not distinguishable from the discriminatory treatment alleged and that the two claims are connected.” The respondent argued that, therefore, both claims could not proceed. The respondent also argued that the Director of the Equality Tribunal had commenced an investigation under section 79 into the claim before it by calling for submissions from the claimant. The respondent relied on letter dated 24th November 2015 from the Workplace Relations Commission stating that the case: “…will now proceed by investigation and decision.”
It was submitted by the claimant that the EAT had jurisdiction to hear the unfair dismissals claim and that the provision of Section 101(2) of the Employment Equality Acts makes it clear that the Tribunal is only prevented from granting an individual redress under the Unfair Dismissals Acts where:
a. the individual has referred a complaint to the Director of the Equality Tribunal in relation to a dismissal;
b. the Director has begun an investigation under section 79; and
c. the Director, having completed any such investigation and in an appropriate case, has not directed that the individual shall be entitled to seek redress under the Unfair Dismissals Acts.
In this case while a claim was referred to the Director of the Equality Tribunal:
a. the Director has not begun an investigation under section 79 and
b. the Director has clearly in those circumstances not had occasion to direct that that individual should be entitled to seek redress under the Unfair Dismissals Acts 1977 to 2007 in respect of the dismissal.
The claimant further submitted that the Decisions of the Equality Tribunal now routinely state that the investigation has commenced on the day the Director delegated the claim to an Equality Officer pursuant to section 75 of the Employment Equality Act 1998.
When has an investigation under Section 79 of the Employment Equality Act 1988 deemed to have begun?
The issue of when the "Director can be said to have begun an investigation" was considered by the High Court in Judicial Review proceedings brought by the Employee arising out of the Determination by the EAT in Cullen v Connacht Gold Limited [UD 787/2006]. The claimant brought Judicial Review Proceedings in the High Court - Cullen v Employment Appeals Tribunal [2008/88JR] (the "Cullen Case"). The EAT Determination that the provision of submissions to the Equality Tribunal meant that an investigation had begun was quashed by MacMenamin J. In the light of this High Court decision, it is now accepted that the requirements of section 101 (2) will be met when a claim is delegated by the Director of the Equality Tribunal to an Equality Officer. Not until then can the Director (of the Equality Tribunal) be said to have "begun the investigation under Section 79".
The Tribunal carefully considered the claimant’s and Respondents’ submissions. The letter from the Workplace Relations Commission, dated the 24th November 2015, was carefully scrutinised. Some of the content of this letter, such as, “This case will now proceed by investigation and decision” supports the respondent’s contention that the Equality Hearing had begun. However the concluding sentence of the letter – “This case will be assigned to an Adjudicator” is more persuasive that the claim had not been assigned to a Director for hearing. Following on from the Cullen case it is clear that the claimant’s complaint to the Equality Tribunal had not yet begun, because it had not yet been assigned to a Director for hearing.
Accordingly the Tribunal determines that it has jurisdiction to hear the claim before it.
Second Preliminary Issue:
The respondent also raised a second preliminary issue regarding a third set of parallel proceedings initiated by the claimant for personal injuries and wage loss under common law which was lodged on the 12th June 2015 to the Injuries Board claiming both personal injuries related to stress and anxiety together with loss of wages. It was the respondent’s submission that the details of this complaint and the unfair dismissals claim were “virtually identical.” Authorisation from the Injuries Board to commence proceedings was issued on the 18th June 2015. The respondent submitted that the claimant must elect whether to proceed under the Unfair Dismissal legislation or pursue her claim at common law.
It was the claimant’s submission that there are no civil proceedings in being such as would operate to restrict the Tribunal’s jurisdiction from hearing the claim. The claimant sought to rely on S.15 of the Unfair Dismissal Acts, which provides:
15.-(1) Nothing in this Act, apart from this section, shall prejudice the right of a person to recover damages at common law for wrongful dismissal.
(2) Where an employee gives a notice in writing under section 8 (2) of this Act in respect of a dismissal to a rights commissioner or the Tribunal, he shall not be entitled to recover damages at common law for wrongful dismissal in respect of that dismissal.
(3) Where proceedings for damages at common law for wrongful dismissal are initiated by or on behalf of an employee, the employee shall not be entitled to redress under this Act in respect of the dismissal to which the proceedings relate.
(4) A person who accepts redress awarded under section 9 or 10 of the Anti-Discrimination (Pay) Act, 1974, in respect of any dismissal shall not be entitled to accept redress awarded under section 7 of this Act in respect of that dismissal and a person who accepts redress awarded under the said section 7 in respect of any dismissal shall not be entitled to accept redress awarded under the said section 9 or 10 in respect of that dismissal.
It was submitted by the claimant that the foregoing provision makes it clear (particularly at subsection 3) that the Tribunal is only prevented from hearing a complaint when a hearing has already commenced in the civil courts and when that hearing concerns proceedings for damages at common law for wrongful dismissal. Accordingly, where any restriction to the Tribunal could be said to exist in relation to existing civil proceedings, it was submitted that it would not apply to a claim for damages in relation to personal injuries. In any event, no personal injuries proceedings are in being.
The Tribunal considered the following case law against the factual background to the claim before it:
It took cognisance of the rule in Henderson V Henderson (1843) 3 Hare 100 which is designed to prevent the duplication of proceedings. The underlying rule in Henderson v Henderson is that there should be finality to litigation (subject to appeal) and that a party should not be twice vexed in the same matter.
In Philip Carrie V Employment Appeals Tribunal and Bus Átha Cliath/Dublin Bus 2008/07749 the applicant brought Judicial Review proceedings in the High Court against a decision of the Employment Appeals (EAT) to adjourn the proceedings before it pending the hearing of proceedings in the High Court on the grounds that:
"The Tribunal is satisfied that both cases are intimately interlinked as establishing the date of the commencement of the compensable loss for the purposes of the Tribunal and would involve making a finding as to the duration of the injury the subject of the High Court claim. For this and other reasons the claim under the Unfair Dismissals Acts 1977 to 2003 is therefore postponed pending the resolution of the High Court case of PC V Bus Átha Cliath/Dublin Bus with Record Number 2008/5795P".
In the High Court Sheehan J refused all reliefs sought by the applicant on the grounds that the EAT had acted within jurisdiction in deciding to adjourn the EAT hearing until after the personal injuries action brought by the applicant.
In Cunningham V Intel Ireland Ltd [2013] IEHC 207 Ms Cunningham returned from a combination of sick leave and maternity leave in 2008 and instituted a claim for gender discrimination against her employer on the grounds that Intel failed to allow her to return to her original job as a Workforce Mobility Manager and failed to provide her with a job to match her grade level. In her claim before the Equality Tribunal Ms Cunningham complained that her alleged discrimination affected her "health and wellbeing". Ms Cunningham's claim in the High Court also related the same alleged damage to her "health and wellbeing". Intel brought a motion to strike out Ms Cunningham's personal injury proceedings for abuse of process and/or duplication of her discrimination proceedings in the High Court. In his judgement Hedigan J, observed that Ms Cunningham had "attempted to draw an artificial distinction between her Equality Tribunal Complaint and her Personal Injury Proceedings" and ruled in favour of Intel again observing that: "Thus 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".
In Parsons V Iarnrod Eireann [1997] 2 I.R. 523 the High Court heard that the claimant had been dismissed from his employment by the Defendant and brought a claim for unfair dismissal under the Unfair Dismissals Acts. Subsequently he issued proceedings in the High Court seeking a number of reliefs and in particular damages for "wrongful and/or unfair dismissal". In its defence to the High Court proceedings the employer raised a preliminary objection seeking to have the claim struck out as it contravened Section 15 (2) of the Unfair Dismissals Act 1977 (as amended). The High Court allowed the employer's preliminary objection and struck out the proceedings. The plaintiff appealed unsuccessfully to the Supreme Court. In the course of his judgement, speaking for the Supreme Court, Barrington J set out the statutory boundaries in this way:
"Section 15 of the Unfair Dismissals Act [1977] provides that the worker must choose between suing for damages at common law and claiming relief under the ...Act. Subsection 2 accordingly provides that if he claims relief under the Act of 1977 he is not entitled to recover damages at common law; while subsection 3 provided that where proceedings for damages at common law for wrongful dismissal are initiated by or on behalf of an employee the employee shall not be entitled to redress under the Unfair Dismissals Act 1977 in respect of the same dismissal".
It is clear from the above cases that there should be “finality to litigation (subject to appeal) and that a party should not be twice vexed in the same matter”. It was the respondent’s submission that the details of the High Court claim and the unfair dismissals claim arose from the same set of facts.
In support of his submission the respondent referred the Tribunal to the case of Ciaran Culkin v Sligo County Council [2015] IEHC 46. Culkin had commenced Personal Injury proceedings in the High Court and at the same time made a complaint to the Equality Tribunal arising from the similar facts.
The Tribunal distinguishes the Culkin case from the claim before it for the following reasons:
- At the outset of the Equality Tribunal hearing, following an application by the respondent that Culkin could not pursue a claim at common law in the High Court, while at the same time pursuing a claim before the Tribunal, Mr Culkin chose to proceed with his case before the Tribunal, and,
- High Court Proceedings had actually commenced – Culkin’s Personal Injury Summons issued on the 2nd February 2011.
In the case before it the claimant did not make any such election before the Equality Tribunal and no Personal Injury Summons had issued.
Whether High Court proceedings have commenced?
The Tribunal had to consider whether High Court proceedings had commenced. It noted that an Authorisation from the Injuries Board to commence proceedings was issued on the 18th June 2015. This facilitates the claimant in bringing High Court Proceedings. It is mandatory (in most cases) that an Authorisation must issue before High Court proceedings can be commenced. The respondent submitted that the claimant must elect whether to proceed under the Unfair Dismissal legislation or pursue her claim at common law. The Tribunal considered this and referred to Section 15 (3) of the Unfair Dismissals Act 1977, which states:
(3) Where proceedings for damages at common law for wrongful dismissal are initiated by or on behalf of an employee, the employee shall not be entitled to redress under this Act in respect of the dismissal to which the proceedings relate.
The issuing of an Authorisation to commence proceedings at common law, is not the same as commencing proceedings at common law for wrongful dismissal. It does not mean that proceedings for wrongful dismissal “are initiated”. As stated above it merely facilitates the bringing of such proceedings.
Accordingly the Tribunal determines that it has jurisdiction to hear the claim before it.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)