FTD186

The Complainant appealed against that decision to this Court. Both sides have asked the Court to determine this preliminary issue before proceeding to hear the substantive matters in dispute between the parties.

Position of the Parties

Counsel for the Respondent submits that as a Rights Commissioner/Adjudication Officer has decided that the Complainant is not an employee for the purposes of the Organisation of Working Time Act 1997 and the definition of an employee in the Protection of Employees (Fixed-Term Work) Act 2003 is identical to that in the 1997 Act the Complainant’s employment status has been determined and she is now estopped from relitigating this matter through these proceedings under the Protection of Employees (Fixed-Term Work) Act 2003.

The Complainant rejects that proposition and submits that the history of her employment relationship with the Respondent is complex, that her employment status has been the subject of conflicting findings by a Rights Commissioner under the 1997 Act and by a Deciding Officer under the Social Welfare Acts and that she is entitled to exercise her statutory right of appeal under the Act of 2003.

Findings of the Court

The Law

Statutory Definition of Employee

The definition of an employee in the Organisation of Working Time Act is, in relevant part, as follows: -

“employee” means a person of any age, who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment and references, in relation to an employer, to an employee shall be construed as references to an employee employed by that employer

The definition of an employee under the 2003 Act is in relevant part as follows: -

“employee” means a person of any age, who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment and references, in relation to an employer, to an employee shall be construed as references to an employee employed by that employer

Issue Estoppel

The decision of Charlton J in O’Hara and Gallagher v ACC Bank plc [2011] IEHC 367 is authority for the proposition that the doctrine of estoppel applies to decisions of statutory tribunals. In it he states

• • 19. Issue estoppel derives from the principle that the courts should regulate their own process by preventing the abuse of litigation. An issue finally determined by a judicial tribunal cannot be re-litigated by the parties to an action. With the introduction into common law systems of quasi-judicial tribunals, that rule has been extended outside the ambit of a decision made by a judge and into decisions in the context of complaints before bodies which have a special jurisdiction conferred by statute. Having read the relevant case law, I am satisfied that the trend of decisions in this jurisdiction, and in the neighbouring kingdom, is in favour of applying the rules of issue estoppel to quasi-judicial tribunals, even though the jurisdiction which they exercise may be specific to them and not necessarily exercisable by a court, save in the context of any mechanism of an appeal specifically conferred by statute.

• “While the doctrine of what has come to be called ‘issue estoppel’ has been the subject of explanation and analysis in many modern decisions, its essential features were helpfully summarised as follows by Lord Guest in Carl Zeiss Steiftung v. Rayner & Keeler Limited (2) [1967] AC 853 at p. 935A:
  
  ‘The requirements of issue estoppel still remain (1) that the same question has been decided, (2) that the judicial decision which is said to create the estoppel was final; and (3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which estoppel is raised or their privies”.

• 
  1.The issue before a Rights Commissioner in the present case has previously been decided in a case before a Rights Commissioner.

  2.The previous Rights Commissioner’s decision was accepted by the parties as, while it was initially appealed by the Claimant, the appeal was subsequently withdrawn prior to a Labour Court hearing and

  3.The parties to the previous Rights Commissioner hearing under the 1997 Act are the same parties to the current complaint under the 2003 Act in which the estoppel issue is raised.

“I am satisfied that the issue of the Claimant’s employment status, which arises in this case, was finally dealt with in the previous hearing before a Rights Commissioner and therefore it cannot be reopened and the parties are bound by the Decision on that point in the earlier proceedings. The Claimant is estopped from pursuing the issue from which the within claim is grounded.”

The Complainant has appealed against that decision to this Court.

The Court has examined the decision of the Rights Commissioner delivered on 28 September 2012 and finds that the question of the Complainant’s employment status with the respondent was central to the finding in that decision. The Court further finds that the Complainant initiated an appeal against that decision to this Court and subsequently withdrew it in favour of seeking to have the matter decided by the Scope Section of the Department of Social Protection under the relevant Social Welfare Acts. The Court notes that the High Court inThe National Museum of Ireland -v- Minister for Social Protection [2016] IEHC 135 Judge Deirdre Murphy stated:-

• 51. The Court does not consider that issue estoppel arises in the instant case. The Organisation of Working Time Act 1997, the Protection of Employees (Fixed Term Work) Act 2003 and the Social Welfare Consolidation Act have all provided for different statutory mechanisms to resolve what are in essence, different issues arising from an employer-employee relationship. Each of those Acts provides for an ultimate appeal to the High Court on a point of law. None of the Acts provides that the decision of one decision making body is binding on the other. The legislature in its wisdom has seen fit to set up different statutory schemes to deal with different employment issues. Undoubtedly it would be far more efficient to have one body charged with the resolution of all issues relating to employment status. This however is a matter for the legislature and not the courts and as matters stand, employees enjoy rights to seek redress simultaneously from the Rights Commissioner and the Department of Social Welfare depending on the nature of their complaint.The Court finds therefore that the decision delivered in 2012 by the Rights Commissioner was final.

The Court further finds that the definition of “employee” in the 1997 and 2003 Acts are identical. Accordingly, the Court finds that decisions made under the 1997 Act regarding the status of the Complainant’s employment relationship with the Respondent are relevant to the determination of her status under the 2003 Act.

The Court therefore finds that it was decided in 2012 that the Complainant was not an employee for the purposes of that definition and it is not open to this Court to revisit that interpretation under this Act. That would be to make a distinction where there is no difference and would amount to instituting a review of a decision that could only properly have been considered by way of an appeal under the relevant statutory provisions set out in the 1997 Act. Such an appeal was lodged and subsequently withdrawn and cannot now be effectively reinstated by way of proceedings under this Act.

The Court therefore finds that the employment status of the Complainant with the respondent within the definition of employee set out in the 1997 Act and by parity of reasoning the 2003 Act was decided by the Rights Commissioner in 2012 and was not appealed at that time. Accordingly that finding binds the Complainant in these proceedings and cannot be reopened before this Court.

The Court grants the application made by the Respondent and determines that the Complainant is not an employee of the Respondent, is estopped from re-opening that issue before this Court and therefore does not have locus standi to bring a complaint under this Act.

Determination

The Complaint is not well founded. The Complainant is not an employee within the meaning of the 2003 Act and accordingly does not have locus standi to bring the instant proceedings before this Court.

The appeal is not allowed.

The Court so decides.

Signed on behalf of the Labour Court



Brendan Hayes
20 August 2018______________________
MNDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Michael Neville, Court Secretary.