FULL RECOMMENDATION
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES : M�R OIL LTD (REPRESENTED BY ALASTAIR PURDY & CO., SOLICITORS) - AND - MONIRUL ISLAM (REPRESENTED BY CL�ONA BOLAND, B.L., INSTRUCTED BY GREG NOLAN, SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr McCarthy |
1. Appeal of Rights Commissioner/Adjudication Officer Recommendation No. r-155830-ud-15.
BACKGROUND:
2. The Employer appealed the Recommendation of the Rights Commissioner/Adjudication Officer to the Labour Court in accordance with Section 8A of the Unfair Dismissals Act, 1977 to 2015 on 13 January 2017. A Labour Court hearing took place 27 March 2018. The following is the Determination of the Court::
DETERMINATION:
Mr Monirul Islam brought a complaint before a Rights Commissioner pursuant to the Unfair Dismissals Act 1977 (the Act) alleging that he was unfairly dismissed by his employer, M�r Oil Limited. The Adjudication Officer found in his favour and awarded him the sum of €25,000. The employer appealed that Decision to the Labour Court.
For ease of reference the parties are referred to as they were at first instance. Hence Mr Islam is referred to as "the Complainant" and M�r Oil Limited is referred to as "the Respondent".
Preliminary Issue
At the outset of the hearing of the appeal before the Labour Court, Mr Alastair Purdy, Alastair Purdy & Co. Solicitors, on behalf of the Respondent (which had initiated the appeal before this Court), raised a preliminary objection to the Court’s jurisdiction to hear and determine the appeal. He did so on the basis of the decision of the High Court inNurendale Ltd T/A Panda Waste -v- The Labour Court[2017] IEHC 806 (hereinafter referred to as‘Nurendale’).
Nurendaleconcerned an application by way of judicial review to quash a Determination of this Court in an appeal from a Recommendation of a Rights Commissioner given under the Act. The case in which the Recommendation was given had been initiated before the commencement of certain sections of the Workplace Relations Act 2015 (hereafter the 2015 Act) which, in effect, transferred the appellate jurisdiction under the Act from the Employment Appeals Tribunal to this Court. The relevant Recommendation was issued after the commencement of those sections on 1stOctober 2015.
The respondent in that case before this Court participated fully in the appeal without demur. However, when the Determination of this Court issued (which found against the respondent) it brought judicial review proceedings claiming that this Court lacked jurisdiction in the case. The gravamen of the case advanced before the High Court was that s.80 of the 2015 Act, properly construed, transferred appellate jurisdiction to this Court only in respect to cases under the Act initiated after the commencement of the said s.80.
In a judgment delivered on 12thDecember 2017 Ms Justice Faherty granted the Order sought. In her judgment Faherty J. engaged in an extensive analysis of various provisions of the 2015 Act. Having done so, she concluded that in cases under the Act the Employment Appeals Tribunal, rather than this Court, retained appellate jurisdiction where the complaint was initiated before 1stOctober 2015 irrespective of when the first instance decision issued.
The Instant Case
The point of objection was raised by Mr Purdy, who appeared for the Respondent /Appellant in this appeal. He did so, notwithstanding that the outcome of his objection, if successful, would be to leave undisturbed the first instance decision against which his Client sought to appeal. The Court is satisfied that Mr Purdy was obliged to raise this point in fulfilment of a Solicitor’s duty to draw the Court’s attention to any impediment to its jurisdiction.
Submissions
In response to a request from the Court both parties made careful and comprehensive submissions on the jurisdictional question raised. In essence, the Respondent submitted that, on the authority ofNurendale,this Court has no jurisdiction to hear the instant appeal. That submission was grounded in the fact that the case to which it relates was initiated on 26thMarch 2015.
For her part, Counsel for the Complainant, Ms Clíona Boland, B.L., instructed by Mr Greg Nolan, Greg Nolan, Solicitors, sought to distinguish the instant case on its facts from those inNurendale. Counsel also proposed an alternative approach to the construction of the relevant provisions of the 2015 Act to that taken by Faherty J., which, it was submitted, would result in this Court having the necessary jurisdiction.
Discussion and Conclusion
The doctrine ofstare decisisobliges this Court to follow the High Court with respect to theratio decidendiof a decision.
The Court has considered the judgment handed down by Faherty J. inNurendalewith great care. It is satisfied that theratio decidendiof that decision is encapsulated in the following passage from the judgment delivered: -
- "It seems to the Court that the provisions of s.80 of the 2015 Act must be the obvious point of departure for the purpose of determining which body, Labour Court or Tribunal, had jurisdiction to determine the notice party's appeal of the Rights Commissioner's recommendation on his unfair dismissal claim. I am satisfied that the clear import of s. 80(2) of the 2015 Act, in providing that the amendments made to the 1977 Act by s. 80(1) of the 2015 "shall not apply" in relation to a claim for redress under the 1977 Act brought before the commencement of the 2015 Act is to preserve, inter alia, the appeal structure provided for in s.9 of the 1977 Act in respect of redress claims under the 1977 Act that were brought before 1st October, 2015. Section 9 of the 1977 Act relates solely to an appeal from a recommendation of a Rights Commissioner to the Tribunal. Thus, pursuant to s. 80(2), this mechanism is retained in respect to an unfair dismissal claim brought before 1st October, 2015.I do not see how s.80(2) of the 2015 Act can admit of any other interpretation."
Notwithstanding the submissions advanced by Counsel for the Complainant in opposing the objection to the Court’s jurisdiction, it is clear beyond argument that the High Court has determined that in a case under the Act initiated before 1stOctober 2015 an appeal lies only to the Employment Appeals Tribunal and not to this Court. This Court is bound by that decision. It would be impermissible for this Court to engage in its own analysis of the relevant provisions of the 2015 Act which might or might not arrive at a different conclusion to that reached by the High Court.
The case to which the within appeal related was initiated prior to 1stOctober 2015. Consequently, on the authority ofNurendale,this Court has no jurisdiction to hear or determine the appeal.
The Court declines to accept jurisdiction and makes no further order.
Signed on behalf of the Labour Court
Caroline Jenkinson
19 June 2018______________________
CCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ceola Cronin, Court Secretary.