UDD1959

The Adjudication Officer in a decision dated 31^stJuly 2018 set out as follows:-

• DECISION:

  Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissals claim consisting of a grant of redress in accordance with section 7 of the 1977 Act

  For the reasons set out above Complaints CA-00015854-001 and 003 both fall for want of prosecution and they are dismissed.’

The Court decided to consider this matter as a preliminary issue on the basis that the Court’s decision on this preliminary matter has the potential to dispose of the appeal in its entirety.

Preliminary matter

It is common case that at the hearing of the Adjudication Officer the Appellant and her representative, in circumstances set out by the Adjudication Officer, withdrew from the hearing. The Adjudication Officer recorded in the text of the document he issued, that

‘The hearing could have proceeded but as it did not, and as the cause of this was the withdrawal of the complainant and her solicitor, the complaint must fail for want of prosecution’.

The document issued by the Adjudication Officer went on as set out above in a text under the heading ‘DECISION’.

Summary position of the Respondent

The Respondent submitted to the Court that the Appellant deliberately did not proceed with her complaint before the Adjudication Officer and that the proceedings before the Court are a purported appeal from a decision of the Adjudication Officer to dismiss a claim that was deliberately not proceeded with. That decision to dismiss the claim was made in exercise by the Adjudication Officer of an inherent power to dismiss a claim referred to him or her under the Act. The Respondent submitted that the Court has no jurisdiction to hear such an appeal.

The Respondent went on to submit that once the Adjudication Officer decided that he was not going to permit the claim to proceed on an undefended basis then the Appellant’s remedy was to seek a judicial review of that decision. The Respondent submitted that the Appellant did not so do and that had she done so, any such application would not have succeeded having regard to the decision of the Supreme Court in Halal Meat Packers (Ballyhaunis) Limited v EAT 1990 WJSC 731.

The Respondent submitted that Section 48 of the Workplace Relations Act, 2015 (the Act of 2015) permits the Director General of the Workplace Relations Commission and the Labour Court to strike out proceedings which are not pursued for a period of one year. That section of the Act of 2015 permits no appeal from such a decision of the Court or the Director General. The Respondent submitted that the Appellant seeks to pursue an appeal of the decision of the Adjudication Officer in circumstances where she deliberately decided not to pursue her complaint whereas the Act of 2015 permits no appeal from a decision by the Director General or the Court to strike out a complaint or an appeal.

The Respondent, at the hearing of the Court and separately from the making of a written submission to the Court in advance of the hearing and which submission itself was submitted in breach of the rules of the Court made pursuant to Section 20(5) of the Industrial Relations Act, 1946 many months after the period set out by the Court for the making of such a submission, put a book of authorities before the Court.

The Respondent submitted that this Court is obliged, having regard to the Supreme Court decision in Fitzgibbon v Law Society of Ireland [2014] IESC 48, that it not necessarily the case that what happened at first instance is entirely irrelevant to a Court providing a de-novo appeal. The Respondent also put the decision of the Supreme Court in EMI Records Ltd v Data Protection Commissioner [2013] IESC 34 before the Court to support a contention that, were the Court to hear the within appeal, the Respondent would, in effect, be improperly deprived of its legal entitlement to a hearing at first instance. The Respondent also submitted the case of McCann v Judge Groarke and the DPP [2001] 3 I.R. 431 to support the proposition that an Adjudication Officer has a broad jurisdiction outside the explicit provisions of the Statute which confers jurisdiction upon him or her, to strike out an complaint for default of appearance on the part of the complainant or anyone on his behalf.

The Respondent submitted that the text of the decision of the Adjudication Officer, referring as it does to the requirements of Section 8 of the Act, should not be relied upon by the Court because the format for decisions of Adjudication Officers follows a template.

Summary position of the Appellant

The Appellant submitted that its withdrawal from the hearing of the Adjudication Officer arose entirely out of the failure of the Respondent to make its submission to the Workplace Relations Commission in accordance with the timeframes provided for in the procedures of the Commission. The Appellant submitted that the Respondent’s default in this regard left the Appellant open to ‘ambushing’ before the Adjudication Officer. The Appellant, for reasons associated with the timeframes involved in adjournment of proceedings before an Adjudication Officer, withdrew from that proceeding and instead relied upon his right of appeal to this Court from any decision of an Adjudication Officer.

Relevant law

The preliminary matter before the Court relates to the decision made by the Adjudication Officer at first instance and whether that decision is capable of appeal to this Court. The Act at Section 8 in relevant part makes provision for determination of claims for unfair dismissal by an Adjudication Officer as follows:

• 8. (1) (a) A claim by an employee against an employer for redress under this Act for unfair dismissal may be referred by the employee to the Director General and, where such a claim is so referred, the Director General shall, subject to section 39 of the Act of 2015, refer the claim to an adjudication officer for adjudication by that officer.
  • (b) Section 39 of the Act of 2015 shall apply to a claim for redress referred to the Director General under paragraph (a) as it applies to a complaint presented or dispute referred to the Director General under section 41 of that Act, subject to the modification that references, in the said section 39, to a complaint or dispute shall be construed as references to a claim for redress so referred.

    (c) An adjudication officer to whom a claim for redress is referred under this section shall —

    (i) inquire into the claim,

    • (ii) give the parties to the claim an opportunity to be heard by the adjudication officer and to present to the adjudication officer any evidence relevant to the claim,

      (iii) make a decision in relation to the claim consisting of an award of redress in accordance with section 7 or the dismissal of the claim, and

    (iv) give the parties to the claim a copy of that decision in writing.

• 8A (2) Section 44 of the Workplace Relations Act 2015 shall apply to a decision of an adjudication officer given in respect of a claim for redress under this Act by an employee as it applies to a decision of an adjudication officer given in proceedings under section 41 of that Act, subject to the following modifications:

  (a) the substitution of the following subsection for subsection (1):

  • ‘(1) (a) A party to a claim for redress under the Act of 1977 may appeal a decision of an adjudication officer given in relation to that claim to the Labour Court and, where the party does so, the Labour Court shall —
    • (i) give the parties to the appeal an opportunity to be heard by it and to present to it any evidence relevant to the appeal,

      (ii) make a decision in relation to the appeal affirming, varying or setting aside the decision of the adjudication officer to which the appeal relates, and

    (iii) give the parties to the appeal a copy of that decision in writing.

The Respondent sets out that the decision of the Adjudication Officer made on 31^stJuly 2018 was made, not in exercise it the Adjudication Officer’s power as set out in the Act at Section 8(1), but rather was made in exercise of what the Respondent described as an inherent power of the Adjudication Officer to dismiss a complaint made under the Act.

The Court’s jurisdiction to hear an appeal of a decision of an Adjudication Officer derives from the statute. The Court notes that the Act at Section 8A provides as set out above that, where a party appeals a decision of an Adjudication Officer, the Court shall give the parties an opportunity to be heard and shall make a decision in relation to the appeal. It is clear therefore, from a plain reading of the relevant statutory provision, that where an Adjudication Officer makes a decision under the Act the Court has no discretion in the matter of whether it will, upon receipt of an appeal properly made, hear the parties and, having done so, make a decision. The Court has considered the authorities proffered by the Respondent and concludes that no authority has been proffered which would allow this Court to decline to exercise the statutory function mandatorily placed upon it by the statute.

The matter raised by the Respondent’s submission therefore as regards the jurisdiction of the Court in the within matter will turn on whether the Adjudication Officer did in fact make a decision under the Act.

As the Respondent has submitted, any party contending that the Adjudication Officer has not properly addressed his jurisdiction, has remedies of review available elsewhere other than in this Court. This Court has no statutory or general legal function of review of the proceedings of an Adjudication Officer or the Workplace Relations Commission in general save as provided by statute. Neither is the Court at large to decline to exercise its mandatory jurisdiction as set out in statute.

The Court notes that the Act gives an Adjudication Officer an explicit power to dismiss a claim for redress made under the Act. That power is set out at 8(1)(c)(iii) of the Act which provides that an Adjudication Officer shall ‘(iii) make a decision in relation to the claim consisting of an award of redress in accordance with section 7 or the dismissal of the claim,’. The element of the decision document issued by the Adjudication Officer which lies under the heading ‘DECISION’ states that the claim made by the Appellant falls for want of prosecution and is ‘dismissed’. It is not for this Court to look behind the decision of the Adjudication Officer or to enquire as to the basis for an assertion that a claim referred to him under the statute can, in exercise of his explicit statutory functions, be adjudged by an Adjudication Officer to ‘fall for want of prosecution’. It is for this Court however to note that the Adjudication Officer in this matter has, on plain reading of his decision, made a decision that the claim is dismissed. That decision is, by reference to the Act at Section 8(1)(c)(iii), within the jurisdiction of an Adjudication Officer to make and is in the form set out in the Act for such a decision.

The Court notes the submission of the Respondent that decisions of the Adjudication Officer are produced on a template basis and that therefore the text or structure of the passage setting out a decision should not be relied upon. The Court is unable to find within that contention a basis to disregard the plain text of the decision of the Adjudication Officer.

The Respondent asks the Court to conclude, notwithstanding that the Adjudication Officer identified Section 8(1) of the Act as placing a requirement upon him to make a decision and then went on to set out a decision at least partly in conformity with the power conferred upon him by that section, that the Adjudication Officer did not make a decision as required by the Act at Section 8(1). The Respondent submits that the Adjudication Officer in fact made a decision in exercise of a power other than one conferred upon him by the Act. The Respondent submitted that, in fact, the Adjudication Officer exercised an inherent power to dismiss a claim which had been referred to him. The Court is unaware of an inherent power conferred upon an Adjudication Officer to dismiss a claim referred to him or her. The Court is aware of the explicit power to dismiss a claim conferred upon an Adjudication Officer by the Act at Section 8(1)(iii) as well as explicit powers to strike out a claim conferred upon the Director General and the Labour Court by Section 48 of the Act. The Court concludes that it would be contrary to reason to conclude that the Adjudication Officer in the within matter, having set out that Section 8 of the Act required him to make a decision and then having immediately set out a decision in conformity with an explicit jurisdiction provided by the statute at Section 8, should be understood to have made that decision in exercise of a power conferred upon him by some means other than the statute.

The Court finds that the Adjudication Officer made a decision to dismiss the within claim and that decision was made in accordance with the exercise by the Adjudication Officer of the power conferred upon him by the Act at Section 8(1)(c)(iii). That decision having been made and an appeal of that decision having been received by the Court the Court has jurisdiction to hear that appeal and is obliged by the statute to hear the parties and make a decision in respect of that appeal.

Determination of the preliminary matter

For the reasons set out above the Court determines that the within appeal is a valid appeal of a decision of an Adjudication Officer made under the act at section 8(1). The Court will now proceed as required by the Act to make arrangements to hear the parties and to make a decision on the within appeal.

The Court so determines.

Signed on behalf of the Labour Court



Kevin Foley
CR______________________
14 October, 2019Chairman



NOTE

Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.