FULL RECOMMENDATION
PROTECTION OF EMPLOYEES (EMPLOYERS' INSOLVENCY) ACTS, 1984 TO 2012 PARTIES : VINCENT SHIELDS SOLICITORS VINCENT SHIELDS - AND - MS MAJELLA O' HANLON (REPRESENTED BY GILVARRY & ASSOCIATES SOLICITORS) DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer's Decision No.ADJ-00021490 CA-00028194-002
The Complainant was employed as a legal secretary by a Solicitor’s firm. The Principal of the firm died intestate in December 2017. The business closed in May 2018 and the Complainant was made redundant. The Complainant applied for payment in respect of her redundancy to be met from the Insolvency Fund. This was refused initially by the Department and the Complainant lodged a complaint under the Act with the Workplace Relations Commission. As outlined above, the AO decided that the WRC did not have jurisdiction to decide the matter. The Complainant appealed to the Court. The Complainant has since received payment from the Department. The Court asked the Complainant’s representative to make a submission as to why the matter should not be regarded as ‘moot’, in order that the Court might consider if it should hear the appeal. Summary of Complainant’s arguments in respect of the issue of mootness. In making payment to the Complainant, the Department reserved the right to seek recoupment from the employer. Theoretically, it is possible that recoupment could be sought from the Complainant, though this is unlikely. There is a gap in the Act, which failed to transcribe fully the terms of Directive 80/9874/EEC, which was identified inRe Davis Joinery Ltd., (2013) IEHC353and dealt with more fully in the case ofGlegola v Minister for Social Protection 2017/56,in which case damages were awarded to the Complainant for the failure to provide in the Act the provisions of the Directive that the insolvency Fund would make payments not just in cases where insolvency had been declared but also where the relevant employment had closed down and available assets were insufficient to warrant proceedings. If the Department had continued refusal to pay, the Complainant would have been entitled to cite the ‘Glegola’ precedent. The issue that remains is the right of the Department to seek recoupment from the estate of the Complainant’s late employer. The Complainant has an interest in seeing that her claim was handled properly and has a sympathy for the estate of the late employer. The leading case regarding mootness is that ofGoold v.Collins 92004) IESC38,in which the Supreme Court noted that, ‘the proceeding may be said to be moot where there is no longer any legal dispute between the parties’. This judgment has been cited with approval by the Labour Court in a number of cases. However, in the case ofDepartment of Employment Affairs and Social Protection v. Ann Concarr, (FTD184),the Court, while noting that the issue in dispute had been resolved between the adjudication and the Court hearing, went on to issue a Determination because they felt it was important to correct a misinterpretation of the law in the Adjudication Officer’s decision. In the instant case, the AO Decision that she did not have jurisdiction under the 1984 Act is wrong and should be corrected. The impression on the WRC database is misleading. Therefore, even if the Court feels that the issue is moot, it should still determine the matter. Deliberation. In the ‘Goold’ case, referenced by the Complainant’s representative, Hardiman J. referred to the Canadian case ofBorowski v Canada, (1989) 1SCR342,in which the Supreme Court of Canada observed, that ‘The first rationale for the policy of mootness is that the court’s competence to resolve legal disputes is rooted in the adversary system. A full adversarial context, in which both parties have a full stake in the outcome, is fundamental to our legal system’. In the instant case, a simple application of this test suggests that the Complainant, having received the payment that was sought in her complaint, is no longer in an adversarial position with regard to the Department. It is not for the Court to engage in conjecture about hypothetical, potential future breaches of the Complainant’s rights under the Act. The simple, undeniable, fact is that, as of this moment in time, there is no dispute between the parties and, as noted in the case ofIrwin v. Deasy, (2010), IESC35,‘The mootness doctrine was applied by the courts to restrain parties from seeking advisory opinions on abstract, hypothetical or academic questions of law.’ It does not require any significant further deliberation for the Court to conclude that the issue before it concerning an alleged breach of the Complainant’s rights under the Act has been resolved. Any potential issues between the estate of the Complainant’s late employer and the Department are beyond the scope of this Court’s authority. The subject of the appeal to the Court is moot. The Complainant’s representative has argued that, even if the Court determines the issue to be moot, it should issue a Determination on the matter to correct what is argued to be a Decision by the AO that is incorrect in law. The basic principle of whether or not a court should determine an issue that is moot was set out by the Court of Appeal inCopymoore Ltd and Ors. V. The Commissioners of Public Works, (2015), IECA19,namely that a court should not determine issues that are moot unless there are special or exceptional circumstances that justify so doing. In the case of the Department and Ms. Concarr, referenced by the Complainant above, this Court took the view that the issues in the case concerned were of sufficient importance to warrant a Determination from the Court, notwithstanding the fact that the issue was moot. It could also be said in respect of that case that the Department had a ‘material interest’ in a point of law ‘of exceptional public importance’, as noted in ‘Irwin’, as there were many other potential complainants in circumstances similar to that of Ms. Concarr and that clarity in respect of the correct application of the law was essential. The Court is not satisfied that any aspect of the instant case warrants treating it as exceptional, such that the Court should set aside the caution to be expected in applying the doctrine of mootness. Accordingly, the appeal is disallowed. Determination The Decision of the Adjudication Officer is upheld.
NOTE Enquiries concerning this Determination should be addressed to Ceola Cronin, Court Secretary. |
