FULL RECOMMENDATION
PARTIES : PARKGATE LOUNGE LIMITED ABBOTT LOUNGE DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer's Decision No.ADJ-00016289 CA-00021139-002,003,004 For ease of reference the parties will be referred to in this decision as they were at first instance. Hence, the former employer will be referred to as the Respondent and the worker as the Complainant. Preliminary issue The Complainant submitted that the written notice of appeal submitted to the Court on 11thFebruary 2020 was so lacking in the detail required by the Rules of the Court as to mean that the Complainant was never on notice of the within appeal in the normal way and consequently could not be regarded as a valid appeal. The Respondent contended that the written notice of appeal given to the Court constituted an appeal within the meaning of the Act. The Court decided to address this issue as a preliminary matter and to make a decision in relation to the matter on the basis that the issue has the potential to dispose of the entire matter. Neither party objected to this approach at the hearing of the Court. Summary Position of the Respondent The solicitor for the Respondent submitted that the written notice of appeal contained the address of the Complainant as known to the Respondent. In addition, the phone number for the solicitor who represented the complainant at first instance was given on the written notice of appeal given to the Court albeit as the number for the Complainant himself. The Respondent appended the decision of the Adjudication Officer in the matter to the written notice of appeal and that decision carried the name of the Complainant and the name albeit not the address or contact details of his legal representative at first instance. The Respondent had no means of knowing that the Complainant’s representing solicitor at first instance would also represent him on appeal. The Respondent submitted that the appeal form was discretionary in nature and does not have a statutory basis. In support of that contention the Respondent referred toCounty Louth VEC v Equality Tribunal [2009] IEHC 370.The Respondent also drew the Court’s attention to the cases ofAuto Depot v Matieu WTC19/23, Halal Meat Packers (Ballyhaunis) Ltd v Employment Appeals Tribunal, Johnson Brothers STL Group v Donnelly (TED20/2017)andTony Lowe v Ryanair. The Respondent submitted that, having regard to all of the authorities, any omissions or errors on the face of the written notice of appeal are minor and of such a nature as they can be overlooked. Summary position of the Complainant. The Respondent, in submitting what purported to be a written notice of appeal in the manner required by Section 44(2) of the Workplace Relations Act, 2015 (the Act of 2015), provided the Court with an incorrect address for the Complainant and provided no detail of the Complainant’s representative to the Court. The Complainant submitted that, in order for a written notice given to the Court to constitute an appeal within the meaning of the Act, it must be in the form prescribed by the Court in accordance with Section 44(2) of the Act of 2015 and set down by the Court under Rule 18 of Labour Court Rules 2020 which were formulated by the Court in exercise of its statutory function set out in Section 20(5) of the Industrial Relations Act, 1946. The form provided by the Court under its Rules for the making of an appeal requires the provision of contact details for the Appellant and the Respondent as well as contact details for representatives, if any, of both parties. The Complainant submitted that the address purporting to be for the Complainant which was carried on the appeal form was known by the Respondent to be incorrect. In addition, the Respondent, who was represented by a solicitor, had full knowledge as a result of litigation at first instance and the issuance of a Civil Bill in August 2018, of the contact details for the Complainant’s representative Solicitor. The Respondent however chose not to provide these details to the Court on what is suggested by the Respondent to constitute a written notice of appeal within the meaning of the Act of 2015 or to correct the incorrect information as a result of the Civil Bill proceedings. The Respondent did provide what it asserted on the form was the phone number of the Complainant. The Respondent knew the Complainant’s phone number and yet provided the incorrect number to the Court. As it happened, the number which the Respondent asserted to be that of the Complainant was in fact the number of the office of the Solicitor representing him. The Complainant submitted that the omissions on the form drawn up under statute by the Court for the making of an appeal were not trivial or minor matters. They had the effect of depriving the Court of the capacity to make the Complainant aware of the existence of an appeal and deprived the Complainant of knowledge of the appeal. The extent of the prejudice to the Complainant can be judged from the fact that he had served a Civil Bill to enforce the decision of the Adjudication Officer because he was unaware of the existence of the appeal. Similarly, when the appeal was scheduled for hearing by the Court, the Complainant had, by reason of the fact that the notification of the hearing issued by the Court was to an incorrect address, no knowledge of that fact or of the date or venue of hearing of the appeal. The Complainant became aware of the existence of the appeal accidentally when, as a result of a pandemic driven change of venue, the Secretary to the Court used the phone number given on the form which she believed was the Complainant’s own phone number, to make contact with the Complainant to advise him of the change of venue. That phone number was in fact the phone number of the Complainant’s solicitor and, through the engagement which ensued, the Complainant’s solicitor became aware of the existence of the within appeal. Relevant Law and Rules of the Court 2020 The Act of 2015 makes provision at section 44(2) as follows:
The Industrial Relations Act, 1946 at Section 20(5) as follows: (5) Subject to this section, the Court may make rules for the regulation of its proceedings. The Labour Court Rules 2020 in relevant part make provision as follows:
Discussion and conclusions on the preliminary matter. The Labour Court Rules 2020, made in accordance with the Statute, provide that the notice of appeal should be given on a form provided by the Court for that purpose. The Rules also provide that the notice of appeal should be completed in full. The jurisprudence of this Court and higher Courts makes clear that an insistence on absolute compliance with the requirement to complete every element and detail sought on a notice of appeal is not appropriate. Nevertheless, the Court considers that an appellant is under an obligation, at a minimum, to provide the Court with the information which is essential to ensure fair procedure in considering the appeal. A fundamental requirement of fair procedure is that both parties to an appeal before the Court are afforded full and adequate opportunity to state their case and to know the case made in opposition to them. Where the details provided to the Court on the written notice of appeal are so deficient in detail and accuracy as to result, unbeknownst to the Court, in an incapacity to make a party aware of the existence of the appeal and subsequently of the date and time of a hearing of that appeal; a significant issue of fairness in procedure arises. Where a failure to comply with the Rules of the Court is of such a magnitude as to imperil the fair conduct of the appeal by the Court, a significant issue arises as regards the validity of the purported appeal at all. In the case ofJohnson Brothers STL Group -V- DonnellyTED1726,this Court relied on the Supreme Court decision of Henchy J.inMonaghan Urban District Council v Alf-A-Bet Promotions Ltd [1980] ILRM 64when it stated:
InUDD1831 Ryanair Ltd -V- Lowethe Court stated:
Applying the principles set down by the Supreme Court inMonaghan Urban District Council v Alf-A-Bet Promotions Ltdand relied upon by this Court inJohnson Brothers STL Group -V- DonnellyTED1726,as well as the decision of this CourtinRyanair v Lowe,the Court concludes that the failure of the Solicitor representing the Respondent to supply the Court on the face of the notice of appeal with the details of the Solicitor who represented the Complainant at first instance is not a trivial, technical peripheral or insubstantial matter.It cannot be accepted that the failure is excusable on grounds that the Respondent Solicitor could not be certain as regards the representational arrangements of the Complainant at the point of appeal. This Court and other Courts rely upon the legal profession to respond appropriately in situations when a Solicitor is incorrectly identified on a notice of appeal to the Labour Court or any Court as representative of a client who they no longer represent. The omission of representative details on the notice of appeal is compounded by the provision of inaccurate contact details in every respect for the Complainant on the notice of appeal. It is the Court’s view that the omissions on the notice of appeal are such as to imperil the fair conduct of the statutory appeal before the Court The Court is fortified in its conclusions in relation to these matters by the fact that, but for a re-arrangement of venue necessitated by the unique event of restrictions driven by a global pandemic, the Complainant would, by reason of the absence of required information on the notice of appeal, have been deprived of the opportunity to defend the appeal. Therefore, the Court concludes that the omissions of the Respondent on the form provided by the Court for the purpose of giving the Court notice in writing of the appeal are not omissions which could, by any reasonable standard, be regarded as trivial, technical, peripheral, or otherwise insubstantial. For these reasons, the Court concludes that the omissions on the notice of the appeal to the Court are of such a nature as to mean that no valid appeal has been initiated on the basis of the form submitted to the Court. The Court therefore concludes that no valid appeal of the decision of the Adjudication Officer in the complaint of the complainant under the Act lies before it. Determination For the reasons outlined above the Court has concluded that no valid appeal has been made in this case and that it lacks jurisdiction to make a decision in accordance with the Act of 2015 at Section 44(1) The Court so decides.
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