FULL RECOMMENDATION
PARTIES : AER LINGUS DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer Decision No. r-124565-pca-13/EH. The Adjudication Officer decided that the Appellant was not an employee of the Respondent at any material time. In reaching that conclusion the Adjudication Officer relied upon a decision of this Court (PCA 16/2) dated 5thJuly 2016 which recorded that the Appellant had confirmed to the Court that he had never been employed by the Respondent. In that matter, this Court decided that the appeal failed. Preliminary issues The Respondent in its submission raised issues as regards the capacity of the Appellant to sustain the within appeal on the basis that he had never been an employee of the Respondent. In addition, the Respondent contended that the issue of the Appellant’s employment status was Res Judicata by reference to an earlier decision of this Court and additionally as a result of a decision of the Circuit Court in separate litigation arising under another Act, The Court decided to consider the issue of the employment status of the Appellant and to hear the parties in relation to the proposition that the matter before the Court was Res Judicata as preliminary issues. The Court made this decision in the interest of efficiency of process taking account of the fact that these matters had the potential to be determinative of the appeal in its entirety. Both parties confirmed to the Court their agreement to proceed in this matter. Preliminary matter number 1 – Employment Status of the Appellant. The Act at Section 8A provides a protection for an employee against penalisation by their employer for communication, whether in writing or otherwise, by the employee to an appropriate person of his or her opinion that an offence under the Prevention of Corruption Acts 1889 to 2010 may have been or may be being committed. The Act defines the terms‘contract of employment’,‘employee’and ‘employer’ in the following terms at Section 8A(16)(d) as follows: ‘contract of employment’ means a contract of employment or of service or of apprenticeship, whether the contract is express or implied and, if express, whether it is oral or in writing; ‘employee’ means a person 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; ‘employer’, in relation to an employee, means the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment, and includes — (a) a person (other than an employee of that person) under whose control and direction an employee works, and (b) where appropriate, the successor of the employer or an associated employer of the employer; The Court, with the co-operation of the Respondent, made every effort to facilitate the Appellant, who was unrepresented, in outlining the basis upon which he could contend that he was, within the meaning of the Act, an employee of the Respondent at any material time or at all. The Appellant confirmed that he had never held a contract of employment with the Respondent and that any contract of employment he held at any material time was a contract with another legal entity. The Appellant submitted that the essence of his contention was that, in his opinion, the other legal entity was, in effect, a subsidiary of the Respondent. He confirmed that when his employment came to an end by way of redundancy on 3rd July 2013, the redundancy and relevant legal obligations were executed by the other legal entity. He also confirmed that separate litigation arising under separate employment legislation, had resulted in decisions in 2012 by the Employment Appeals Tribunal and 2013 by the Circuit Court in his favour against the other legal entity in its capacity as his employer. The Respondent submitted that it had never employed the Appellant and that the other named legal entity had never been a subsidiary company or otherwise in the ownership or control of the Respondent. It submitted that a legal representative of the Appellant in separate proceedings under separate legislation had confirmed to the Circuit Court that the Appellant had never been an employee of the Respondent. In addition, this Court had, based upon the written and oral submissions of the Appellant, decided in an earlier decision given under the Act, that he had not, within the meaning of the Act, been an employee of the Respondent. The Court was provided by the parties with submissions rather than evidence. The Court, on the basis of those written and oral submissions, can find no basis to conclude that the Respondent was, at any material time, the employer of the Appellant within the meaning of the Act. Neither can the Court conclude that the Respondent was, at any material time, in ownership or control of the named legal entity which, by the Appellant’s own submission, was the entity which employed him and with whom he had a contract of employment and which, according to the Appellant, terminated that contract in 2013 by reason of redundancy. In those circumstances, the Court cannot conclude that the Appellant held an employment relationship with the Respondent at any material time and consequently must conclude that the Appellant cannot sustain the within appeal. Preliminary matter number 2 – Application of the doctrine of Res Judicata The Court considers that, notwithstanding its conclusion that no employment relationship existed between the parties at any material time, it should address the Respondent’s contention that the within appeal and the issue of the employment status of the Appellant are the same as that previously dealt with by this Court in Determination No PCA 16/2. The dispute to which that Decision related was between the same parties under the same Act and was decided upon the issue as to whether the Appellant was at any material time an employee of the Respondent. The Court expended significant effort at its hearing to facilitate the Appellant in distinguishing any aspect of the within appeal from the matter dealt with previously by this Court on appeal. The Court was, on the basis of the Appellant’s oral and written submissions, unable to discern such a distinction. The Decision of the Court on the earlier appeal was not appealed and it therefore constitutes a final determination by a tribunal of competent jurisdiction of the issues being litigated in this case. Application of the legal doctrine of cause of action estoppel, or res judicata, means that the claim underlying the within appeal that the Appellant was at any material time an employee of the Respondent within the meaning of the Act could not, in any event, be pursued. Determination For the reasons outlined above, the Court decides that the Appellant has not made out a complaint under the Act. The decision of the Adjudication Officer is affirmed. The appeal fails.
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