HSD226

1.Appeal of Adjudication Officer Decision No(s) ADJ-00017993 CA-00023195-001.

BACKGROUND:

2.The Claimant appealed the Decision of the Adjudication Officer ADJ-00017993 to the Labour Court on 9th September 2019, in accordance with Section 29(1) of the Safety, Health and Welfare at Work Acts, 2005 to 2014. A Labour Court hearing took place in a virtual setting on 11 January 2022. The following is the Determination of the Court:-




DETERMINATION:

This matter before the Court is an appeal by Brendan Dolan (the Appellant) of a decision of an Adjudication Officer (ADJ-00017993 CA-00023195-001) made under the Safety, Health & Welfare at Work Act, 2005 (the Act) against his employer the HSE (the Respondent). This appeal is linked toADJ-00017993 CA-00023195-002.

The Adjudication Officer in a decision dated 1 August 2019 set out as follows:-

• Decision:
  • Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
    
    Having considered the submissions of both parties, and the evidence adduced at the hearing of this complaint, and based on the findings set out above in relation to the preliminary issue of time limits, as raised by the Respondent, I find that the Complainant's complaints are out of time and, as a result, I have no jurisdiction to investigate the herein complaints.

Background

The Court raised the issue of its jurisdiction to hear the appeal and whether the decision of the Adjudication Officer was a decision capable of appeal to the Court under Section 44 of the Workplace Relations Act 2015. On the basis that the Court’s decision on whether the matter was properly before the Court had the potential to dispose of the matter in its entirety, it decided to deal with this matter as a preliminary issue. Both parties made supplementary submissions following the hearing.

Position of the Appellant

The Appellant submits that the matter on appeal is properly before the Labour Court. The WRC Adjudicator expressly states that she is making a decision in accordance with the relevant redress provision. The Adjudicator’s Report entitled “Adjudication Officer Decision” commences with the statement:

• • “In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints”.

• • “Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
    
    Having considered the submissions of both parties, and the evidence adduced at the hearing of this complaint, and based on the findings set out above in relation to the preliminary issue of time limits, as raised by the Respondent, I find that the Complainant's complaints are out of time and, as a result, I have no jurisdiction to investigate the herein complaints”.

The WRC Adjudicator states “I must now decide if the contraventions as alleged by the Complainant were ongoing during the cognisable period. The WRC Adjudicator made findings in respect of the claim, having heard evidence over the course of a full day hearing from three witnesses, who were subject to examination and cross-examinations. The WRC Adjudicator made a decision as a result of these findings and held that the actions of the employer did not amount to penalisation. It is submitted that this clearly amounts to a finding in respect of whether the Appellant’s claim is well founded and is a decision for the purposes of Section 41(5).

The Appellant disagrees with the Respondent’s assertion that the Adjudicator’s decision in this case was made under Section 41(6) of the 2015 Act. It submits that the decision was made in accordance with Section 41(5) in accordance with the relevant redress provision.

The Appellant submits that the WRC Adjudicator did not base her decision on any general power to dismiss, as was the case in Karen Walsh v Dunnes Stores [TED 1923]. In that case the claimant had not pursued her claim at the WRC at all or engaged in the hearing. In the instant case, the WRC Adjudicator heard a full day of evidence and based her decision on her assessment of that evidence.

The WRC Adjudicator held and set out in her decision that “acts” which are accepted by both parties to have occurred within 6 months of the referral, are not matters which amounted to penalisation under the Safety, Health & Welfare at Work Act, 2005. It is submitted that this finding is a finding on the merits of the case regarding whether the Appellant’s claim is well-founded and therefore is a matter which is appealable to this Court.

Without prejudice to the foregoing, the Appellant submits that the 2005 Act outlines clear provisions for an appeal of a decision of an Adjudicator in cases alleging a contravention of section 27 of the 2005 Act. The Appellant submits that no reading of that Schedule allows for an interpretation that a decision in respect of whether an allegation is out of time is not appealable to the Labour Court.

Position of the Respondent

The jurisdiction of the Labour Court to hear an appeal arises in relation to “a decision of an adjudication officer” in proceedings under Section 41 of the 2015 Act. Section 41(5)(a)(iii) sets out the scope of the power conferred upon an Adjudication Officer in coming to a decision on a complaint, where its states that an Adjudication Officer shall :-

• • “make a decision in relation to the complaint or dispute in accordance with the relevant redress provision”.

• • “(a) declare that the complaint was or, as the case may be, was not well founded,
    (b) require the employer to take a specified course of action,
    (c) require the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all the circumstances...”

• • “…the Act at section 7 does not give an Adjudication Officer an explicit power to dismiss a claim for redress made under the Act. The power of an Adjudication Officer is, on plain reading of the statute, confined to a power to afford redress as set out at Section 7(2) of the Act or to declare that the complaint was not well founded.”

• • 
    “...the Adjudication Officer made a decision to dismiss the within claim and that decision was not within the jurisdiction conferred upon the Adjudication Officer by the Act of 2015 at Section 41 and in accordance with the Act at Section 7 and that consequently no decision has been made by the Adjudication Officer in accordance with the Act of 2015 at Section 41. The Court therefore has no jurisdiction to hear an appeal of the decision made on 31st July 2017.”

The Respondent submits that the facts in Walsh are dissimilar to the within appeal but submits the same legal issue arises. It submits that if the Labour Court accepts that the decision made by the Adjudication Officer was not a decision made in accordance with the “relevant redress provisions” of the Act, then the consequence would appear to be that it has no jurisdiction to hear the within appeal.

The Respondent submits that the decision as made by the Adjudication Officer does not appear to be one which is made “in accordance with the relevant redress provision” as required under Section 41(5)(a)(iii). It is only such decisions which are made in accordance with Section 41(5)(a)(iii) which may be appealed.

Relevant law

The preliminary matter for determination by the Labour Court relates to the wording of a decision made by the Adjudication Officer at first instance and whether that decision is capable of appeal to this Court. The relevant law for consideration is set out at Sections 41 and 44 of the Workplace Relations Act 2015 and Sections 28 and 29 of the Safety, Health & Welfare at Work Act, 2005.

An appeal to the Labour Court from a decision of Adjudication Officer is provided at Section 44 of the Workplace Relations Act, 2015, as follows:

• • 44(1)(a) A party to proceedings undersection 41may appeal a decision of an adjudication officer given in those proceedings 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 in accordance with the relevant redress provision, and

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

• • An adjudication officer to whom a complaint or dispute is referred under this section shall—

    (i) inquire into the complaint or dispute,

    (ii) give the parties to the complaint or dispute an opportunity to—

    (I) be heard by the adjudication officer, and

    (II) present to the adjudication officer any evidence relevant to the complaint or dispute,

    (iii) make a decision in relation to the complaint or dispute in accordance with the relevant redress provision, and

    (iv) give the parties to the complaint or dispute a copy of that decision in writing.

Section 28 of the Safety, Health & Welfare at Work Act, 2005 provides redress for contraventions of Section 27 of that Act as follows:

• • “1. A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of section 12(1) shall do one or more of the following, namely —

    (a) declare that the complaint was or, as the case may be, was not well founded,

    (b) require the employer to take a specified course of action,

    (c) require the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all the circumstances, but not exceeding 260 weeks ’ remuneration in respect of the employee ’ s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977. “

• • “A decision of the Labour Court under section 44 of the Workplace Relations Act 2015, on appeal from a decision of an Adjudication Officer referred to in Section 28, shall affirm, vary, or set aside the decision of the Adjudication Officer”.

Section 41(6) provides as follows:

• • Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

The Labour Court’s jurisdiction to hear an appeal of a decision of an Adjudication Officer derives from Section 44(1) of the 2015 Act which provides 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 that appeal.

The preliminary issue for the Court to decide in this appeal is whether the decision made by the Adjudication Officer is capable of appeal to this Court. That question turns on whether the Adjudication Officer made a decision under Section 41 the 2015 Act.

The first matter considered by the Adjudication Officer at first instance was a preliminary matter relating to her jurisdiction to hear a complaint, having regard to the time limits for submitting claims, set out at Section 41(6) of the Workplace Relations Act 2015. Section 41(6) provides that:

• • “Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.”

• • “…I find that the Complainant's complaints are out of time and, as a result, I have no jurisdiction to investigate the herein complaints”.

The Appellant submits that the Adjudication Officer made a decision under Section 41(5), rather than Section 41(6) of the Act. The Adjudication Officer made findings having heard from three witnesses, who were subject to examination and cross-examinations, and then made a decision as a result of these findings that the actions of the employer did not amount to penalisation. The Appellant submits that the Adjudication Officer fulfilled requirements under Section 41(5)(i) and (ii) to conduct an inquiry into a complaint and gave parties an opportunity to be heard and to present relevant evidence. The Adjudication Officer made findings and came to a decision about the merits of that complaint.

The Court notes that the Adjudication Officer does not expressly state whether the decision made was made in accordance with either Section 41(5) or Section 41(6) of the 2015 Act. However, it is clear that in making that decision the Adjudication Officer was fulfilling obligations set out at Section 41(6) of the Act that an Adjudication Officer, subject to subsection (8), “shall not entertain a complaint” where a contravention occurs outside the six-month time limit set down in the Act.

In recording that decision, the Adjudication Officer solely addressed the preliminary matter of time limits and did not invoke the relevant redress provisions specified under the 2005 Act by expressly citing one of the three outcomes listed under Section 41(5).

The Court must decide whether this decision is capable of appeal to this Court.

The jurisdiction of the Labour Court in this case is clearly set out at Section 44(1)(a) of the 2015 Act which a provides that a party to proceedings under Section 41 may appeal a ‘decision’ of an Adjudication Officer to the Labour Court. Section 44 does not expressly state that such a decision must be confined to one made in accordance with Section 41(5) of the 2015 Act. Section 44(1)(a) simply refers to proceedings under Section 41.

The Supreme Court considered the question of whether a determination from the High Court constituted a ‘decision’ capable of appeal to the Supreme Court in the case of Dublin Wellwoman Centre Ltd, Rita Burtenshaw and Caroline McCamley v Ireland, the Attorney General and the Society for the Protection of Unborn Children (Ireland) Ltd 1994 No. 308.

That case related to an order of the High Court which recited that an application made to the High Court judge to discharge herself had been refused. In considering whether or not a decision was made Denham, J, noted the following:

• • “The ordinary meaning of the word ‘decision’ is defined in the Oxford English Dictionary as:
    
    The action of deciding (a contest, controversy, question, etc.), settlement, determination.
    
    The legal meaning of the word ‘decision’ in Article 34.4.30 was considered by theSupreme Court in Society for the Protection of Unborn Children (Ireland) Ltd v. Grogan [1989] IR 753; [1990] ILRM 350where Finlay CJ stated at pp. 763/354–5:
    

    No mere absence of formal words from a High Court order could be permitted to remove from the appellate jurisdiction of this Court a determination of a High Court judge which affects one of the parties involved and has all the characteristics of a decision.”

• • “In this case there were formal words — the order and a reserved judgment. There was a determination by a High Court judge of an issue. The determination affected the interest of one of the parties. Carroll J in refusing to discharge herself from the case between the parties on the basis that there was no bias made a decision, against the application of one party, on constitutional justice. The issue of bias goes to the root of constitutional justice — to the constitutional right to a fair and impartial hearing. The issue is one to be determined in accordance with Irish law and the Constitution.
    
    The determination had all the characteristics of a decision. The preliminary issue had been raised before the High Court, arguments were submitted on behalf of opposing parties, the law and the Constitution were referred to, the judge reserved her decision, and then delivered a written judgment in which she gave her determination and the reasons therefor. Thereafter a High Court order on the issue, and regulating the appeal, was drawn up.
    
    The fact that it is an issue preliminary to a trial does not divest it of the status of a ‘decision’ under Article 34.4.30. Preliminary matters, such as for example a request for an adjournment, are not infrequently appealed to this Court. It has been the practice of this Court, quite rightly in my view, to treat such as a decision from which an appeal may lie. Such a decision is analogous to the decision in this case.
    
    It is appropriate that the issue be tried now rather than after a full hearing of the substantive action in the High Court. It is a decision on an interlocutory matter in the course of an action.
    
    I am satisfied that in substance and in form, the judgment and order of the High Court in this case are a ‘decision’ pursuant to Article 34.4.30 of the Constitution. Consequently an appeal lies therefrom to the Supreme Court.”

The Adjudication Officer’s finding that “acts” that occurred within six months of the referral of the complaint to the WRC are not matters which amount to penalisation under the Safety, Health & Welfare at Work Act, 2005 clearly is a finding affecting the interest of one of the parties.

In this regard, the within appeal differs from the case of Walsh TED1923, where the Complainant did not proceed with her complaint at first instance and where no enquiry into the complaint or findings of fact took place at all.

In the Court’s view, a finding made by an Adjudication Officer that a complaint made under an employment statute is out of time, having conducted a full enquiry into whether or not certain “acts” amount to penalisation, is a decision capable of appeal to the Labour Court.

The Court notes that it is not a mandatory requirement that a decision made in accordance with Section 41 must include a declaration that a complaint is “well founded” or “not well founded” in order for that decision to be capable of appeal to the Labour Court. The Adjudication Officer in this case did not expressly declare in her decision that the complaint was “not well founded”. Clearly, an express statement on whether the within complaint was well founded or not would have avoided any ambiguity on the matter.

For the reasons outlined above, the Court finds that the decision made by the Adjudication Officer under section 41 of the Workplace Relations Act, 2015, in relation to the within matter, is capable of appeal to the Labour Court.

	Signed on behalf of the Labour Court
	Katie Connolly
TH	______________________
15 September 2022	Deputy Chairman