CPD231

1.Appeal Of Adjudication Officer Decision No. ADJ-00018085 CA-00023304-002

BACKGROUND:

2.The Employer appealed the Adjudication Officer’s Recommendation to the Labour Court on 20 September 2022 in accordance withSection 44 of the Workplace Relations Act 2015, Consumer Protection Acts, 2007 and 2014.

On 10 August 2022 the Adjudication Officer issued the following Recommendation:-

“The complaint of discrimination fails.

The complaint of penalisation is well founded. I direct the Respondent to ensure that all future

applications for teaching positions by the Complainant are given full consideration. I award

compensation of €43,425.00 to be paid by the Respondent to the Complainant.”

A Labour Court hearing took place on 02 June 2023.

DETERMINATION:

This matter comes before the Court as an appeal by Dublin Dun Laoghaire Education and Training Board (the Respondent) of a decision of an Adjudication Officer in a complaint made by Leonard Skelly (the Complainant) under the Consumer Protection Act, 2007 (the Act). The Adjudication Officer decided that the complaint was well founded and awarded the Complainant a sum of €43,425.

The hearing

The Complainant was unrepresented at the hearing of the Court. The Court made extensive efforts to ensure that both parties had a clear understanding of the statutory provisions giving the Court jurisdiction in the within appeal. The Court also made extensive efforts to ensure that both parties understood that the Court, as a creature of statute, is confined in its jurisdiction under the Act to the jurisdiction conferred upon it by the Ac t itself.

The Respondent had submitted that the within appeal was outside the jurisdiction of the Court in that no complaint of penalisation by the employer as a reaction to a communication by the worker with the National Consumer Agency was before the Court. This was so, in the submission of the employer, because the Complainant did not contend that he had ever made a communication with the National Consumer Agency.

In the interest of ensuring that the Complainant, who was unrepresented, understood the relevant statutory provisions in this respect the Court set out that Section 87(3) of the Act makes provision as follows:

• 87(3) An employer shall not penalise an employee for having formed an opinion of the kind referred to in subsection (1) and communicated it, whether in writing or otherwise, to the Agency if the employee has acted reasonably in forming that opinion and communicating it to the Agency.

“Agency” means the National Consumer Agency established by section 7;

And that Section 2 of Schedule 6 of the Act makes provision as follows:

• 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 87(3) 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, or

  • (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 of the circumstances.

• 3A. 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 paragraph 2 shall affirm, vary or set aside the decision of the adjudication officer.

The Complainant, when asked to address the matter by the Court, confirmed that he had at no time had a communication with the National Consumer Agency.

The Court proposed to the parties that it would consider as a preliminary matter the issue of its jurisdiction in the within appeal and would issue a decision in that respect before hearing from the parties on the substantive matter. The Court explained that a decision in the matter which found that the Court had no jurisdiction to proceed would conclude the matter; whereas a decision that the Court had such jurisdiction would lead to a hearing of the substantive matter on another date.

Both parties confirmed their agreement to this approach.

The preliminary matter

Section 87 of the Act states as follows:

• (1) A person who, apart from this section, would be so liable shall not be liable in damages in respect of the communication, whether in writing or otherwise, by the person to the Agency of the person’s opinion that—
  • (a) an offence under any of the relevant statutory provisions has been or is being committed, or

    (b) any of the relevant provisions that prohibits a person from doing a particular thing or things has not been or is not being complied with,

  unless it is proved that the person has not acted reasonably and in good faith in forming that opinion and communicating it to the Agency.

  (2) The reference in subsection (1) to liability in damages shall be construed as including a reference to liability to be the subject of an order providing for any other form of relief.

  (3) An employer shall not penalise an employee for having formed an opinion of the kind referred to in subsection (1) and communicated it, whether in writing or otherwise, to the Agency if the employee has acted reasonably in forming that opinion and communicating it to the Agency.

“Agency” means the National Consumer Agency established by section 7;

Schedule 6 of the Acts in relevant part deals with redress for contravention of section 87 as follows:

• 2. 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 87(3) 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, or

  • (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 of the circumstances.
  3A. 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 paragraph 2 shall affirm, vary or set aside the decision of the adjudication officer.
  
  

Discussion and conclusion

The Complainant told the Court that he had no communication in writing or otherwise with the National Consumer Agency about matters giving rise to his complaint or at all.

On that basis the Court concludes that Complainant, because he has not committed an act protected by the Act at Section 87, has not satisfied a condition precedent to his enjoyment of the protection of the Act. The within appeal therefore must, by operation of the law, succeed.

Decision

The Court decides that the Complainant’s complaint under the Acts is not well founded and therefore fails. Accordingly, the within appeal succeeds and the decision of the Adjudication Officer is set aside.

The Court so decides.

	Signed on behalf of the Labour Court
	Kevin Foley
AR	______________________
12 June 2023	Chairman