FULL RECOMMENDATION
SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2015 PARTIES: DEPT OF ENTERPRISE TRADE & EMPLOYMENT (REPRESENTED BY MS. FRANCES MEEHAN S.C AND MS. CATHY SMITH S.C INSTRUCTED BY CHIEF STATE SOLICITORS OFFICE) - AND - ANDREW MCCARTHY (REPRESENTED BY AOM MANAGEMENT) DIVISION:
SUBJECT: 1.Appeal of Adjudication Officer Decision No(s). ADJ-00028096 CA-00035970-002. DETERMINATION: The Labour Court scheduled a case management conference in respect of this case to be held on the 13thMarch 2023 to address a number of issues. At the commencement of the hearing Ms Meehan SC, on behalf of the Respondent indicated that they were seeking that one of the ordinary members of the Court Mr Paul Bell, would recuse himself from the case. The Court invited Ms Meehan to make her application which she did and then invited Ms Murray to respond. Ms Murray on behalf of the Complainant indicated that they were supportive of the application. The Court then took a short break to consider same. On resumption the Court advised that they would give the parties an opportunity to make written submissions on the recusal request. The parties were asked in their written submission to address the reason for the application in circumstances where Mr Bell had never worked with the Complainant, and also requested to address the appropriateness or otherwise of ordinary members who were the Complainants colleagues up until the day his employment ended being appointed to a division to hear his complaint. The Court requested that along with any case law that the parties might wish to rely on that they also address the relevance or otherwise of the Supreme Court decision in the case ofDriscoll v Hurley and the HSE[2016] IESC 32. The Court then asked Ms Murray if she wanted to submit on the Respondent’s application for recusal or if the Complainant wanted to make a separate application for recusal. Following a short break to allow Ms Murray take instruction from the Complainant, Ms Murray informed the Court that they would be making a separate application for recusal. Both parties were advised that they could have three weeks to make their applications, a further three weeks to comment on each other’s applications and a further week for final comments arising from the other parties’ comments on their original submission. Summary of Complainant’s application, submission, and comments if any on the other party’s submission. Ms Murray on behalf of the Complainant submitted that because of his former position, as an ordinary member of the Labour Court, the procedures for appointment to such positions, and information obtained through a Freedom of Information request that the Complainant’s right to a fair and impartial hearing had been tainted by an apprehension of bias. It was her submission that an email which they became aware of on foot of a freedom of information request attributes a statement to the Chairman of the Court that they submit is harmful to the Complainants entitlement to a fair hearing, free from an underlying perception of bias. Ms Murray noted that the Chairperson of the Labour Court is the person charged with assigning any matters that come before the Court to a Division of the Court and queried whether that is purely an administrative task or whether it involves a discussion of the facts of the case which, if the Chairman was party to such a discussion, could taint the process and impact on the Complainant’s ability to have a fair hearing. In support of that submission, Ms Murray relies onR v Sussex Justices, ex parte Mc Carthy[1924] 1 KB 256 {1923] All Er Rep 233,Findlay v United Kingdom(1997) 24 EHRR andBula Ltd v Tara Mines Ltd & others(No. 6) 1 WLR 700. In conclusion, Ms Murray submitted that the email in question has in their eyes created an insurmountable difficulty for the Labour Court and it is not clear to them how this apprehension of bias can be resolved to the satisfaction of Mr Mc Carthy. Ms Murray did not respond to the Respondent’s submission of 4thApril 2023 and in letter of the 26thApril 2023 informed the Court that they would not be responding to the Respondent’s response of 19thApril 2023 to her submission of 3rdApril 2023. Summary of Respondent’s application, submission and comments if any on the other party’s submission. The Respondent submitted that they are seeking the recusal of Mr Bell as they are conscious that justice must not only be done but be seen to be done, and that they wished to avoid any grounds on which the decision could later be challenged. The grounds for seeking Mr Bell’s recusal are that the Complainant in his substantive submission makes assertions in respect of processes within the Irish Congress of Trade Unions from which three nominations emerged and were forwarded to the Minister which resulted in the ultimate appointment of Mr Bell. The Respondent accepts that in his submission the Complainant does not specifically mention Mr Bell. The Respondent believes that in circumstances where Mr Bell’s appointment arose from the process which the Complainant has criticised in his appeal, this could give rise to the possibility of potential objective bias on the part of Mr Bell which justifies his recusal from hearing the appeal. They clarified that they are not alleging that Mr Bell might be biased as against the Respondent but believe that the assertions by the Complainant if not raised now could lead to the Complainant seeking to raise the issue at a later stage. It is their submission that in those circumstances it is incumbent on the Respondent to raise the issue at the earliest possible opportunity, and it is their submission that they are entitled to make such an application. The Respondent submitted that it is entitled to participate in an appeal where the determination of the Court in that appeal will not be susceptible to challenge on grounds of objective bias. The Respondent considers that it is obliged to raise the potential difficulty which could arise in this appeal, arising from Mr Bell’s inclusion in the division assigned to hear the appeal. In support of their application for the recusal of Mr Bell the Respondent relied on the following casesGoode Concrete v CRH[2015] IESC 70,Bula Limited v Tara Mines Ltd(No.6) [2000] 4 I.R. 441, O’ Callaghan v Mahon[2008] 2 IR 514,Ryanair Limited v Terravision London Finance Limited[2022],Drury v British Broadcasting Corporation(2007 CA605),Orange Ltd. V Director of Telecoms(No.2) [2000] 4 IR 149,Corrigan v. Irish Land Commission[1977] I.R.317, In respect of the case ofO’ Driscoll v Hurley and HSE[2016] IESC 32 the Respondent submitted that particular decision had little relevance to the case to hand. Addressing the issue raised by the Court the Respondent submitted that the fact that Mr Bell had never worked with the Complainant had no relevance to the application. The Respondent went on to submit that the fact that the Complainant would have worked alongside other ordinary members of the Labour Court nominated by the Irish Congress of Trade Unions is not relevant, in that no allegation of bias is made, either actual or objective.By letter of the 19thApril 2023 the Respondent noted that the Complainant in their submission did not address the issues raised by the Court. Rather they appeared to seek the recusal of all Labour Court members on the grounds that the entire Court was not capable of providing the Complainant with a fair hearing. The Respondent submitted that these were not issues that had been raised at the case management conference on the 13thMarch 2023. Issues for the Court to determine. The Complainant has not sought for any named member of the Court to recuse themselves. The Complainant’s application appears to arise from a concern that the Chairman in assigning a division to hear the case, may engage with that division on the issue before it, which could include expressing a view that would be detrimental to the Complainant’s case. It is their submission that this could result in actual or objective bias by the division assigned to hear the case. The Respondent’s application arises from the fact that the Complainant in his submission on the substantive issue has made an assertion in respect of the process utilised by the Irish Congress of Trade Unions which ultimately lead to the appointment of Mr Bell to the Court by the Minister. The Respondent expresses concerns that if it does not raise that issue at this stage, it may be challenged at a later stage. The Court notes that this is not something that the Complainant has raised in his recusal application, nor has he availed of the opportunity to comment on the Respondent’s submission on the issue. Discussion. The Labour Court is a small organisation consisting of one Chairman, four deputy chairs, four ordinary members nominated by IBEC, and four ordinary members nominated by ICTU. All matters that come before the Court must be dealt with from within that cohort of people. The Court reviewed the relevant legislation as set out below and all the case law submitted by both parties. Section 20 (2) of the Industrial Relations Act 1946 states “The Chairman may direct that, for the consideration of a particular matter, the Court shall consist of the Chairman and two ordinary members selected by him, namely a workers’ member and an employers’ member, and, if the chairman so directs, no other member shall act as a member of the Court in respect of that matter”. Section 3 of the Industrial Relations Act 1969 in the relevant part, states “Wheneverthe chairman is of opinion that for the speedy dispatch of the business of the Court it is expedient that the Court should act by divisions, he may direct accordingly, and until he revokes his direction-
The division in this case was assigned by the Chairman in the manner set out above and the Chairman following that assignment had no interaction with the division or involvement in the case. The application for recusal submitted by the Complainant could be understood to reach wider than the members of this division. However, this division can only consider an application in respect of the members currently assigned to hear the case. The Court reviewed the caseof Findlay v United Kingdom(1997) 24 EHRR relied on by the Complainant. The Court find that there is little similarity between the role of the convening officer in a court martial in that case, who decided the charges, decided the representation for both parties, and appointed the members of the Court martial, with the role of the Chairman in the case to hand whose only role was to appoint members to the division to hear the case. On the basis that this division has had no interaction with the Chairman in respect of any aspect of this case the Court determines that this element of the Complainant’s application does not meet the test for either objective or actual bias. Ms Murray in her submission referencesR V Sussex Justices, ex parte McCarthy [1924] 1 KB 256 [1923] All ER Rep 233 and in particular the dictum of Lord Hewart CJ that “it is not merely of some importance but it is of fundamental importance that justice should not only be done but should manifestly be seen to be done” and “Nothing is to be done which creates even a suspicion that there has been an in proper interference with the course of justice”. Ms Murray submits that the email referenced above, which purports to reflect a view expressed by the Chairman of the Labour Court is sufficient to create a bias. The Court has addressed above the process as set out in legislation for the appointment of divisions of the Court to hear cases. The Chairman of the Court is not a member of the division assigned to hear the case and has not been involved with the division or in any discussions in respect of the case. The Court finds that the email being relied on is not linked to any member of the current division. Applying the reasonable person test referenced in the case law set out below, the Court finds that a reasonable person would not have an apprehension of bias based on the facts submitted by the Complainant. Ms Murray’s final submission that the Court has to resolve the apprehension of bias expressed by the Complainant to his satisfaction, is contrary to the established case law. InOwen O’Callaghan v Jude Alan Mahon[2008] 2 IR 514,it was noted that “the apprehension of the actual affected parties were not relevant.” Ms Meehan SC on behalf of the Respondent submitted that the basis for their application for Mr Bell’s recusal lies in the manner in which his nomination and appointment to the Labour Court has been expressly made an issue in this appeal by the Complainant. The Court reviewed the relevant paragraphs in the Complainant’s submission. It is not in dispute that Mr Bell is not mentioned in the Complainant’s submission, and as indicated above having had sight of the Respondent’s application the Complainant chose not to comment on same, as is his right. In his substantive submission the Complainant asserts “It is the Appellant’s belief and understanding that internal developments in one of the member unions of the Irish Congress of Trade Unions which it is understood presented a difficulty for management of that Union in respect of its internal leadership structure. As a means of resolving this internal difficulty, the Irish Congress of Trade Unions nominated an individual to the Court notwithstanding that there was no vacancy at that time because Mr Mc Carthy had a CID.” In respect of this aspect of the Complainant’s submission on the substantive issue, it is the Courts understanding that the factual matrix in respect of what occurred at the time, was that the Department of Business Enterprise and Innovation on behalf of the Minister invited the Irish Congress of Trade Unions to forward three names for consideration, which they did. The decision as to which of the three names forwarded would be appointed to the Court was a matter for the Minister. It appears that at this point what is before the Court in terms of the application for recusal is an assertion by the Complainant, not supported by either documentation or witness evidence. Therefore, the question for the Court is, whether a mere assertion is sufficient to invoke a reasonable apprehension of bias such that a member of the Court should recuse themself. InBula Limited v Tara Mines Ltd(No.6) 4 I.R. 441 the Supreme Court set down the following test for objective bias in the judgment of Denham, J.:- “whether a reasonable person in the circumstances would have a reasonable apprehension that the applicant would not have a fair hearing from an impartial judge on the issues”. That Court also went on to hold that, “a judge has a duty to sit and determine cases.” and that when considering where bias actual or objective could arise only relevant factors should be considered. It noted that an apprehension of bias is a fair procedure matter and that there must be a link between the case and the relevant factor. The only relevant factor being put before this Court is an assertion by the Complainant in respect of a process carried out by a third party, who is not a party to this case. InOrange Ltd v Director of Telecoms (N0.2)[2000]4 IR 149 the Court stated that “In the case of perceived bias, it is not allowed to stand because of the perception that the decision given or to be given in the absence of the particular factor might have been different. Nevertheless, there must be some substance in the factor before it can be taken into account. The factor in question must be such that it creates a possibility of a perception that the factor could influence the decision”. In the case before this Court there is no relationship interest or attitude, and the only factor is an assertion unsupported at this stage by either documentation or witness evidence. The Court does not accept that a mere assertion can be elevated to the standard of a factor of some substance as referenced in theOrangecase above. In the case ofOwen O’ Callaghan v Jude Alan Mahon [2008] 2 IR 514 Denham J, held “that the test to be applied in establishing objective bias was whether a reasonable hypothetical person who was not unduly sensitive and had knowledge of all the relevant facts and circumstances would have a reasonable apprehension that the decision maker would not be fair and impartial. The apprehension of the actual affected parties were not relevant.”The Respondent in their application for recusal by Mr Bell submit that “in circumstances where Mr Bell’s appointment arose from the process which Mr Mc Carthy has criticised in this appeal; this gives rise to the possibility of potential objective bias on the part of Mr Bell which justifies his recusal from hearing the appeal”. As set out above Mr Bells nomination as one of three nominees submitted by the Irish Congress of Trade Unions arose from the process that the Complainant has criticised in his substantive submission, not his appointment as an ordinary member of the Court. Mr Bell’s appointment as an ordinary member of the Court arose from the decision of the Minister to select him from the three names submitted to be the person appointed. The Respondent does not elaborate on how this could give rise to the potential of objective bias on the part of Mr Bell. The final case the Court considered wasGood Concrete v CRH[22015] IESC 70 which held that the test for apparent bias was subject to the overarching need to have a properly functioning system of justice ensuring finality in the resolution of the dispute. It confirmed that the test applied in the Irish jurisdiction is fundamentally consistent with the approach in the Bangalore Principals of Judicial Conduct 2002. The Court in considering the submissions, and the caselaw opened to it finds that an objective bystander informed of all the relevant facts would not be concerned that any member of the division as currently constituted, would be incapable of an objective, and impartial hearing of the substantive case. Having considered all of the above, the Court both individually, and collectively, do not believe that facts or circumstances of such import as to require one or all of the members of the division to recuse themselves have been established. The division of the Court as currently established will now move to reschedule the case management conference in advance of hearing the substantive case. The Court so determines.
NOTE Enquiries concerning this Determination should be addressed to Therese Hickey, Court Secretary. |
