FULL DETERMINATION
SECTION 44, WORKPLACE RELATIONS ACT 2015 SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2015 PARTIES: BEAUMONT HOSPITAL (REPRESENTED BY IBEC) AND MS SOMY THOMAS DIVISION:
Appeal of Adjudication Officer Decision No's: ADJ-00006549 (CA-00008926-001)
The Employee appealed the Decision of the Adjudication Officer to the Labour Court on 14 October 2019. A Labour Court hearing took place on 04 January 2024. The following is the Court's Determination:
This matter comes before the Court as an appeal by Somy Thomas (the Appellant) against a decision of an Adjudication Officer (ADJ-00006549 CA-00008926-001) given under the Employment Equality Acts, 1998 to 2021 (the Acts) concerning a complaint of discriminatory treatment on the ground of race against her former employer, Beaumont Hospital (the Respondent). The Adjudication Officer found the complaint not to be well founded. The appeal, together with two additional linked appeals (one under the Employment Equality Acts and one under the Industrial Relations Acts), was received by the Court on 14th October 2019. The original complaint was made to the Workplace Relations Commission (WRC) on 23rd December 2016 and the decision of the Adjudication Officer giving rise to the within appeal issued on 4th September 2019. It is the understanding of the Court from the written submissions of the parties to the Court, that the process of hearing of the matter by the WRC was affected by multiple postponements of scheduled hearings given at the request of one or other party. In the submission of the Appellant, the within appeal relates to events occurring in the time period between 2007 and 2016; a period of up to twelve years prior to receipt of the appeal by the Court.
Background By letter dated 13th January 2020, the Court notified the parties that the appeal under the Industrial Relations Acts would be scheduled and heard separately from the appeals under the Employment Equality Acts. The first attempt to schedule a hearing of the Industrial Relations appeal on 19th February 2020 was notified to the parties on 20th January 2020. The Appellant, through her representative solicitor, sought a postponement of that hearing by letter dated 28th January 2020 on the basis that judicial review proceedings concerning related WRC adjudication officer decisions were in being. The postponement application was refused by the Court. Confirmation of that refusal was notified to the parties by email on 5th February 2020. The Appellant’s legal representatives subsequently advised the Court by letter dated 7th February 2020 that they were no longer representing her in the appeals before the Court. The history of the numerous subsequent scheduling attempts by the Court during 2020, 2021, 2022, 2023 and 2024 to bring these matters on for hearing is set out in the table below:
Chronology of scheduled hearings
Events relating to the scheduling of a hearing on 4th January 2024 The Court convened a case management conference with the parties on 1st November 2023 to consider and address the continuing failure to achieve a hearing of the within appeal. Arising from this case management conference, the Court issued comprehensive written case management instructions to the parties on 2nd November 2023 in which the parties, having regard to the prolonged history of the matter to date, were expressly advised that it would be highly unlikely that any further request for a postponement of a scheduled hearing of the within appeal would be granted. A hearing date for the within appeal of 4th January 2024 was subsequently notified to the parties on 24th November 2023. Notwithstanding the Court’s express case management instructions, a request for postponement of that scheduled hearing was received from the Respondent on 27th November 2023. Although the Appellant’s views in relation to the Respondent’s request were sought, no contact from her was received in response. The postponement request was refused by the Chairman and the 4th January 2024 hearing date was confirmed. In confirming its decision on the postponement refusal on 11th December 2023, the Court expressly noted the comments of Cregan J. in An Bord Banistiochta Gaelscoil Moshiolog [2023] IEHC 484 in regard to the issue of delay in civil proceedings and obligations under Article 6 of the European Convention on Human Rights to ensure that rights and liabilities are determined within a reasonable time. In that decision Cregan J. stated at para. 440: 440. The delay by the Labour Court in hearing this matter and giving judgment is unacceptable to say the least, and raises serious questions as to whether the Labour Court has breached Mr. Ó Suird’s rights under Article 6 of the European Convention on Human Rights regarding the right to a fair and expeditious trial. On 20th December 2023, some two weeks prior to the scheduled hearing, the Court, in line with normal protocol, contacted the parties by email to request the names of any person(s) who would be attending the hearing along with them. No response at all was received from the Appellant. The Court sent a second email request to the Appellant on the morning of 2nd January 2024, two days prior to the hearing. No response was received from the Appellant to this request. On the afternoon of 3rd January 2024, the day before the scheduled hearing, a telephone call was received from the Appellant informing the Court that she would not be in attendance at the hearing on the following day, as she was ill. The Appellant requested that the hearing be rescheduled. No postponement application compliant with the Rules of the Court was made by the Appellant and no medical certification was submitted to support her assertion as regards her medical condition. The Appellant was advised that she was required to follow standard protocol, which she had followed on multiple previous occasions, and submit a postponement application in writing for consideration by the Chairman, along with any information/documentation, such as medical certification, supporting her application for a postponement. She was further advised that she was required, in line with normal protocols, to seek the consent of the Respondent for postponement of the hearing. In an email later that afternoon seeking a rescheduling of the hearing, and copied to the Respondent’s representative, the Appellant confirmed that she had become ill on the previous day, 2nd January 2024, two days prior to the scheduled hearing. The Appellant advised that she was awaiting a medical appointment. No further details and no medical certification were submitted. An email from the Respondent’s representative, also later that afternoon, confirmed to the Court that the Respondent did not consent to the postponement and remained available to attend the scheduled hearing. In a reply email to the Appellant, the Court confirmed that the postponement request was refused and that the hearing would proceed as scheduled on 4th January 2024. The Court noted in that communication that no medical certification had been received. The Court further noted the already incurred costs to the Court and to the parties for the scheduled hearing and pointed to its earlier written case management instructions to the parties which emphasised that further postponements of scheduled hearings of the within appeal would not be granted. In ease of the Appellant, the Court confirmed that it would, noting her apparent access to the internet and relevant technology, make facilities available for the Appellant to attend the hearing by video-link. Arrangements in the Courtroom were subsequently made for that facility and technical details were provided to the Appellant to attend the hearing via the facility. By email in the late afternoon, the Appellant confirmed that she would not be attending the hearing, whether in-person or by video-link. On the morning of 4th January 2024, the day of the scheduled hearing, at approximately 25 minutes prior to the 10.00am start of the hearing, the Court received an email from the Appellant confirming that she remained ill and would not be attending the hearing by any means. No medical certification was provided by the Appellant. The Appellant advised that she would be visiting her doctor later in the day. The Appellant followed up her email with a telephone call to the Court to confirm what she had earlier stated in her email.
The Hearing on 4th January 2024 The hearing opened shortly after 10.00am on 4th January 2024. There was no appearance in the courtroom by the Appellant in person. Additionally, the courtroom video-link was open and there was no appearance from the Appellant by video-link. The Respondent attended the hearing in person, along with its representatives and a number of witnesses. When the hearing opened, it was noted by the Chairman that the Appellant was not present to move her appeal and that no medical certification had been received by the Court to support her assertions as regards illness. It was noted that the Appellant had been in repeated e-mail and telephone communication with the Court since the afternoon prior to the morning of the hearing. It was noted that the appeal had remained outstanding in the Court for a period of over four years and related to events occurring up to 16 years prior to the date of the hearing. The Court noted the extensive history of postponements, adjournments and extended periods of unavailability of the Appellant leading to the failure on multiple occasions to achieve a hearing of the matter. The Court noted that the repeated short notice nature of requests for postponement of scheduled hearings had a severe impact on the hearing schedule of the Court at the expense of other parties awaiting access to Court time, had resulted in significant expense to the taxpayer as a result of the loss of Court time and had caused inconvenience and cost to the parties themselves. The Court noted that the High Court had in An Bord Banistiochta Gaelscoil Moshiolog [2023] IEHC 484 addressed the obligation resting upon this Court to ensure an efficient process of hearing and disposal of appeals. The Chairman confirmed at the hearing that it was open to the Court, having heard from the Respondent, to either adjourn the hearing to an alternative date on the basis of the Appellant’s non-attendance or to decide to regard the Appellant’s non-attendance as a failure to advance her appeal. The Respondent’s representative addressed the Court, advising that she had full instructions from her client. The Court was advised that the Respondent was present at the hearing prepared to defend the appeal, with representatives of hospital management and a number of witnesses, including persons no longer in the employ of the Respondent, in attendance. The Respondent placed reliance on the decision of the High Court inAn Bord Banistiochta Gaelscoil Moshiolog [2023] IEHC 484. Additionally, the Respondent placed reliance on Rule 19 of the Labour Court Rules 2022, which states: 19. Where the Appellant does not turn up for the hearing and, no satisfactory explanation is given to the Court for the failure of the Appellant to appear, the Court may determine that the appeal has not been upheld. Referring to the extensive history of postponements in this matter, the Respondent acknowledged that it had itself sought a postponement in December 2023 which was refused by the Court. The Respondent respected and accepted the Court’s decision in that regard and was now present at the hearing and ready to proceed to defend the appeal. The Respondent drew the Court’s attention to the (unreported) decision of Irvine J. of the Court of Appeal in, Leonard Gorman v The Minister for Justice, Equality and Law Reform, Ireland and the Attorney General [2015] IECA 41. Specifically, the Respondent sought that the Court balance the rights of the Appellant with the right of the Respondent to protect its good name, as alluded to in para. 30 of the decision: 30. In recent times, the constitutional imperative to bring to an end a culture of delay in litigation so as to ensure the effective administration of justice and basic fairness of procedures, has been emphasised in a number of judgments dealing with delay. The relevant constitutional provisions are contained in Article 34.1, which requires the courts to administer justice and Article 40.3.2 which guarantees the citizen the right to protect their good name. In regard to the Appellant’s non-appearance, the Respondent noted that no medical certification had been submitted to the Court by the Appellant in relation to an illness which apparently had manifested earlier in the week. The Respondent questioned the reasonableness of this position. The Respondent further noted that the Appellant is a nurse by profession, having previously been employed by the Respondent in that capacity. The Respondent requested that the matter not be adjourned any further and that the Court proceed to find that the appeal is not well founded on the basis of the Appellant’s failure to attend and move her appeal. The Court closed the appeal hearing at approximately 11.00am. The Court advised the Respondent that it would decide either to regard the hearing as adjourned or would decide the appeal and that it would communicate its decision in due course to both parties. Following the closing of the appeal hearing, the Court issued correspondence to both the Respondent and the Appellant to advise that it had decided that the hearing, which had been opened as scheduled, had not been adjourned. The parties were advised that the hearing was closed, that the Court was now engaged in its statutory deliberative process and that no further communications or submissions should be made. Shortly after 4.00pm on 4th January 2024, following the closure of the hearing earlier that morning and after the Court’s written communication to the parties that the hearing was closed and stating that no further communications should be made or submitted, the Court received a document by e-mail from the Appellant. That document emanated from a medical facility and stated as follows: “Somy is in for a visit today as she is unwell. Therefore she wasn’t able to attend court.”
Deliberation In making its determination in this case, the Court notes the following as being particularly relevant:
The Court takes particular account of the decision of Cregan J. in An Bord Banistiochta Gaelscoil Moshiolog [2023] IEHC 484, and in particular para. 440, in regard to the issue of delay in civil proceedings and obligations under Article 6 of the European Convention on Human Rights. Indeed, as noted by Irvine J. in Leonard Gorman v The Minister for Justice, Equality and Law Reform, Ireland and the Attorney General [2015] IECA 41at para. 34: 34. Similar sentiments were expressed by Hardiman J. in Gilroy v. Flynn [2005] 1 I.L.R.M. 290where at pp.293-294 he stated as follows:- “[T]he courts have become ever more conscious of the unfairness and increased possibility of injustice which attached to allowing an action which depends on witness testimony to proceed a considerable time after the cause of action accrued ….[F]ollowing such cases as McMullan v. Ireland [ECHR422 97/98 29th July 2004] and the European Convention on Human Rights Act 2003, the courts, quite independently of the action or inaction of the parties, have an obligation to ensure that rights and liabilities, civil or criminal, are determined within a reasonable time.” The Court is satisfied that, in all the circumstances, and having particular regard for the elongated history of the proceedings in this appeal, further delay in the hearing of the within appeal would be contrary to parties’ right to a “fair and expeditious trial” and to have their rights and obligations “determined within a reasonable timeframe”. The Appellant provided no satisfactory explanation in advance for her non-appearance at the scheduled hearing of the within appeal. The Court is fully satisfied that the Appellant was aware of the date, time and place of the hearing and failed to appear in person or via video-link to move her appeal. The within appeal therefore fails.
Determination For the reasons set out above, the within appeal does not succeed and the decision of the Adjudication Officer is affirmed. The Court so decides.
NOTE Enquiries concerning this Determination should be addressed to Ceola Cronin, Court Secretary. |
