UDD2350

Appeal of Adjudication Officer Decision No's: ADJ-00045913 (CA-00056788-001)

BACKGROUND:

The Worker appealed the Decision of the Adjudication Officerto the Labour Court on 9 September 2020 in accordance with Section 8A of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 12 December 2023. The following is the Decision of the Court:

DECISION:

This is an appeal by Mr Mc Kenna (hereafter the Complainant) against an Adjudication Officer’s Decision ADJ-00020512 given under the Unfair Dismissals Act 1977 to 2015 (the Act) in a claim that he was unfairly dismissed by his former employer Jinny Software Limited (hereafter the Respondent).  The Adjudication Officer upheld the complaint of unfair dismissal and awarded compensation of €12,000. The Complainant indicated that he was not appealing the fact that the dismissal was unfair but felt that the Adjudication officer should have found that the dismissal arose from his protected disclosures and not from redundancy as submitted by the Respondent.

Background

The Complainant’s appeal was scheduled to be heard on 24th October 2023.  By email of the 28th August 2023, the Complainant sought an adjournment on the basis that he had a Data Protection case before the Circuit Court and he believed that his case before the Labour Court should be adjourned pending the outcome of same.  The Court responded on the 29th August 2023 advising that in order for a postponement request to be considered by the Chairman the consent of the other party should be sought. The Complainant responded on the same day stating that he did not think that the consent of the other party should be required. By email of the 30th August the Court responded advising that in order to consider the application the Court needed to have the views of the other party.

 By email of 5th September, the Complainant advised that he had sought the consent of the other party. By email of the 7th September, the Complainant forwarded the Respondents response whereby they did not agree to the hearing being postponed on the basis the issues were not linked. The Complainant in his email set out a number of bullet points as to why he believed the issues were linked. By email of the 7th September 2023, the Complainant was advised that his application for a postponement was refused and that the hearing would proceed as scheduled.

 By email of 19th October the Respondent confirmed that they had sent their submission to the Complainant and attached two single page witness statements. Attached to the witness statements wasa copy of the company accounts. By email of the 19th October 2023, the Complainant raised concerns about only receiving the witness statements that day, and querying whether the statements accorded with the Labour Court rules and requesting that the Court revisit its decision not to grant a postponement.

 By email of 20th October 2023, the Court replied advising that as the witness statements were two single pages and the attachment had formed part of the original submission from the Respondent the Court did not see a need to revisit its decision not to grant an adjournment.

 The Complainant sent a further three emails on the 20th October 2023 seeking that he be granted a postponement. The Court responded on the 20th October advising that the Chairman had reviewed the papers and that his application for a postponement had been refused, but that it was open to him to raise any issues at the commencement of the hearing, and confirming that the hearing would proceed as scheduled on Tuesday 24th October at 10am. The Respondent was copied in on the correspondence and wrote to the Court on the same date to advise that the witness statements had originally be submitted on 26th August 2022 and that excerpts from the financial report were included in the Complainants submission, so he was not a stranger to that report.  

 On the 24th October 2023, the Complainant made an in person application for an adjournment on a number of grounds including that he had only recently received the witness statements and that attached to one of the statements was a fifty page detailed financial report, and the fact that he had a Circuit Court hearing pending in respect of Data Protection issues.

 Ms Mallon BL on behalf of the Respondent opposed the applications on the basis that the Data Protection matter was a completely separate issue, and that the financial reports had been submitted with the original submission in August 2021. It was her submission that the Respondent would be prejudiced by any further delay.  In an engagement between the Court and the parties on the day, it transpired that the Respondent had not sent a copy of the original submission in August 2021 containing the financial statement, to the Complainant. It had only been submitted to the Court. The Court took a short break to consider the applications for adjournment.

 The Court decided that as it had no jurisdiction under the Data Protection Act the fact that a case was being run in the Circuit Court under that Act, would not prevent the Court from proceeding with the Unfair Dismissal Acts appeal. However, in terms of the second issues as it had now been established that the Complainant had in fact only received the financial reports the previous week and taking into account the fact that he was a lay litigant the Court granted an adjournment.

 The Court took the opportunity while it had the parties present to carry out case management.  With the agreement of the parties the Court in that process, set a new date for the hearing of the case of 11th December 2023. The Court noted that the Complainant wished to make additional submissions and set a deadline of 14th November 2023 for the making of those submissions. The Court also requested that the Complainant set out the quantum of loss being claimed, and the period in respect of which the losses were claimed.

In addition, as the Complainant’s submission contained some submissions in respect of issues not properly before the Court i.e. Data Protection and Health and Safety issues, the Court requested that the Complainant set out a brief summary in respect of each of his protected disclosures and that he identify the relevant appendices linked to each complaint.  The Court indicated that as the hearing had been adjourned and not opened the composition of the division on the next day may be different to that which had carried out the case management.

The Court also informed the Complainant that at the hearing of the substantive issue he could proceed by way of submission or sworn evidence. The Court explained how it operated in situations where a lay litigant wanted to give sworn evidence and indicated that the Complainant should let the Court know how he wished to proceed. The Court by email of 27th October 2023 confirmed to both parties what had been agreed at the case management conference.

 The Complainant sent emails on 7th 8th and 9th of   November 2023 raising issues about a possible change to the composition of the Division and querying whether or not that was in compliance with the legislation. He requested clarification as to whether or not there would be changes to the Division.  By email of 8th November, he was advised that there would be a change to the composition of the Division.

The Complainant on 10th November 2023, wrote to the Chairman of the Court about that email objecting to the fact that:

1. a) the original appeal hearing was turned into case management,
2. b) that a date for a new hearing was set at the case management and a notification issued but it was not mentioned in the email of 27th October 2023,
3. c) highlighting what he believed to be a number of violations of Labour Court rules by the Division on the 24th October 2023,
4. d) alleging that the Court had exhibited illegal, unfair and biased behaviour.
5. e) objecting to the fact that at the case management the Chair had informed him of the option of proceeding by way of submission or sworn evidence but would not provide any further information on the impacts or consequences of his making such a decision.

The Complainant indicated that he was revoking his agreement to the new date for hearing and “anything else which may have been inferred from that meeting”. He indicated he would not be complying with the deadline for additional submissions and sought confirmation that the hearing date of 11th December was void.

On the 15th November 2023, the Court registrar responded to his emails of 7, 8, 9 and 10th of November 2023, advising that as an ordinary member of the original Division would not be available for the foreseeable future, another ordinary member would replace him. The registrar confirmed that as only case management had occurred on the 24th October 2023, there was no requirement for the same division to hear the substantive issue. The Court Registrar also addressed the issues he had raised in respect of noncompliance with the Labour Court rules.

The deadline for making his submissions was extended by a week to the 21st November 2023, and it was confirmed that the hearing date of 11th December 2023 still stood and would not be vacated. The Complainant was also advised that any other issues/concerns he had regarding the process could be raised with the Division on the 11th of December 2023, and that in the interest of transparency a copy of his emails to the Court and the Court’s responses would be sent to the Respondent.

 By email of the 16th November, the Complainant disputed the Registrars interpretation of the Labour Court rules, and argued that the facilitation by the Court of his request to make an additional submission was contrary to said rules. The Complainant again requested that all issues he had raised be resolved before he was required to make his submissions, or the hearing proceeded.  By return email the Court Registrar advised that any queries he had could be raised at the commencement of the hearing on the 11th December, and that the Court would not be responding any further on these matters.

By email of 20th November 2023, the Complainant advised the Court that he was going to write to the Minister of Enterprise Trade and Employment and go the High Court to injunct the Court to prevent the hearing proceeding on the 11th December 2023.  The Complainant’s submission was not received in line with the extended deadline of 21st November 2023.

By email of 24th November the Complainant sought confirmation from the Court secretariat that his email of 20th November 2023 was received, and on the same day under separate cover wrote to the Chairman of the Court. In his email to the Chairman, he sought confirmation that he was addressing the Chairman Mr Foley.  He again stated that the case management hearing did not correspond or meet the standards set out in the Labour Court mission statement, and that the Division had breached Labour Court rules, and were party to falsehoods, bias and conflicts. He attached thirty-three pages of emails relating to the case management of the 24th October 2023, and confirmed his intention to contact the Minister and injunct the Court.

By email of the 27th November, the Registrar responded on behalf of the Chairman advising that the matter had been assigned to a division and that therefore, in accordance with the statute the Chairman no longer had any statutory function in respect of his appeal.  The Registrar cited the relevant sections of the legislation and advised that any matters of concern could be raised by the Complainant at the hearing scheduled for 11th December 2023.

By email of the 28th November 2023, the Complainant stated that his emails to info@labourcourt.ie were blocked for the past one or two weeks.   He requested information on when his emails of the 20th and 24th November 2023 were received, as he had not received an auto reply for those emails but had for other emails. He demanded that an investigation be carried out into why his emails had been blocked and who had authorised same. By return email the Court confirmed receipt of his emails of 20th, 24th and 28th November 2023.  In a further email of 28th November 2023, the Complainant requested that the Court investigate when they received his emails of 20th and 24th. 

On the 29th November 2023, the Complainant submitted a three page email setting out what he believed to be a major conflict and breach of Labour Court Rules in relation to the case management held on the 24th October and the hearing scheduled for the 11th December 2023.

He informed the Court that he was delaying contacting the Minister’s office and seeking an Injunction and requested that his emails not be dealt with by the Court but by Labour Court admin. In his conclusion he stated that the hearing planned for the 11th December 2023 was invalid, and must be immediately voided, and that all issues must be resolved before his case could continue. He concluded by stating

 “these falsehoods are extremely troubling and not in accordance with the Labour Court Mission or Charter natural justice or any reasonable standard of fairness. These and all other issues must be fully investigated and resolved before my case can continue”

By email of 30th November 2023, the Court acknowledged receipt of that email. On the 5th December 2023, the Complainant emailed seeking a response to his earlier emails of 29th November 2023 and 30th November 2023. The Court responded by email of 7th December 2023 advising that as per letter of 16th November, the Court would not be responding to emails on these issues, but it was open to him to raise the issues at the hearing on the 11th December 2023. 

 On the 8th December, the Complainant emailed again advising that the emails were for Labour Court admin and not the Labour Court. This email was followed by a phone call to the Court Secretary. The Court issued a response advising that the multiple emails he had submitted would be addressed at the start of the hearing on Monday 11 December 2023.

On the 11th December 2023 the Complainant sent an email to the Court Secretary at 8.09 am stating “Unfortunately, I am unable to attend the hearing today as I am sick“.  At 9.12am the Court Secretary responded to the Complainant advising that in order for the hearing to be postponed a medical certificate from a doctor would have to be provided. The Complainant was also fully aware that the hearing was a hybrid hearing and that he could have sought to join the hearing remotely.

No request to attend remotely or medical certificate were received by the Court in advance of the commencement of the hearing at 10.00am. The Respondent, their legal representative, and their witnesses (remotely) were in attendance and ready to proceed at the commencement of the hearing. The hearing commenced at 10.05am. As the Complainant was not present to move his appeal, the appeal fell.

 In coming to the decision to proceed with the hearing the Court took into account the following,

1) the multiple correspondences with the Complainant in the period between the case management on the 24th October 2023 and the hearing date of 11th December 2023 wherein he sought unsuccessfully to have the hearing date vacated.

2) the fact that the original adjournment of the earlier hearing was granted at his request,

3) that the hearing date of the 11th December was agreed by all parties at case management   on the 24th October 2023

4) the Complainant at the case management hearing, had requested that he be facilitated to make an additional submission and it was agreed that he could do so. However, no additional submission was received within the agreed deadline, the extended deadline, or at all.

5), that the Complainant had provided no details of his illness on the date of the hearing nor provided supporting medical certification in advance of the commencement of the hearing.

6) the Complainant could have requested to attend the hearing remotely even if only to seek an adjournment on the basis that he was sick.

7) That the Complainant had continuously sought to have the hearing date of the 11th December vacated despite having agreed to that date.

8)   that the requirement for fairness and equity must apply to both parties.

 To this end the Court considered the following obiter comments from Barrett J in David Mc Cormack and Ashford Castle Hotel Ltd [2022] IEHC 188 at paragraph 17.

“Mr Lawless touches on an important point in this regard. Courts too have a tendency to be more lenient with self-represented litigants than other litigants. However, a question does arise as to whether such systemic indulgence is always entirely fair to the parties who are not shown such indulgence. Justice has to be done in an even-handed manner; certainly, the extension of any indulgence in any one case has to be carefully weighed by a court, or other decision-making body minded to extend such indulgence, against any time and /or financial and /or costs that it raises for the other side in proceedings, not least in ensuring that proceedings are brought to a conclusion in as timely a manner as justice allows”.

The Court having considered all of the above did not believe that justice would be served by postponing the hearing. The Court decided to proceed with the hearing as scheduled. The Complainant was not present to move his appeal therefore the appeal falls.

Determination.

 The Complainant was not present to move his appeal. The Complainant’s appeal fails. The decision of the Adjudication Officer is upheld.

The Court so determines.     

	Signed on behalf of the Labour Court
	Louise O'Donnell
CDK	______________________
12 December 2023	Deputy Chairman