PDD251

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00039610 (CA-00051243-004)

BACKGROUND:

The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 12 November 2023. A Labour Court hearing took place on 10 January 2025. The following is the Decision of the Court.

DECISION:

This is an appeal by Michael Gavagan (the Appellant) against a decision of an Adjudication Officer given under the Protected Disclosures Acts, 2014 - against Xerox (Europe) Limited (the Respondent). 

The complaint was made to the Workplace Relations Commission (WRC) on 18 July 2023. The Adjudication Officer found that the complaint was statute barred.

An appeal of that decision was received by the Court on 12 November 2023.

This Decision is linked to a related complaint under the Employment Equality Acts, 1998 to 2021 [EDA2513]. Both appeals were scheduled to be heard together.

Background

A hearing scheduled for 14 August 2024 was adjourned on the day as, due to an administrative error, the Respondent’s representative had failed to share their submission with the Appellant in good time.

On 27 November 2024 the parties were notified that the matter was relisted for hearing on 10 January 2025.

On 31 December 2024, the Appellant submitted a request to postpone the re-scheduled hearing on the basis that another statutory body had commenced an investigation into certain complaints made by him and he had received legal advice that he should request a deferment of the Labour Court hearing until such time as that investigation had concluded and a determination made into those complaints.

The request for a postponement was refused by the Court. The Appellant was informed that, based on the information provided by him, it was not appropriate to postpone a scheduled hearing of the Labour Court because of the apparent existence of a separate statutory process being undertaken by another statutory body. The Court confirmed that the hearing would proceed on 10 January 2025 as notified to the parties and that the Appellant could raise any matters of concern in relation to the Court’s statutory functions at the hearing where the Court could hear from both parties in relation to that matter.

The following week, on 8 January 2025 (at 19:59), the Appellant wrote to the Court by email as follows:

“I am in hospital since Saturday with flu and now pneumonia. Very sudden onset Have been unable to attend to matters. Family at home got it too. Will be unable to attend or nominate a rep just now.  Apologies to all for this. Best wishes

Michael gavagan.

You might please acknowledge

Will be unable” (sic).

The Court Secretary replied by email to the Appellant at 10:08 that day noting that he was unwell and unable to attend the scheduled hearing. The Court Secretary further stated as follows:

“Please clarify if you are seeking a postponement of tomorrow’s hearing. 

You will be aware from last week’s correspondence that the Court requires the consent/position of the other side in writing for such applications. The Court also normally requires some form of medical evidence where an application for a postponement is made on medical grounds.

I await your response.”

No reply from the Appellant was received by the Court to that correspondence.

On the afternoon of 9 January 2025, the Court was copied on an email exchange between the parties in which the Appellant notified the Respondent’s legal representative that he was unable to attend the hearing the following day as he was unwell and in hospital. He further stated that he had made his position “vis a vis a postponement crystal clear since your offences against my data rights were discovered”. 

The Respondent’s legal representative replied noting that the Appellant was unwell and that the Labour Court had sought medical evidence to support his application for a postponement.

Towards close of business on 9 January 2025 (at 17:11), the Court emailed the Appellant, copying the other side, as follows:

“Dear Mr Gavagan,

The Labour Court has been copied on correspondence from Mason Hayes and Curran to you in reply to an email sent by you at 15.41 today.

As we have not received a reply from our email to you at 10.08 today, please can you confirm if (i) you are seeking a postponement of tomorrow’s hearing on medical grounds and (ii) if you will be submitting any medical evidence to support that application.

As previously advised, the Chairman has already decided, on the basis of the information provided by the applicant, that it is not appropriate to postpone a scheduled hearing of the Labour Court because of the apparent existence of what is outlined as a separate statutory process being undertaken by another statutory body.

As it stands, the hearing remains scheduled for hearing tomorrow, 10th January 2025, as previously notified to the parties.”

The Appellant did not reply to that correspondence.

The hearing 10 January 2025

The hearing of the appeal opened at 10:00 am, as scheduled. The Respondent’s legal representative was in attendance with a representative from the Respondent company. There was no appearance by the Appellant, or anybody acting on his behalf, at the hearing.

The Court noted that where an Appellant does not attend a hearing to move their appeal it was open to it, 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 regard the non-attendance of the Appellant at the hearing as a failure to advance their appeal.

The Court outlined the recent exchange of email correspondence to the Court in which the Appellant had sought a postponement of the hearing on 31 December 2024 and subsequently informed the Court that he was unwell and in hospital with flu and pneumonia. The Court noted that the Appellant had not replied to the Court’s most recent email sent to him the previous evening at 17:11 seeking confirmation of his intention to seek a postponement of the hearing on medical grounds. The Court noted that, having regard to that correspondence, it was open to it to adjourn the proceedings to allow the Appellant an opportunity to confirm that he was seeking a postponement of the hearing on medical grounds and to provide medical evidence to support such an application.

The Respondent’s legal representative advised the Court that his client was present at the hearing and ready to progress the appeal, and that a company witness had travelled from Milan, Italy, to attend the hearing.

The Respondent’s legal representative further stated that while his client was not seeking a postponement of the hearing, it would not object to a short postponement to allow the Appellant an opportunity to provide medical evidence to support an application he was unable to attend the hearing for the reasons he had outlined to the Court.

After taking a short break to consider the matter, the Court decided to adjourn the hearing and allow the Appellant an opportunity to provide medical evidence to support an application that he was unable to attend the hearing due to his hospitalisation with flu and pneumonia since 4 January 2025. The hearing then closed.

The Court wrote to the Appellant after the hearing by email to inform him about what had transpired at the hearing and to provide him with an opportunity to submit medical evidence in support of an application that he was unable to attend the hearing on medical grounds due to his hospitalization. He was asked to submit any medical information by close of business on 13 January 2025, if he wished to do so, and advised that thereafter, the Court would decide whether to re-convene a hearing of the appeal or, in the alternative, to engage in its statutory deliberative process in relation to that appeal.

The Appellant made no further contact with the Court after the hearing.

Deliberation

Rule 20 of the Labour Court Rules 2024, states:

20. 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.

In coming to a decision in relation to that matter the Court took account of the following:

• The Court is satisfied that the Appellant was on notice of the hearing date and time.
• The Respondent was represented at the hearing and prepared to progress the appeal, with a witness who had travelled from Italy to attend the hearing.
• The Court had refused an application, made by the Appellant on 31 December 2024, to postpone the hearing on the ground that another statutory body had commenced an investigation into a separate matter and had confirmed to him that the hearing on 10 January 2025 was scheduled to proceed.
• The Appellant informed the Court on 8 January 2025 that he was unwell and was hospitalised with flu and pneumonia since Saturday 4 January 2025.
• The Court is satisfied that the Appellant was aware of the process for seeking adjournments having previously made such an application.
• The Appellant was in email contact with the Court and the Respondent’s legal representative during this time.
• The Appellant did not reply to the Court’s request on 9 January 2025 to confirm his intention that he wished to apply for a postponement of the hearing on medical grounds or make further contact with the Court in advance of the hearing at 10:00am on 10 January 2025.
• The Court adjourned the hearing on 10 January 2025 to allow the Appellant an opportunity to submit medical evidence in support of an application for a postponement on medical grounds.
• The Appellant did not confirm that he wished to seek a postponement of the hearing on medical grounds. No medical evidence in support of such an application was submitted by the Appellant to the Court.
• The Appellant made no further contact with the Court after the hearing.

An appeal to the Labour Court is heard as a de novo appeal.

In this case, as the Appellant did not attend the scheduled hearing to move his appeal on 10 January 2025. The Court allowed the Appellant an opportunity to submit medical evidence to support an application that he was unable to attend the hearing on medical grounds. The Appellant provided no such information to the Court.

As the Appellant did not attend the hearing to progress his appeal, the Court is required to engage in its statutory deliberative process in relation to that appeal.

The Appellant did not attend the hearing to move his appeal.  Accordingly, the Court finds that his appeal fails and as a result his complaint under the Act is not well founded.

Determination.

The Appellant was not present to move his appeal. His appeal fails.

The complaint under the Act is not well founded.

The decision of the Adjudication Officer is upheld.

	Signed on behalf of the Labour Court
	Katie Connolly
FC	______________________
27th January 2025	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Fiona Corcoran, Court Secretary.