2002 No. 328 JR.
(Note: [*#] denotes the start of a new page of the transcript)
Judgment of Mr. Justice Aindrias Ó Caoimh delivered the 15th day of July 2002.
The applicant seeks an order by way of judicial review quashing the decision of the respondent of the 10th May, 2002 that it had jurisdiction to hear and determine the claim of the notice party that she had been unfairly dismissed by the applicant. In addition the applicant seeks a declaration by way of judicial review that the claim submitted by the notice party to the respondent on the 31st January, 2001 was not submitted within the time permitted by the provisions of the Unfair Dismissals Act, 1977 (as amended) (hereinafter referred to as 'the Act'.)
The notice party commenced her employment with the applicant in August, 1988. She resigned from her employment with the applicant by notice given in June, 2000 to the effect that she wished to terminate her employment as and from the 31st July, 2000.
The notice party attended for work on the 31st July 2000 and it is claimed on her behalf that she worked late on that day. The applicant submitted a claim form to the respondent in which she inserted the date 31st July 2000 (31.07.00) as the date on which her employment ended.
The notice party's claim came before the respondent on the 10th May, 2000 when the applicant contended that that notice of application pursuant to the Act had not been filed within the time permitted by the Act and that accordingly the respondent had no jurisdiction. It appears that the notice party contended that the application was within time and that therefore the respondent had jurisdiction.
The respondent ruled that it had jurisdiction in circumstances where no application was made to it to enlarge the time for the bringing of the application.
The relevant provision of the Act is s. 8 (2) and the relevant portion thereof reads as follows:
"(2) A claim for redress under this Act shall be initiated by giving a notice in writing...to… the Tribunal ...
(a) within the period of 6 months beginning on the date of the relevant dismissal…"
Section 1 of the Act defines 'date of dismissal' to include:
"(a) where prior notice of the termination of the contract of employment is given and it complies with the provisions of that contract and of the Minimum Notice and Terms of Employment Act 1973 the date on which that notice expires." (emphasis supplied).
It is clear that the period of six months beginning on 31st July, 2000 terminated on 30th January, 2001.
Section 11 of the Interpretation Act, 1937 provides:
"Where a period of time is expressed to begin on or be reckoned from a particular day, that date shall, unless the contrary intention appears, be deemed to be included in such period."
Counsel for the applicant submits by reference to the decision of the High Court in the case of The State (IBM Ireland Ltd) v. The Employment Appeals Tribunal  I.L.R.M. 31 in which Hamilton J (as he then was) referred to the Circuit Court decision in the case of IBM v. Feeney  I.L.R.M. 50 in which Judge Ryan in the Dublin Circuit Criminal Court held the provisions of s. 8 (2) of the Act to be mandatory.
In the course of his judgment Hamilton J stated, inter alia, at p. 33 of the report:
"The basic question for determination is whether, in view of the failure by the second- named respondent to give to the prosecutor a copy of the notice in writing initiating his claim within six months of the date of his dismissal, the first named respondent has jurisdiction to hear and determine his claim.
The rights conferred by the Unfair Dismissals Act, 1977 are statutory rights; the powers conferred on the first named respondent are statutory powers and in connection with their exercise the statutory requirements of the Act must be complied with.."
Before either the rights commissioner or the tribunal can deal with a claim for redress, a notice in writing of the claim must be given to them within six months of the date of the relevant dismissal and a copy of the notice must be given to the employer concerned within the same period viz. six months of the date of the relevant dismissal.
It is of course the responsibility of the dismissed employee to ensure that these statutory requirements are complied with because if they are not, the rights commissioner or the tribunal has no jurisdiction to hear and determine his claim."
It is submitted by counsel for the applicant that it is clear from the terms of this judgment that the jurisdiction of the tribunal is dependent upon there being compliance with the statutory requirements of the Act and that it is a matter for the employee to prove compliance with the statutory requirements.
It is not entirely clear what the basis of the determination of the respondent was as no written determination was given and the chairman of the respondent at the relevant time confined himself to indicating that the respondent considered that it had jurisdiction.
The application in the instant case is listed for hearing on 22nd July, 2002. The applicant submits that the remedy of an appeal is not an appropriate remedy in the instant case as if the respondent does not have jurisdiction the applicant should not have to face a protracted hearing.
In conclusion counsel submits that a condition precedent to the respondent having jurisdiction in the instant case would be a determination by the respondent that it is satisfied that exceptional circumstances prevented the giving of the notice within the period aforesaid but that notice was given, within such period not exceeding 12 months from the date of the relevant dismissal, as it considers reasonable.
On behalf of the notice party Mr. Roderick Horan of counsel submits that there are many instances of bodies determining that they have preliminary jurisdiction. Counsel refers to the various matters to be established by an applicant to show that the respondent has jurisdiction. Counsel refers to the fact that the respondent determined that it had jurisdiction to deal with the claim of the notice party without giving reasons. He indicates that he was in a position, if required at the time, to demonstrate to the respondent that there was a basis for an extension of time to be afforded to enable the claim to proceed. Counsel submits that if the decision of the respondent was erroneous on the basis of an error of fact that it is not judicially reviewable. Counsel submits that the respondent may have drawn an inference from the facts. He indicates that it may have deemed the date of the relevant dismissal to have been 1 August 2000.
Counsel submits that in the several cases in which the decisions of the respondent have been judicially reviewed the only successful cases were those decided on the decision making process of the respondent.
Counsel refers to the fact that there exist in law two appeals from a determination of the respondent, namely in the first instance to the Circuit Court and thereafter to the High Court. On this basis he submits that the instant application is premature. He indicates that the applicant did not seek a written determination from the respondent. Counsel concedes in the instant case that the applicant enjoys a right of appeal against the interim determination of the respondent impugned in these proceedings.
Counsel adopted written submissions prepared by him and these may be summarised as follows:-
1. The respondent was and is empowered to determine whether a given application is within time; This is an integral element of the respondent's function.
2. The respondent made its determination after lengthy submissions from counsel for each of the parties before it. It held that the claimant was in the employment of the applicant on 31st July, 2000 and that she ceased to be an employee as and from 1st August, 2000.
3. In making its determination the respondent was making a determination on issues which were not susceptible to judicial review. The Oireachtas entrusted the respondent with the jurisdiction to determine all issues of fact and law arising out of claims made to it. If there was an error on the part of the respondent it was patently within jurisdiction.
Counsel referred me to the decision of the High Court in the case of Nova Colour Graphic Supplies Ltd. v. Employment Appeals Tribunal  I.R. 426 in which the issue was whether the claimant had the requisite continuity of service to ground a claim under the Act. In the course of his judgment Barron J stated, inter alia, at p. 429 as follows:
"Whether there has been a continuity of service bringing the second respondent within the provisions of the Unfair Dismissals Act, 1977 is a question of fact which the Tribunal has jurisdiction to determine and this it has exercised. If it is wrong in its determination, then this can be remedied by appeal, which is clearly the appropriate manner in which its decision should be challenged. An appeal lies under s. 10, sub-s.4 from any determination of the Tribunal in relation to a claim for redress under this Act. So that even if it had been that there was no basis in fact for the decision of the Tribunal on the evidence before it, nevertheless an appeal would lie, in the course of which the appellant would not be limited to such evidence. In these circumstances, no useful purpose would be served in any event by granting discretionary relief since ultimately the matter could always be heard afresh on appeal."
In Memorex World Trade Corporation v. Employment Appeals Tribunal  2 I.R. 184 Carroll J identified a want of natural justice in the conduct of an appeal by the Tribunal.
[*4]However, she stated that in the exercise of her discretion she refused the relief sought on the grounds that certiorari was not necessary for the protection of the applicant's rights. She held that the appeal procedure was adequate particularly as there is a double appeal.
In Harte v. Labour Court  2 I.R. 171, Keane J observed at page 178 of the report:
"The Oireachtas has vested in the Labour Court the power to decide, not merely questions of fact, but also mixed questions of fact and law such as came before them in the present case. It also afforded a remedy to a party dissatisfied with their decision on a question of law in the form of an appeal to this Court. In these circumstances, it is not sufficient for the applicants to argue, as they have done, that the decision of the Labour Court was erroneous in point of law: they would have to demonstrate that the error was of such a nature that a hearing, admittedly commenced within jurisdiction, culminated in a decision which was in law a nullity I am satisfied that the decision of the Labour Court, even if erroneous in point of law, did not constitute an error of such a nature as to be a nullity."
Further counsel referred to the judgment of O'Hanlon J in Rajah v. Royal College of Surgeons  1 I.R. 384 in which the learned High Court judge observed that it was important that the High Court should not be turned into a Court of Appeal from the decisions of administrative tribunals generally and that the tendency to invoke the jurisdiction of the High Court by way of judicial review proceedings in every case where a party was dissatisfied with the decision of such tribunal was one that must be resisted.
In The State (Davidson) v. Farrell  I.R. 438 Maguire C.J. commented as follows at p. 448 of the report:
"The question whether certiorari lies turns on whether in deciding that such a sum might be included the District Justice was deciding a question the decision of which was an essential preliminary to give him jurisdiction - or was exercising a jurisdiction conferred on him by the Rent Restrictions Act, 1946. The Act confers upon the District Court the jurisdiction to determine the basic rent and the lawful additions thereto of premises to which the Act applies. Both landlords and tenant agree that the Act applies to the premises let to the prosecutor. It seems to me that jurisdiction is given to the District Court to decide all questions which have to be determined in order to arrive at the basic rent and the lawful additions. Lord O'Brien L.C.J. in The King (Martin) v. Mahony (1), at p. 707, says - "To grant certiorari merely on the ground of want of jurisdiction because there was no evidence to warrant conviction, confounds, ... want of jurisdiction with error in the exercise of it."
Basically the ground relied upon here is that there was no evidence that the repairs in respect of which the allowance was made were carried out in the premises which were let. If it be claimed that the District Justice (sic) erred in his decision as to this it could be, and in this case was, questioned on appeal. Furthermore, the point of law argued so strenuously could have been brought to the High Court on a case stated. In my opinion, however, the District Justice and, on appeal, the Circuit Judge, in deciding that an allowance should be made under s. 11 sub-s. 2 (g) and in fixing the figure to be allowed, were lawfully exercising a jurisdiction entrusted to them by the Statute. Their decision was made in the course of a proceeding upon which they had properly entered.
The complaint is not want of jurisdiction but of error in the exercise of it. For this certiorari does not lie."
Based upon these cited decisions, counsel for the notice party submits that this court should refuse the relief sought on the basis that if the respondent erred it did so within jurisdiction and further on the basis that the appropriate remedy for the applicant is by way of an appeal provided for by statute.
It is clear that the respondent does not have jurisdiction to determine a claim unless the claim is brought within the period prescribed by statute and this is the period of six months provided for in s. 8 of the Unfair Dismissals Act, 1977 (as amended) or if the claim is not brought within the period of 12 months provided the tribunal is satisfied that exceptional circumstances prevented the giving of the notice within the period of six months. It is clear that the respondent did not seek to address the alternative basis of jurisdiction referred to in s.8 (2) (b) of the Act. Accordingly, I am satisfied that unless it determines the matter as coming within this sub-section that the respondent does not have jurisdiction to determine the claim of the notice party unless it was brought within the relevant six month period.
It is clear that the date of "the relevant dismissal" in the instant case was the date on which the notice given by the claimant expired. This was to expire on 31st July, 2000. In computing the period of six months "beginning on the date of the relevant dismissal" one has to have regard to the provisions of s. 11 of the Interpretation Act, 1937 which provides:
11….(h) Periods of time. Where a period of time is expressed to begin on or be reckoned from a particular day, that day shall, unless the contrary intention appears, be deemed to be included in such period, and, where a period of time is expressed to end on or be reckoned to a particular day, that day shall… be deemed to be included in such period."
By reference to this section, I am satisfied that applying same the six month period at issue in the instant case is deemed to have commenced on 31st July, 2000 unless the contrary intention appears. No case has been made by or on behalf of the notice party that the contrary intention appears in the Act of 1977 and, accordingly, I am satisfied that the period of six months commenced on 31st July 2000. In these circumstances I am satisfied that the six months period expired on 30 January, 2001.
I do not consider that the case made on behalf of the notice party is appropriate to this case insofar as it is submitted that in my discretion I should refuse the relief sought, or in the alternative, if an error was made by the respondent that the same was made within jurisdiction. I am satisfied that this is a case in which the applicant seeks to establish that the respondent does not have jurisdiction to entertain the claim of the notice party. While the reliefs sought are expressed to be for certiorari of the decision of the respondent and a declaration, I am satisfied that if the respondent does not have jurisdiction that the appropriate relief would be that of an order of prohibition, in which case the question of it having made an error within jurisdiction would not necessarily avail the respondent. This is not a case that turns on a conflict of evidence. The essential factual matrix is not in issue and the issue is clear - does the respondent have jurisdiction in the circumstances?
I am satisfied that the cases referred to by counsel for the notice party are not a sufficient authority to refuse the relief sought as it is clear that the applicant should not be faced with having to defend a claim before the respondent unless the respondent establishes that it has jurisdiction. I am satisfied that on the undisputed facts of this case that it does not have jurisdiction under s. 8 (2) (a) of the Unfair Dismissals Act, 1977 and that accordingly it should not proceed with the claim of the notice party unless satisfied that the requirements of s. 8 (2) (b) of the Act have been satisfied. If the applicant is correct then the further
[*6]proceedings before the respondent will not have been commenced within jurisdiction at all as a condition precedent to the respondent having jurisdiction will not have been satisfied. On this basis I am satisfied that the dicta of Keane J (as he then was) in the case of Harte v. Labour Court  2 I.R. 171 are inapplicable to the facts of the instant case. I am not satisfied that an appeal is a more appropriate remedy in the instant case and I accordingly believe that in my discretion the applicant is entitled to the relief sought herein. In reaching this conclusion I am conscious that the respondent has already fixed a date for the hearing of the claim of the notice party herein. I am of the view that on this date the respondent should invite further submissions from the notice party and from the applicant in determining whether it may have jurisdiction to hear the claim of the notice party on the basis of s. 8 (2) (b) of the Act. Accordingly the relief which I propose giving will be as claimed by the applicant. The relief of certiorari will issue on the basis that the respondent does not have jurisdiction to entertain the claim of the notice party on the basis of s. 8 (2) (a) of the Act in circumstances where the claim was not brought within 6 months of the date of the relevant dismissal of the notice party herein.