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An Post v. McNeill [1997] IEHC 161 (21st October, 1997)
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[1997] IEHC 161
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An Post v. McNeill [1997] IEHC 161 (21st October, 1997)
THE
HIGH COURT
1997 No. 25 Sp
BETWEEN
AN
POST
PLAINTIFF
AND
OLIVER
McNEILL
DEFENDANT
JUDGMENT
delivered on the 21st day of October, 1997 by O'Sullivan J.
1. In
its determination of the 11th December, 1996 the Employment Appeals Tribunal
(hereinafter called "the Tribunal") determined that the Defendant, Mr. McNeill,
was entitled to a statutory redundancy payment and also to a payment of
£250 compensation in lieu of notice under the terms in each case of the
relevant statutory provisions which are set out below.
2. The
determination of the Tribunal did not specify the amount of the redundancy
payment but set out the criteria to be used in assessing it. I am informed
that subsequently the Tribunal indicated that the amount of the payment should
be £1,350, but this calculation does not form part of the Tribunal's
determination nor is the calculation or the figure challenged, as an amount, in
the endorsement of claim on the special summons grounding these proceedings.
3. The
Plaintiff challenges the Tribunal's determination on a number of grounds as
follows: it erred in law in holding that the Defendant was continuously
employed between the 15th December, 1980 to the 26th June, 1995; that it erred
in law in holding that the "frequent breaks" which occurred during this period
of employment were periods of lay-off; it erred in law in determining that the
Defendant was dismissed by reason of redundancy on the 26th June 1995; it erred
in law in determining that the Defendant had sufficient reckonable service to
entitle him to a redundancy payment, and it erred in law in failing to hold
that the Defendant's entitlement to notice of termination of employment was
fully discharged by the Plaintiff.
4. Before
dealing with these grounds of challenge it is appropriate that I set out the
main statutory provisions of the two codes involved in this case.
MINIMUM
NOTICE AND TERMS OF EMPLOYMENT ACTS 1973 - 1991
4.-
(1)
An
employer shall, in order to terminate the contract of employment of an employee
who has been in his continuous service for a period of 13 weeks or more, give
to that employee a minimum period of notice calculated in accordance with the
provisions of sub-section (2) of this section.
(2)
The
minimum notice to be given by an employer to terminate the contract of
employment of his employee shall be -
(a) if
the employee has been in the continuous service of
his
employer for less than two years, one week ...
11.-(1)
any
dispute arising on any matter under this Act ... shall be referred in the
prescribed manner to the Tribunal.
(2)
the
decision of the Tribunal on any matter referred to it under this section shall
be final and conclusive, save that any person dissatisfied with the decision
may appeal therefrom to the High Court on a question of law.
12.-(1) If
an employer -
(a) fails
to give an employee the notice required by Section 4(2) of this Act, ...
the
employee may refer the matter to the Tribunal for arbitration and the Tribunal
may award to the employee compensation for any loss sustained by him by reason
of the default of the employer.
FIRST
SCHEDULE
COMPUTATION
OF CONTINUOUS SERVICE
CONTINUITY
OF SERVICE
1. The
service of an employee in his employment shall be deemed to be continuous
unless that service is terminated by -
(a) the
dismissal of the employee by his employer, or
(b) the
employee voluntarily leaving his employment.
3. a
lay-off shall not amount to the termination by an employer of his employee's
service.
COMPUTABLE
SERVICE
10. if
an employee is absent from his employment for not more than twenty-six weeks
between consecutive periods of employment because of -
(a) a
lay-off, ...
such
period shall count as a period of service.
REDUNDANCY
PAYMENTS ACTS 1967 - 1991
7.-(1) An
employee, if he is dismissed by his employer by reason of redundancy or is laid
off or kept on short time for the minimum period, shall, subject to this Act,
be entitled to the payment of monies which shall be known (and are in this Act
referred to) as redundancy payment provided -
(a) he
has been employed for the requisite period, and ...
(2)
For
the purposes of sub-section (1), an employee who is dismissed shall be taken to
be dismissed by reason of redundancy if the dismissal is attributable wholly or
mainly to -
(a) the
fact that his employer has ceased, or intends to cease, to carry on the
business for the purposes of which the employee was employed by him, or has
ceased or intends to cease, to carry on that business in the place where the
employee was so employed, or
(b) the
fact that the requirements of that business for employees to carry out work of
a particular kind in the place where he was so employed have ceased or
diminished or are expected to cease or diminish, or
(c) the
fact that his employer has decided to carry on the business with fewer or no
employees, whether by requiring the work for which the employee has been
employed (or had been doing before his dismissal) to be done by other employees
or otherwise, or
(d) the
fact that his employer has decided that the work for which the employee had
been employed (or had been doing before his dismissal) should henceforward be
done in a different manner for which the employee is not sufficiently qualified
or trained, or
(e) the
fact that his employer has decided that the work for which the employee had
been employed (or had been doing before his dismissal) should henceforward be
done by a person who is also capable of doing other work for which the employee
is not sufficiently qualified or trained.
(5) In
this section "requisite period" means a period of 104 weeks' continuous
employment (within the meaning of
Schedule
3) of the employee by the employer who dismissed him, laid him off or kept him
on short time, but excluding any period of employment with that employer before
the employee had attained the age of sixteen years
.
39.-(1) There
shall be a Tribunal (which shall be known as the Employment Appeals Tribunal
and in this
section
hereinafter referred to as the Tribunal) to determine the appeals provided for
in this section.
(14)
The
decision of the Tribunal on any question referred to it under this section
shall be final and conclusive, save that any person dissatisfied with the
decision may appeal therefrom to the High Court on a question of law.
SCHEDULE
III
CONTINUOUS
EMPLOYMENT
5.(1) Where
an employee's period of employment is or was interrupted by any one of the
following -
(b) a
period of not more than twenty six consecutive weeks by reason of -
(i) lay-off,
...
continuity
of employment shall not be broken by such interruption whether or not notice of
termination of the contract of employment has or had been given.
RECKONABLE
SERVICE
8. None
of the following absences from work shall be allowable as reckonable service -
(d) absence
by reason of lay-off by the employer.
RULES
OF THE SUPERIOR COURTS: ORDER 105: APPEALS FROM THE EMPLOYMENT APPEALS TRIBUNAL
Rule
3:
The
summons shall be served on the Minister for Labour and on all parties to the
decision of the Tribunal.
Rule 4:
The
summons shall be issued within twenty one days of the date on which notice of
the decision of the Tribunal was given to the party appealing; provided that
the time within which the summons may be issued may be extended on an
application
ex
parte
at any time within six weeks from the date on which
notice
of the decision of the Tribunal was given to the party wishing to appeal.
5. It
was argued on behalf of the Plaintiff that:
(a) the
determination of the Tribunal, which included as an Appendix a Schedule of
periods of lay-off, itself shows that there was not a sufficient continuous
service to entitle the Defendant either to redundancy payment or payment in
lieu of minimum notice;
(b) the
determination also shows that there was no evidence of dismissal which is a
necessary pre-condition to establishing entitlement; and
(c) the
determination also shows that there was no evidence of any one of the several
statutory bases for establishing that any dismissal was a dismissal by reason
of redundancy.
(d) It
was also submitted that the amount of £1,350 was calculated on an
incorrect basis namely that periods of lay-off in excess of twenty-six weeks
were incorrectly credited to the Defendant as periods of employment.
6. On
behalf of the Defendant it was submitted as a preliminary procedural point that
the Minister for Labour should have been joined as a party in the proceedings
and that as this has not been done the proceedings are incorrectly constituted
and fail to comply with the requirement of the rules that correctly constituted
proceedings be instituted within six weeks from the date on which notice of the
decision of the Tribunal was given to the party wishing to appeal.
7. Secondly,
it was submitted that the present appeal is really an attempt to appeal
questions of fact under the guise of a point of law and that the correct
procedure would have been by way of judicial review. Counsel referred in
particular to the decisions of the Supreme Court in
Bates
and Others -v- Model Bakery Limited and Anor
(1993): 1: IR: 359 and of the High Court (per Murphy J.) in
Irish
Shipping Limited -v- Adams and Anor
(Murphy J.: 30th January, 1987)
THE
LAW
8. In
his judgment of the 5th July, 1992 in the Model Bakery Limited case the then
Chief Justice, Finlay C.J., made the following observations:-
It
is of importance to point out, however that having regard to the clear terms of
the two sections providing for a final and conclusive decision by the Tribunal,
subject only to an appeal to the High Court on a question of law, that what
would appear to be the appropriate procedure is the summons as provided for in
Order 105, which should state the decision being appealed against, the question
of law which it is suggested was in error, and the grounds of the appeal, and
that it should be supported only by an Affidavit or Affidavits exhibiting the
determination of the Employment Appeals Tribunal, including any findings of
fact or recital of evidence made by it, and, in effect, identifying the parties
and the grounds on which the aggrieved party seeks a determination of a
question of law. There does not appear to be any room, however, in the
procedure, having regard to the terms of the two sections involved, for
repeating, and in particular, for adding to or supplementing evidence which was
given before the Employment Appeals Tribunal concerning the circumstances of
the dispute which have referred to that Tribunal."
9. Before
going further I should say that in the present case Affidavits were filed on
behalf of the Applicant which contain some material which appeared to me to
offend against the above principles and I have ignored such material. The
determination of the Tribunal should stand on its own and there is no need and
it is inappropriate, having regard to the above passage, either to repeat the
material contained in the determination of the Tribunal and, in particular,
there is no need for either adding to or supplementing the evidence before the
Tribunal. This judgment is based on the determination of the Tribunal which has
appended to it the Schedule of Periods of Lay-Off and on the evidence alluded
to in the relevant Superior Court Rules.
10. As
already indicated, reliance was placed by the Defendant on the judgment of
Murphy J. in
Irish
Shipping Limited -v- Richard Adams and Others
.
The judgment in that case is instructive because it demonstrates in a clear
way the effect of the jurisdictional restraints which apply to a case such as
the present one. In that case Murphy J. pointed to the fact that the Tribunal
had determined that two of the Defendant employees were in "continuous
employment" at a time when they were in fact employed by shipping companies
other than the Plaintiff. Notwithstanding this, however, he said:-
"Nevertheless
it seems to me that on the hearing of an appeal to this Court on a point of law
under the Redundancy payments act, 1967 I must - in the absence of agreement
between the parties - accept the facts as stated in the decision of the Tribunal.
"
11. I
take this to mean that the facts as stated by the Tribunal must be accepted by
this Court in the absence of agreement between the parties notwithstanding that
the Court would itself have come to a different conclusion and indeed
notwithstanding the fact that the Court does not have available to it a ready
explanation as to why or how the Tribunal itself could have found the facts as
it did.
12. Before
stating my conclusions I would observe that there is nothing in the statutory
provisions to which I have referred which establishes that a period of lay-off
may not exceed twenty-six weeks. In the context of the minimum notice
legislation, a shorter period shall count as a period of service and in the
context of the redundancy payments legislation continuity of employment shall
not be broken by a lay-off of a shorter period. There is nothing to say that a
lay-off cannot exceed this period. Indeed the specific provisions to which I
have referred suggests that such can be the case. That being so, it is within
the jurisdiction of the Tribunal to find that a period of interruption of work
in excess of twenty-six weeks is a period of lay-off. If they find this as a
fact under the principles to which I have referred, this Court will not disturb
such a finding.
CONCLUSIONS
1. I
do not think that it is necessary to join the Minister for Labour as a party.
He must indeed be served and I have been furnished with an Affidavit of
service. The rules specify that the Summons must be issued, as distinct from
served, within twenty-one days of the date specified and this can be extended on
ex
parte
application
within a period of six weeks from that date. In my view the proceedings are
correctly constituted within time.
2. The
Plaintiff argues that there is no determination that there was a dismissal and
that this is a necessary statutory pre-condition to the establishment of
entitlement.
13. It
is clear from the determination of the Tribunal that the whole question of
whether or not the Defendant was dismissed was in issue. In the course of the
judgment the following appears:-
"It
was stated that he (that is the Defendant) was not dismissed but refused to
work and was not dismissed for reasons of redundancy."
14. In
my view this is a clear indication that the two questions, namely, dismissal
and redundancy, were at issue in the proceedings. In the course of its
determination the Tribunal found as follows:-
"Our
finding as regards the redundancy application is that the claimant is entitled
to a statutory redundancy payment".
15. This
part of the determination was preceded by a statement that the Tribunal had
considered all the evidence adduced at the hearing. It is clear that the
judgment of the Tribunal does not purport to be either a verbatim or a complete
summary of such evidence. The Tribunal specifically found:-
"...
that
the frequent breaks in employment which we regarded as lay-off did not break
the claimant's continuity of service"
.
16. In
light of the report as a whole and specifically the foregoing, I am unable to
agree with the Plaintiff that the decision of the Tribunal is in error either
on the basis that there was no evidence in relation to dismissal or redundancy
or, alternatively, on the basis that the report failed to advert to it.
17. Finally,
it is submitted that the amount of the decree of £250 in relation to
minimum notice was demonstrably an erroneous calculation and, secondly, that
the figure of £1,350 (which as I have pointed out does not form part of
the determination or award of the Tribunal) was itself demonstrably in error.
18. With
regard to the specified figure of £250, it should be noted that the
determination of the Tribunal refers to the Defendant's gross outgoing wage as
being £250 per week. Under Section 4 of the Act of 1973 there is an
entitlement to one week's notice in the case of an employee who has been in
continuous service for a period of thirteen weeks or more. In my view it is
quite clear that the determination of the Tribunal is within its jurisdiction
in regard to the specified amount.
19. With
regard to the figure of £1,350, I note that the relevant portion of the
Tribunal's determination merely sets out the criteria for assessment. The
relevant portion is as follows:-
"Our
finding as regards the redundancy application is that the claimant is entitled
to a statutory redundancy payment. The criteria to be used in assessing the
payment due includes the record of the claimant's casual service with the
Respondent as follows:
His
date of birth being 21st May, 1939; the commencement date of his employment on
the 15th December, 1980, and its termination on the
26th
June, 1995; with account to be taken of the Schedule attached to this Order
showing the periods we have regarded as lay-offs; his gross outgoing wage of
£250 per week and his normal forty hour working week, under the terms of
the redundancy payments Acts, 1967 - 1991.
"
20. I
can find nothing erroneous in this statement of criteria. I have already found
that the Tribunal was entitled to find
as
a matter of fact that the frequent breaks in employment which are set out in
the Schedule referred to in its determination were periods of lay-off. Equally
in setting out the criteria for assessment of the payment due, the Tribunal
refers to the relevant Acts and specifies that account must be taken of the
Schedule attached to the Order which shows the periods they have found to be
periods of lay-off. That being the case, the correct calculation will have
regard to, inter alia, the provisions of Article 8 of Schedule 3 to the
Redundancy Payments Act, 1967 which specifies where relevant that an absence by
reason of lay-off by the employer shall not be allowable as reckonable service.
There is nothing in the award or determination of the Tribunal which indicates
otherwise and I am unable to agree that the determination of the Tribunal is in
error. If an error has subsequently been made by any party in applying the
criteria set out in the determination of the Tribunal then this is a matter
which can of course be corrected but for the reasons I have indicated, this is
not a matter which arises in the context of an appeal on a point of law from
the decision of the Tribunal in this case. I would add that even if a specific
figure for redundancy were to appear in the determination of the Tribunal, this
figure would not appear to me to be amenable to correction on appeal on a point
of law. Once the correct criteria have been set out, as they have been in this
case, any error or misapplication of such criteria to the facts does not
involve an error of law.
21. Accordingly
I must dismiss the Plaintiff's claim.
© 1997 Irish High Court