High Court of Ireland Decisions

1. By Order of Mr. Justice Quirke made the 30th June, 1997, leave was granted to the Applicant to institute Judicial Review proceedings based on a statement of grounds which essentially made one complaint only, that is to say, that the First named Respondent, the Labour Court, had failed to require of the Notice Party and furnish on the Applicant detailed particulars as demanded by the Applicant arising out of an application for compensation lodged by the Notice Party against the Applicant under Sections 26 and 27 of the Employment Equality Act, 1977. However, at the hearing of the application for leave before Mr. Justice Quirke it appears that the Applicant sought to add an additional relief, namely, a declaration that the provisions of Section 26(1)(e) of the Employment Equality Act, 1977 are unconstitutional, having regard to the provisions of Article 34.1 and Article 40.1 and Article 40.3.1 and 2 of the Constitution and adding the additional ground that by virtue of Section 26(1)(e) of the Employment Equality Act, 1977, the Applicant was deprived of its constitutional rights of access to the Courts and had been discriminated against on the alleged ground that Section 10(4) of the Unfair Dismissals Act, 1977 allowed an appeal to the Circuit Court and therefrom to the High Court in identical or similar circumstances whereas only limited rights of appeal were conferred by the Employment Equality Act, 1977. Leave was granted by Mr. Justice Quirke to deliver an amended statement of grounds adding in the additional relief and ground. As a question of the constitutional validity of a statutory provision now arises, the Attorney General is joined as a party.

2. In the events that have happened the non-constitutional grounds on which Judicial Review is sought no longer arise even for the purposes of determining the costs issue and in accordance with well established principles this Court should not embark on consideration of what is merely a moot. The original grounds of attack on the Labour Court procedures have become redundant because the written submission served by the Notice Party on the Labour Court and on the Applicant contains not just legal argument but a very detailed account indeed of the allegations grounding the compensation claim. It is not necessary to analyse the particulars sought originally by the Applicant. There is no doubt that insofar as the Applicant sought the names of witnesses it was not entitled to that information as that would never be the proper subject of a notice for particulars in civil proceedings in the High Court. But in relation to any of the matters which would form the proper subject matter of a notice for particulars if the claim was a civil action in the High Court detailed answers have effectively been given in the written submission. In those circumstances this is not an appropriate case in which to discuss whether and to what extent the Labour Court is obliged to seek further particulars of a claim if the person complained against so requires it. I have already mentioned that the issue does not even arise for the purposes of determining costs. In an Affidavit by Eleanor McPhillips, Solicitor in the office of the Chief State Solicitor, she says that a proposal was put to the Applicant through its Solicitor by a letter of the 20th November, 1997 that the Respondents would pay the Applicant's costs to date to be taxed in default of agreement if the Applicant would withdraw the Judicial Review proceedings and allow the Notice Party's complaint to be heard by the First named Respondent. That offer was rejected.

3. The only matter left for this Court to consider therefore is the question of whether Section 26(1)(e) of the Employment Equality Act, 1977 is invalid having regard to the Constitution. The context in which this issue arises is as follows. For all practical purposes, the Applicant is claiming compensation for constructive dismissal on the grounds of sexual harassment which she claims infringed the Employment Equality Act, 1977. That dispute comes to be determined by the Labour Court under Section 27 of that Act. But sub-section (2) of Section 27 provides that where a dispute is referred under that section to the Labour Court, Section 26 should apply to the dispute as if it were a complaint under that section. It is necessary therefore to move to Section 26 to understand the nature of the Applicant's complaint. Section 26 deals in the first instance with complaints made in respect of dismissals from employment by reason of an employee doing a thing specified in Section 2(d)(i) to 2(d)(iv) and it sets out procedures in the case of such application. These procedures are obviously imported into Section 27 complaints by virtue of sub-section (2) as already referred to. Under the Section 26 procedure an employer or dismissed person in respect of whom an Order has been made may appeal to the High Court on a point of law. (See Section 26(1)(e)). But there is also another type of appeal provided for in Section 26(5) in a case where the claim is for compensation. That sub-section effectively provides that where, by an Order of the Labour Court, the employer concerned is directed to pay to the dismissed person such compensation as the Court considers reasonable in the circumstances but not in any case more than 104 weeks remuneration, an appeal against that Order lies to the Judge of the Circuit Court in whose circuit the person carries on business. In this particular case the Notice Party's claim is confined to compensation and therefore if the Labour Court finds against the Applicant there may in fact be two forms of appeal open to it. If it is alleged that the Labour Court made an error on law an appeal will lie to the High Court or if the error is on fact it would appear that an appeal will lie to the Circuit Court.

4. Notwithstanding these extensive rights of appeal, the Applicant contends that Section 26(1)(e) is invalid having regard to various articles in the Constitution but essentially the point argued was that it was constitutionally unfair that if the same claim had been brought under the Unfair Dismissals Act, 1977 instead of the Employment Equality Act, 1977, the Applicant would have had a right of appeal to the Circuit Court on facts and law and a further appeal from the Circuit Court to the High Court. The Respondents maintain that the Applicant has no locus standi to make this claim at this stage on the grounds that the Applicant might well succeed in the Labour Court proceeding and then the question of appeal would not arise. I am not altogether convinced by this particular argument. Without expressing any view as to when and in what circumstances, if at all, a constitutional right of appeal in any particular proceeding arises, it would seem to me that if there was such a constitutional right and if a statutory provision setting up the procedure did not provide for it, a person before ever he had to face the proceedings in the first instance would have locus standi to attack the entire procedure on the basis that it was constitutionally flawed as not providing for a right of appeal. However, none of that arises in this particular case for a number of reasons.

5. First of all, the relief which the Applicant is seeking and the permission to seek it granted by Mr. Justice Quirke is confined to a declaration that Section 26(1)(e) of the Employment Equality Act, 1977 is unconstitutional. It is not therefore a constitutional attack on the entire procedure. But this form of relief would seem to me to be clearly misconceived. Under paragraph (e) the Applicant is given a right of appeal to the High Court on a point of law. To declare the paragraph unconstitutional would merely have the effect of removing that right. It would not confer the right to any additional rights of appeal. Nor of course is it open to this Court to make any kind of Order of Mandamus directing the Oireachtas to enact amending legislation providing for wider rights of appeal.

6. Secondly, it appears to have been originally overlooked that having regard to the combined provisions of Section 27(2) and Section 26 an appeal would lie to the Circuit Court against an Order directing the Applicant to pay compensation. That appeal would not be confined to points of law.

7. Thirdly, even if there was a right of appeal only on a point of law that would not of itself render a statutory provision unconstitutional and indeed I do not think that Counsel for the Applicant is arguing otherwise. What Counsel for the Applicant is relying on is the fact that under the Unfair Dismissals Act, 1977 there is an appeal on all matters to the Circuit Court and from there to the High Court. But even if it were the case that there was only an appeal on a point of law to the High Court, I do not think that that argument would justify declaring any part of the Employment Equality Act, 1977 unconstitutional. The two Acts are dealing with different problems and there is nothing wrong or unconstitutional in there being different procedures for dealing with them. It is true that in certain circumstances they can overlap so that something which is objectionable under one Act is equally objectionable under the other Act but I cannot see that that could have the constitutional effect that the two Acts must provide for identical procedures.

8. For all these reasons therefore I can find no grounds for declaring Section 26(1)(e) to which the presumption of constitutionality applies to be invalid having regard to any part of the Constitution. The application for Judicial Review must therefore be refused.