[2019] IEHC 578
THE HIGH COURT
JUDICIAL REVIEW
Record No. 2017/307JR
JURIJ BONDARENKO
APPLICANT
AND
THE EMPLOYMENT APPEALS TRIBUNAL
RESPONDENT
AND
KEEGAN QUARRIES LIMITED
NOTICE PARTY
JUDGMENT of Mr. Justice Binchy delivered on the 31st day of May, 2019
1. By these proceedings, the applicant, by way of judicial review, seeks orders, inter alia , of certiorari quashing a decision of the respondent dated 20th March, 2017, by which decision the respondent had declined to make an order, in favour of the applicant, implementing the recommendation of a Rights Commissioner made on 30th September, 2015, whereby the Rights Commissioner recommended the reinstatement of the applicant to his employment with the notice party with effect from the date of his dismissal, 19th July, 2014. The respondent did not participate in these proceedings, leaving it to the notice party to oppose the application.
Background
2. The applicant brought claims against the respondent pursuant to the provisions of the Unfair Dismissals Act 1977 (as amended) (the "Act of 1977"), the Terms of Employment (Information) Act 1994 (as amended) (the "Act of 1994"), the Organisation of Working Time Act 1997 (the "Act of 1997"), and other employment law statutes. Simultaneously, the applicant also brought the same claims, in identical terms, against another company, Keegan Precast Limited, a company which may loosely be described as a sister company of the notice party. The notice party maintains that it was originally the employer of the applicant, but that in July, 2011, the activities of the notice party were transferred to Keegan Precast, and that at that time all the employees of the notice party were transferred to Keegan Precast as part of a transfer of the undertaking of the notice party to Keegan Precast.
3. The applicant, however, does not accept that he was an employee only of the notice party. In his affidavit of verification grounding these proceedings, the solicitor for the applicant, Mr. Richard Grogan, exhibits correspondence to the applicant from both companies in the form of a letter from the notice party to the applicant of 20th June, 2014, and another letter to the applicant of 5th August, 2014, from Keegan Precast. The letter from the notice party of 20th June, 2014, is headed "letter of warning" and the letter from Keegan Precast of 5th August, 2014, is headed "meeting" and is in reply to a letter received from the applicant. In this latter, Keegan Precast replies to a letter received from the applicant in relation to his dismissal, denying that a dismissal had occurred.
4. Mr. Grogan also exhibits certain correspondence apparently sent by the applicant to the notice party whereby on 18th August, 2014 he made a request pursuant to s. 4 of the Data Protection Act 1988 (as amended), and specifically requests a copy of his contract of employment and other documents related to his employment. Another document headed "notice for particulars" and dated 16th July, 2014, and addressed to the notice party, is also exhibited. This document was sent by the solicitors for the applicant to the notice party, and sought, inter alia , a copy of the applicant's contract of employment, particulars of the terms and conditions of employment of the applicant, as required by s. 3 of the Act of 1994, and also sought an explanation as to why no such particulars had previously been furnished to the applicant as required by s. 3 of that Act. Other information was also requested in this notice. It appears that the solicitors for the applicant subsequently made a complaint to the Data Protection Commissioner arising out of the failure of the notice party to respond to these requests (or alternatively, on the basis that any response received was inadequate - it is not clear from the documentation exhibited which is the case), but that ultimately this complaint may have petered out because the notice party was unable to locate the applicant's file.
5. In any case, according to the applicant, no response was received to these requests for information. It is not surprising, therefore, that the applicant claimed against both companies; if there is uncertainty as to the identity of his employer, he can hardly be criticised for advancing claims against both entities in the expectation that the issue will resolve itself in the course of the processing of the claims. In the event, however, this lack of clarity as to whether the applicant was employed by one, other or both companies is the root cause of this dispute.
6. It is not clear from the documentation exhibited how or when claims were served upon the companies by the solicitors for the applicant. However, it has not been suggested by the notice party that it did not receive notice of the claim. An affidavit in reply to the affidavit of Mr. Grogan was sworn on behalf of the notice party by a Mr. Paul Moore of Malone and Martin Solicitors in which he avers that, due to inadvertence, his firm was not aware that there were two sets of claims, one against the notice party and one against Keegan Precast. Although he does not say so expressly, it is clear from his affidavit that he understood that his firm had been instructed on behalf of Keegan Precast, and neither he nor the notice party were aware for some considerable time that there was a separate series of claims against the notice party. Accordingly, his firm came on the record on behalf of Keegan Precast only.
7. The Rights Commissioner then allocated a hearing date for the claims of 13th July, 2015. This date presented a difficulty, both for Mr. Moore and his firm, and their client, Keegan Precast. By coincidence, they were involved in preparation for a trial in the High Court which was due to commence the day following, on 14th July, 2015. Mr. Moore avers that, on this basis, he wrote to the Rights Commissioner and requested an adjournment of the hearing before the Rights Commissioner, but this application was refused. Accordingly, Mr. Malone avers, his firm could do no more than arrange to have a trainee attend the hearing as a note taker only and they informed the Rights Commissioner that she would attending in this capacity only. Accordingly, the hearing proceeded before the Rights Commissioner, as against both companies on 13th July, 2015, in the absence of any appearance by or any representation on behalf of Keegan Precast or the notice party.
8. The Rights Commissioner heard the claims and issued determinations as against both companies on 30th September, 2015. As mentioned above, these recommendations included, inter alia , a recommendation that the applicant be reinstated to his employment. The recommendations were in identical terms in relation to each company so that the reinstatement of the applicant was recommended in relation to each company. In the case of both the claim under the Act of 1977 and the Act of 1994, in relation to each company, the Rights Commissioner states that the claimant was employed as a general operative from 4th July, 2005 to 19th July, 2014, and that he was paid €11 per hour and worked an average of 52 hours per week. In the case of the unfair dismissals claim as against each company, the Rights Commissioner recommended that the applicant be reinstated to his position and in relation to the claims under the Act of 1994, the Rights Commissioner, in each case, awarded the applicant the sum of €2,000 compensation (having found, in the absence of either the notice party or Keegan Precast, that there had been a breach of that legislation).
9. Keegan Precast appealed the recommendations of the Rights Commissioner as against it, but the notice party did not because, according to the notice party, it was unaware that there had been two claims and that there were two sets of recommendations. According to Mr. Moore, the Rights Commissioner sent his recommendations, in relation to Keegan Precast to his office, but sent the recommendations in relation to the notice party directly to that company, and so neither the notice party nor its solicitors were aware that there were two sets of recommendation issued by the Rights Commissioner, one each relating to each company. The only difference in the recommendations of the Rights Commissioner is the name of the company in each, otherwise the recommendations are in identical terms. Mr. Malone avers that in communications as between his firm and the notice party, the notice party assumed that its solicitors had received the same set of recommendations from the Rights Commissioner that the notice party itself had received. However, the applicant, through his solicitors was at all times aware that two identical recommendations, one relating to each company, had been issued by the Rights Commissioner.
10. The appeal of Keegan Precast was heard before the Labour Court on 11th April, 2016. Mr. Moore avers that at this hearing, the applicant accepted that his correct employer and the correct respondent was Keegan Precast Limited and not the notice party. He further avers that the applicant participated in an agreement between the parties as to the level of remuneration received by him from Keegan Precast. At no stage during the course of the hearing did the applicant, or his advisors, refer to the fact that there were identical, outstanding, recommendations of the Rights Commissioner relating to the notice party, that had not been appealed. At the hearing of these proceedings, it was confirmed that the applicant's advisors were aware of this state of affairs and did not inform either the Labour Court, the notice party or its solicitors. However, it was not accepted by the applicant that, at the hearing before the Labour Court, he accepted that Keegan Precast was his correct employer or that there was agreement as to his level of remuneration. Mr. Moore avers that the sum of €560 per week was a figure put forward by Keegan Precast as being the remuneration of the applicant prior to his dismissal. However, while not accepting that it was agreed, the applicant does not suggest that that level of remuneration was contested at the hearing before the Labour Court.
11. The Labour Court issued a determination in respect of the appeal of Keegan Precast on 3rd May, 2016. The Labour Court affirmed the decision of the Rights Commissioner in his finding that the applicant had been unfairly dismissed, but, having regard to the period that had elapsed since the date of dismissal it concluded that reinstatement was no longer feasible or appropriate and instead directed Keegan Precast to pay the applicant compensation of €42,000 in respect of his loss of earnings arising from that unfair dismissal.
12. In the course of its determination, the Labour Court stated:-
"It is common case that the complainant commenced employment with the respondent as a general operative on 4th July, 2005 and his employment terminated in July 2014."
13. Following on from the decision of the Labour Court of 3rd May, 2016, which, of course, concerned Keegan Precast only, the applicant, through his solicitors on 31st May, 2016, submitted an application to the respondent seeking the implementation of the decision of the Rights Commissioner in connection with the claim of the applicant as against the notice party.
14. On the following day, 1st June, 2016, the solicitors for the applicant wrote to the solicitors for Keegan Precast in relation to the amounts outstanding by that company to the applicant pursuant to the orders of the Labour Court made up of €42,000 in respect of the unfair dismissals claim and €1,450 in respect of the claim under the Act of 1997 and the sum of €2,056, in respect of the claim under the Payment of Wages Act 1991. This letter threatened proceedings in the event of non-payment, and follow up letters were sent on 7th July, 2016.
15. On 9th September, 2016, having received a notification from the respondent of a hearing date (arising out of the application made by the applicant to implement the decision of the Rights Commissioner) the solicitors for the notice party wrote to the solicitors for the respondent and invited the applicant to withdraw all applications referable to the notice party. They stated that they were concerned that there was some confusion arising out of the orders made by the Workplace Relations Commission (by which they meant the Labour Court) earlier in the year, and went on to state: "As you are aware all of the orders were made against Keegan Precast Limited." According to the notice party, it was only around this time, or shortly before this time, that it became aware that there were recommendations issued by the Rights Commissioner in respect of both companies.
16. The solicitors for the applicant replied to this correspondence by letter dated 12th September, 2016. They did not accept that there had, at any time, been any lack of clarity about the matter and stated:-
"Any argument that you were not aware of the case against Keegan Quarries, or that it was being implemented or that such awards were in existence, do not stack up."
17. This letter made it clear that as far as the applicant was concerned, there were two enforceable decisions, the first being the un-appealed decision of the Rights Commissioner which was now the subject of an application for implementation to the respondent, and the second being the decision of the Labour Court concerning Keegan Precast.
18. The application for implementation of the decision of the Rights Commissioner in relation to the notice party came on for hearing before the respondent over three days, 23rd September, 2016, 24th November, 2016 and 30th January, 2017. This application was concerned with two elements of the decision of the Rights Commissioner as against the notice party i.e. his decision to award reinstatement to the applicant for the purposes of the Unfair Dismissal Acts and his decision to award the applicant €2,000 in respect of the breach on the part of the notice party of its obligations under the Act of 1994. The determination of the respondent in the proceedings was in the following terms:-
"The Employment Appeals Tribunal heard legal submissions on three occasions. The Tribunal was informed by the representatives for the said [sic] the matter had been brought to the attention of the Rights Commissioner who heard a case or cases. The Tribunal was further informed that the Rights Commissioner had indicated that he was unable to amend his order or orders. The Rights Commissioner had issued two decisions because he could not determine which party was the correct employer.
Section 8(3)(a) of the Unfair Dismissals Act 1977 provides:
‘A rights commissioner shall not hear a claim for redress under this Act if […] the Tribunal has made a determination in relation to the claim […].'
The effect of this provision is that a Rights Commissioner has no statutory power to make a determination in relation to a claim where there has already been a determination, or to make two determinations in relation to one claim. In this case, if there is a separate un-appealed decision of the Rights Commissioner against this named respondent (K.Q. Limited), any such determination is ultra vires the Rights Commissioner as it already made a determination against K.P. Limited.
In these circumstances, there is a separate and un-appealed determination against K.Q. Limited, any such determination is unenforceable.
Under all the circumstances, the Employment Appeals Tribunal declines to make an implementation order [sic] sought."
19. In the concluding paragraph of his affidavit, Mr. Moore states that Keegan Precast is not seeking to evade payment of sums lawfully due to the applicant, and he refers to a letter that he sent on behalf of Keegan Precast, on 23rd November, 2016, in which it is stated that Keegan Precast was anxious to discharge its obligations to the applicant pursuant to the determination of the Labour Court. At this time, of course, the application to implement the decision of the Rights Commissioner, insofar as it concerned the notice party, was well under way. The solicitors for the applicant did not reply to this letter.
20. Following upon the decision of the respondent, these proceedings issued on 10th April, 2017. Leave to issue these proceedings by way of judicial review was granted on 24th April, 2017.
The Pleadings and Submissions
The Applicant
21. In his statement of grounds, the applicant seeks some sixteen reliefs, the substance of which may be summarised as follows:-
(i) an order of certiorari quashing the decision of the respondent of 20th March, 2017;
(ii) if necessary, an order remitting the applications made by the applicant to the respondent, and directing the respondent to reconsider the same;
(iii) an order of mandamus requiring the respondent to make determinations pursuant to s. 8(4)(a) of the Act of 1977, and s. 8(6) of the Act of 1994;
(iv) a declaration that the respondent erred in law and acted ultra vires its powers in concluding the decision of the Rights Commissioner insofar as it related to the notice party, was ultra vires and unenforceable and further that the decision of the respondent, in declining to make determinations in like effect to those of the Rights Commissioner further erred in law and acted ultra vires ;
(v) a declaration that s. 8(4)(a) of the Act of 1977, requires the respondent to make a determination to the like effect of a recommendation of a Rights Commissioner in respect of unfair dismissal where the time for appealing that recommendation has expired, and no appeal has been brought;
(vi) a declaration that a party against whom a recommendation has been made by a Rights Commissioner pursuant to a claim for redress under the Act of 1977 and pursuant to a complaint under the Act of 1994, is not entitled to be heard by the respondent in respect of an application by the other party to the claim, by reason of the provisions of s. 8(4)(a) of the Act of 1977, and s. 8(6) of the Act of 1994, respectively;
(vii) a declaration that s. 8(6) of the Terms of Employment (Information) Act 1994, requires the respondent to make a determination to the like effect of a recommendation of a Rights Commissioner in respect of the provision of terms of employment, where the time for appealing that recommendation has expired, and no appeal has been brought.
22. In bringing these proceedings, the applicant relies on the terms of s. 8(4)(a) of the Act of 1977, and s. 8(6)(a) of the Act of 1994. These sections were repealed with effect from 1st October, 2015, by s. 80(1)(g) of the Workplace Relations Act 2015 (the "WRA"), which was in turn amended, before it was commenced, by s. 20(1)(i) of the National Minimum Wage (Low Page Commission) Act 2015 (the "NMWA"). However, the applicant argues that these amendments do not disentitle the applicant to rely on s. 8(4)(a) of the Act of 1977 and s. 8(6) of the Act of 1994, because, inter alia , the applicant had already acquired rights under those sections prior to their repeal. I address this in more detail below.
23. Section 8(4)(a) of the Act of 1977 as inserted by s. 7 of the Unfair Dismissals (Amendment) Act 1993, provides:-
"Where a recommendation of a rights commissioner in relation to a claim for redress under this Act has not been carried out by the employer concerned in accordance with its terms, the time for bringing an appeal against the recommendation has expired and no such appeal has been brought, the employee concerned may bring the claim before the Tribunal and the Tribunal shall, notwithstanding subsection (5) of this section, without hearing the employee concerned or any evidence (other than in relation to the matters aforesaid), make a determination to like effect as the recommendation."
24. Section 8(6)(a) of the Act of 1994 is in identical terms, save that there is no reference to "notwithstanding subsection (5) of this section" because that text has no application to the Act of 1994.
25. It is the submission of the applicant that these provisions of the Acts of 1977 and 1994 are mandatory and once the conditions set forth therein are met, the respondent is obliged to make a determination to the same effect as the recommendation of the Rights Commissioner. The purpose of these provisions is to enable a person who has received a determination from a Rights Commissioner, which has not been appealed and has not been carried out by the employer concerned, to obtain from the respondent an order that enables the successful applicant to enforce the recommendations of the Rights Commissioner.
26. In support of this argument, the applicant places reliance upon the decision of the Supreme Court in Hussein v. Labour Court [2016] 1 I.R. 180. In that case, the employer had failed to comply with the recommendation of the Rights Commissioner, and subsequently sought an order implementing the recommendations before the Labour Court, which granted the order sought. The employer then sought to quash the order of the Labour Court by way of judicial review, on the basis that the notice party had been working without a work permit and his contract of employment was illegal and unenforceable. The provisions whereby the Labour Court made the order that it did, mirrored those at issue in these proceedings. In the course of his judgment in matter, Murray J. stated, at p. 196 - 197, inter alia :-
"Once the objective fact of the existence of that decision is established for the purposes of the particular sections under which the Labour Court is acting and that the employer has failed to comply with it, the Labour Court has no option but to make the decisions which they did…
Accordingly, the Labour Court, in exercising powers under the relevant sections, is not and cannot be concerned with whether the evidence before the Rights Commissioner supported the decision or whether it was the correct decision. It is only concerned as to whether a decision has been made. This is underscored by the fact that each of the sections make it a precondition for the exercise of this particular jurisdiction that no appeal had been brought. Moreover, each section provides that the Labour Court should make this decision without hearing the employer concerned, and adding ‘other than in relation to the matters aforesaid', referring to the objective facts that (a) a decision has been made and (b) it has not been carried out by the employer.
The express provision that the decision may be made without hearing the employer, except on those particular matters, is manifestly because there is no other issue of either fact or law before the Labour Court concerning the merits or otherwise of the decision of the rights commissioner.
Thus, once the Labour Court had objective evidence of a decision and Determination, as quoted above at para. 14, and evidence that the employer had not paid the amount of the award in each case, it was bound to make the decisions which it did pursuant to s. 28(8) of the of the Act of 1997 and s.31(1) of the Act of 2003. It is not permitted to act otherwise under these sections."
27. So, therefore, the applicant argues, the respondent acted ultra vires in entering into a consideration of the merits of the applicant's case and in hearing evidence other than that referred to in s. 8(4)(a) of the Act of 1977, and s. 8(6) of the Act of 1994, and in particular in taking into account the decision of the Labour Court on the appeal of Keegan Precast. The applicant places reliance also on the decision of Barrett J. in Capital Foods Emporium (Holdings) Limited v. Walsh & anor [2016] IEHC 725, in which Barrett J. held that the jurisdiction of the respondent pursuant to s. 8(4)(a) of the Act of 1977, is confined to establishing the existence of the facts set out in that section and that, once those facts are established, the respondent must make a determination to the like effect as the recommendation of the Rights Commissioner.
28. It is submitted, therefore, that the respondent did not have jurisdiction to enter into the kind of inquiry which it did and that in refusing to make a determination to the same effect as the recommendation of the Rights Commissioner, it erred in law and acted ultra vires . Moreover, it is submitted that it took into account considerations which were irrelevant to the decision that it was required to reach pursuant to those provisions of the Act of 1977 and the Act of 1994.
29. Furthermore, the respondent had no power to declare the recommendations of the Rights Commissioner to be ultra vires . The respondent is a creature of statute that can only act within its statutory remit, and that remit does not entitle the respondent to assume the exclusive role of the High Court in assessing the lawfulness of the decisions of a Rights Commissioner.
30. In relation to the repeal of s. 8(4)(a) of the Act of 1977, it is the submission of the applicant that the notice party acquiesced to the jurisdiction of the respondent, and cannot now resile from that position. More than that, the notice party urged the respondent to engage in a lengthy hearing concerning the validity of the recommendations of the Rights Commissioner. The applicant relies upon the decision of O'Caoimh J. in the case of Burns v. Early & Anor [2002] IEHC 122, in which case the applicant sought judicial review of an order sending him forward for trial in the Special Criminal Court on the basis that he had not been validly returned before the District Judge in accordance with the provisions of the Criminal Justice Act 1999. O'Caoimh J. refused the applicant relief on the basis of his acquiescence in the proceedings and stated at p. 18 of his decision:-
"… it was always open to the applicant to argue before the District Court that the Act of 1967 should apply rather than the provisions of the Act of 1999 and furthermore he was in a position to challenge the jurisdiction of the Special Criminal Court at the time of or prior to being arraigned before that Court. Accordingly, I believe that it is possible to apply the term ‘retrospective acquiescence' to the mode of trial in this case. I am quite satisfied that the applicant elected to allow his trial to proceed before the Special Criminal Court and pleaded before that Court where it was open to him, if he so wished, to raise a preliminary plea to jurisdiction, before that Court. I am satisfied that the applicant freely elected to accept the jurisdiction of the Special Criminal Court to try him and on this basis, I am satisfied that the applicant is precluded by that election from claiming that the Special Criminal Court lacked jurisdiction."
31. It is further submitted that the notice party, at no time sought to challenge the jurisdiction of the respondent, to consider an application for the implementation of recommendation of the Rights Commissioner. Nor did the notice party raise any plea concerning the jurisdiction of the respondent within these proceedings. The point was raised by the notice party for the first time in making submissions in these proceedings.
32. It is submitted that in any case since the applicant had commenced his claim for redress under the Act of 1977, prior to the commencement date of the WRA (which was 1st October, 2015), and since the Rights Commissioner made his recommendation on the day prior to the same commencement date, the applicant had an acquired or accrued a right to apply for implementation of the recommendation in his favour, prior to the repeal of s. 8(4)(a) of the Act of 1977. It is submitted that that right was preserved by the operation of s. 27 of the Interpretation Act 2005, which provides, inter alia , that where an enactment is repealed, the repeal does not affect any right, privilege, obligation or liability acquired, accrued or incurred under the enactment, and nor does it prejudice or affect any legal proceedings pending at the time of the repeal in respect of any such right, privilege, obligation or liability.
33. Insofar as the notice party makes a similar submission as regards the recommendation of the Rights Commissioner under the Act of 1994, it is submitted that the rights of the applicant in that regard, including the right to enforce recommendation of the Rights Commissioner, in accordance with the provisions of the Act of 1994, were preserved by s. 52(3) of the WRA, which provides as follows:-
"Subject to section 53, the amendment effected by this section of the enactments specified in column (3) of Part 1, and column (3) of Part 2, of Schedule 7 shall not apply in relation to complaints or disputes made, presented or referred to a rights commissioner or the Employment Appeals Tribunal under any such enactment before the commencement of this Part."
34. Since s. 8 of the Act of 1994 is one of the enactments specified in Part 1 of Schedule 7 of the Act of 2015, it is submitted that the entitlement of the applicant to enforce the recommendations of the Rights Commissioner in accordance with the system for enforcement of such recommendations as originally provided for by the Act of 1994, remains intact.
Pleadings and Submission of Notice Party
Pleadings
35. The principal pleading of the notice party is to the effect that the applicant is not entitled in law to recover twice from two different parties, in respect of events arising out of the same set of circumstances. The notice party claims that the applicant has obtained determinations in his favour from the Labour Court which meet all of his statutory entitlements arising out of the termination of his employment and other entitlements under employment law legislation, and the applicant should not be entitled to recover from the notice party in respect of the same reliefs.
36. It is pleaded that the applicant's employer was Keegan Precast, and not the notice party and it is further pleaded that the applicant accepted that this was the case during the hearing before the Labour Court (the applicant denies that he accepted this at that hearing). It is pleaded that the acceptance before the Labour Court that Keegan Precast was his employer, and the subsequent application seeking to enforce recommendations against the notice party before the respondent, while knowing that the notice party was not his employer, is evidence of the applicant knowingly misleading the respondent and the notice party.
37. It is further pleaded that the applicant acquiesced in the waiver of the recommendations made against the notice party by virtue of his acceptance as to the identity of his employer at the Labour Court hearing, and also by virtue of his silence in respect of the existence of the recommendations made by the Rights Commissioner against the notice party, until the notice party was out of time to appeal those recommendations. It is pleaded that the notice party was not the applicant's employer and has not been since 2011.
38. It is pleaded that neither Keegan Precast nor the notice party were aware that identical recommendations were made by the Rights Commissioner as against both companies, until the applicant sought to enforce those recommendations by way of application to the respondent.
39. It is further pleaded that the notice party did not appeal the recommendation of the Rights Commissioner in relation to his recommendation pursuant to the Act of 1997, for the same reason i.e. it was unaware of that recommendation. It followed that when the Labour Court determined that that recommendation should be implemented, the notice party did not object because that determination was made without an oral hearing and the notice party had no opportunity to object to same.
40. It is pleaded that the applicant is not entitled to enforce the determinations of the Rights Commissioner as against the notice party, and that the obligations of the respondent, to implement a recommendation of the Rights Commissioner only arose in relation to recommendations that are, prima facie valid. The recommendations of the Rights Commissioner as against the notice party were not prima facie valid in circumstances where, the Labour Court had, on appeal, considered identical facts and findings pertaining to the applicant and Keegan Precast and issued decisions contradicting the recommendations of the Rights Commissioner in that regard. Accordingly, it is denied that the respondent acted ultra vires its powers or unlawfully in its refusal to implement the recommendations of the Rights Commissioner in respect of the notice party.
41. Finally, it is pleaded that the relief sought by the applicant is discretionary and that having regard to the conduct of the applicant in respect of the totality of the claims pertaining to the notice party and Keegan Precast, it is not just or proper for the claimant to recover against two parties for the same event and/or to take advantage of a procedural flaw.
Submissions
42. It is submitted that the Rights Commissioner should not have issued recommendations against two parties arising out of the same set of facts and that even if such a course of action was possible, then it could never have been Rights Commissioner's intention that the applicant would have the benefit of both recommendations against each party and be permitted to receive what amounts to double compensation arising from the same set of facts.
43. It is submitted that the respondent acted lawfully and within its jurisdiction in hearing evidence from the notice party that Keegan Precast was, at all times, the employer of the applicant. Accordingly, the respondent was entitled to hear evidence regarding the matters specifically referred to in s. 8(4)(a) of the Act of 1977, in relation to the recommendation of the Rights Commissioner and the unusual circumstances of the case in which identical recommendations were made against two companies, and in circumstances in which the notice party maintains that it was not the employer of the applicant. The respondent, therefore, was acting within jurisdiction when hearing evidence that the "employer concerned" for the purpose of s. 8(4)(a) of the Act of 1977 was Keegan Precast and not the notice party, and that that company had brought an appeal against the recommendations made against it, which had been determined by the Labour Court. It is submitted that the Rights Commissioner issued two decisions because he was unable to determine which party was the correct employer.
44. It is further submitted that the actions of the Rights Commissioner in issuing two identical sets of recommendations were ultra vires the Rights Commissioner. He did not have statutory power to make two decisions arising out of the same cause of action an arising out of the same facts, in particular in circumstances where the notice party was not the applicant's employer.
45. The notice party relies upon the so-called doctrine of collateral fact as enunciated by the House of Lords in the case of Anisminic v. Foreign Compensation Commission and Another [1969] 1 AER 208. In that case, the legislation with which the proceedings were concerned contained a provision that stated that the "the determination by the Commission of any application made to them under this Act shall not be called into question in any court of law".
46. In the course of considering the scope and effect of this statutory provision, Lord Reid stated at p. 213:-
"It is a well established principle that a provision ousting the ordinary jurisdiction of the court must be construed strictly—meaning, I think, that, if such a provision is reasonably capable of having two meanings, that meaning shall be taken which preserves the ordinary jurisdiction of the court."
47. In a passage relied upon by the notice party, he also stated:- "If the draftsman or Parliament had intended to introduce a new kind of ouster clause so as to prevent any enquiry even as to whether the document relied on was a forgery, I would have expected to find something much more specific than the bald statement that a determination shall not be called in question in any court of law. Undoubtedly such a provision protects every determination which is not a nullity. But I do not think that it is necessary or even reasonable to construe the word ‘determination' as including everything which purports to be a determination but which is in fact no determination at all."
48. In this case, it is submitted that the recommendations issued by the Rights Commissioner against the notice party were "no determination at all" as the Rights Commissioner had no statutory power to make two decisions in circumstances where not only did he invalidly issue two identical recommendations, arising out the same cause of action but he did so in circumstances where the notice party was not the applicant's employer.
49. The notice party also submits that the applicant is attempting to effect a procedural impropriety in seeking to compel the respondent to enforce a duplicate recommendation of the Rights Commissioner against the notice party, in relation to a cause of action which the employer has already appealed and on which the Labour Court has already decided. This is an abuse of process, and the court should not permit such conduct. The notice party refers to the decision of Lord Denning in Goldsmith v. Sperrings Ltd [1977] 2 AER 566, where he stated at p. 574:-
"In a civilised society, legal process is the machinery for keeping and doing justice. It can be used properly or it can be abused. It is used properly when it is invoked for the vindication of men's rights or the enforcement of just claims. It is abused when it is diverted from its true course so as to serve extortion or oppression: or to exert pressure so as to achieve an improper end. When it is so abused, it is a tort, a wrong known to the law. The judges can and will intervene to stop it. They will stay the legal process, if they can, before any harm is done."
50. Moreover, insofar as the applicant is seeking to enforce an order that requires his reinstatement as an employee to a party that was not his employer, the proceedings can confer no benefit on the plaintiff and the applicant should therefore not succeed. In this regard, reliance is placed upon the case of McSorely v. O'Mahony (Unreported, High Court, Costello J., 6th November, 1996).
51. The applicant also submits that judicial review is a discretionary remedy and relies on the decision of the Supreme Court in Noonan (orse Hoban) v. Director of Public Prosecutions [2008] 1 IR 445 in which Denham J. (as she then was) stated:-
"An order of judicial review is ultimately a matter of discretion for the court. This is so because of the fundamental nature of such a process - it is a supervisory role of lower courts and administrative bodies."
52. It is submitted that the conduct of the applicant, in attempting to obtain relief twice out of the same set of circumstances is unmeritorious. The applicant refers to and relies upon the decision of the Supreme Court in The State (Abenglen Properties) v. Corporation of Dublin [1984] I.R. 381, in which case the Supreme Court refused the applicant the relief sought i.e. to quash a grant of an outline planning permission because it considered that the purpose of the application for certiorari in that case "was not, primarily to correct a grievance which [the applicants] had suffered as a result of a process alleged to have been without legal authority but to avail of the alleged irregularity in order to obtain a benefit not contemplated by the planning code".
53. The notice party argues that the case of Hussein may be distinguished because in that case, the correct employer was identified and there was no potential for unjust and/or improper recovery on the part of the employee. On the other hand, in this case, the respondent was presented with a case, the facts of which had already been decided and adjudicated upon by the Rights Commissioner and the Labour Court.
54. The notice party further argues that these proceedings constitute an abuse of process on the part of the applicant on the grounds of the rule in Henderson v. Henderson [1843] 3 Hare 100. In the words of that case, the notice party has been "twice vexed in the same matter", and this is contrary to the rule in Henderson v. Henderson .
55. As regards the applicant's claim for order of mandamus , the notice party argues:-
(i) the language of the statutes in question does not support an order of mandamus ;
(ii) mandamus can only properly lie in circumstances where an inferior body declines jurisdiction, not where an inferior body hears a case and then errs, as is alleged by the applicant in this case. In this case, there was no refusal of jurisdiction on the part of the respondent; and
(iii) a serious risk of harm had to be established as a matter of probability and not as a mere speculative prediction from mandamus to lie. There can be no question of harm in this case in circumstances where the applicant already has the benefit of a determination of the Labour Court as against Keegan Precast.
56. Finally, it is argued on behalf of the notice party that the respondent did not have jurisdiction to entertain the application to implement the recommendations of the Rights Commissioner. This is, perhaps, a somewhat curious submission for the notice party to make, having regard to the decision actually made by the respondent.
57. The submission arises out of amendments made to both the Act of 1977 and the Act of 1994, pursuant to the WRA, and also pursuant to further amendments to all of this legislation made by the NMWA.
58. It appears that initial amendments made to the Act of 1977 by s. 80(2) of the WRA, contained a preservation provision that would have had the effect of requiring any complaints or appeals lodged with the respondent prior to 1st October, 2015, to be processed and determined by the respondent after that date. However, before that section came into effect, it was rescinded by s. 14 of the NMWA, but without the "preservation provision" in respect of cases commenced before 1st October, 2015. Accordingly, it is submitted that at the time the applicant brought an application to the respondent to implement the decision of the Rights Commissioner in June, 2016, the jurisdiction to hear such applications had been transferred to the District Court pursuant to s. 43 of the Act of the WRA. Furthermore, as there is no time limit on such actions, the applicant may still bring his action to the District Court.
Discussion and Decision
59. At the outset of this discussion, I think it is appropriate to observe that neither the applicant nor the notice party have placed any direct evidence before the Court in these proceedings, i.e. the applicant has sworn no affidavit and nor has a representative on behalf of the notice party. In one way, this is not surprising, because at the heart of these proceedings is a legal point concerning the jurisdiction of the respondent to make the decision that it did. However, the background facts can hardly be considered irrelevant and in the course of the hearing of these proceedings, both parties, to one extent or another, placed reliance on matters of fact, in respect of some of which the parties are not in agreement.
60. So, therefore, the parties do not appear to be in agreement as to the important question as to the identity of the applicant's employer. The notice party maintains that it was Keegan Precast. The applicant has been silent on the issue, but by the fact of claiming the same reliefs from both Keegan Precast and the notice party, he suggests that both were his employers, or alternatively, he suggests that he does not know, and that the safest course is to issue claims against both companies.
61. The notice party maintains that at the hearing before the Labour Court, the applicant accepted that Keegan Precast was his employer, and further accepted that the earnings placed before the Labour Court represented, in full, his remuneration from that employer. This assertion is repeated throughout the pleadings and submissions made on behalf of the notice party. However, it is denied by the applicant. There is no evidence of this before the Court either way, and so it is not possible to adjudicate on the issue one way or another.
62. Arguably it is no function of the Court to do so for the purposes of arriving at a conclusion as to whether or not the respondent erred in law or acted ultra vires , but it is not difficult to see the relevance of these matters. If the applicant acknowledged that he had one employer only i.e. Keegan Precast, and one income (from that company), the amount of which was agreed at the Labour Court hearing, then it is difficult to see how the applicant could be entitled to succeed with any claim concerning his employment rights as against the notice party, and it would follow that the Court could not exercise its discretion, in a judicial review application such as this, in favour of the applicant, even if it is apparent that the respondent has erred in law and acted ultra vires . The factual background against which the proceedings are brought is therefore of some considerable relevance to the determination of the question as to whether or not the applicant has engaged in an abuse of process by bringing and persisting with two claims against two different companies in connection with the breach of his employment rights and by seeking to enforce determinations made in his favour against both companies, as well as the related issue as to whether or not the Court should, if satisfied, that the respondent erred in law and acted ultra vires , exercise its discretion in favour of the applicant.
63. I will return to these issues in due course, but it is perhaps more appropriate to start consideration of the issues raised in these proceedings with the question as to whether or not the respondent had jurisdiction at all to entertain a claim to implement the recommendations of the Rights Commissioner having regard to the changes in legislation brought about by the WRA and the NMWA. Somewhat unusually, the latter amended the former even before it came into effect. In any case, the effect of this extraordinary labyrinth of legislation is that functions formerly undertaken by Rights Commissioners are now undertaken by adjudication officers. Appeals from decisions of adjudication officers are dealt with in s. 43 of the WRA which confers jurisdiction on the District Court to hear such appeals. While there are significant similarities between the jurisdiction conferred in the District Court by s. 43(1) of the WRA, and the functions previously conferred on the respondent by s. 8(4)(a) of the Act of 1977, they are not identical. Section 43(1) provides:-
"43. (1) If an employer in proceedings in relation to a complaint or dispute referred to an adjudication officer under section 41 fails to carry out the decision of the adjudication officer under that section in relation to the complaint or dispute in accordance with its terms before the expiration of 56 days from the date on which the notice in writing of the decision was given to the parties, the District Court shall—
(a) on application to it in that behalf by the employee concerned or the Commission, or
(b) on application to it in that behalf, with the consent of the employee, by any trade union or excepted body of which the employee is a member,
without hearing the employer or any evidence (other than in relation to the matters aforesaid) make an order directing the employer to carry out the decision in accordance with its terms."
64. Moreover, s. 43(2) of the WRA confers on the District Court an additional power not previously conferred on the respondent. It provides- "(2) Upon the hearing of an application under this section in relation to a decision of an adjudication officer requiring an employer to reinstate or reengage an employee, the District Court may, instead of making an order directing the employer to carry out the decision in accordance with its terms, make an order directing the employer to pay to the employee compensation of such amount as is just and equitable having regard to all the circumstances but not exceeding 104 weeks' remuneration in respect of the employee's employment calculated in accordance with regulations under section 17 of the Act of 1977."
65. In its original form, s. 80(1)(g) of the WRA amended s. 8 of the Act of 1977, and in particular, repealed s. 8(4)(a), but there was a saver clause at s. 80(2) of the WRA, which stated that amendments to the Act of 1977 effected by s. 80(1) of that Act shall not apply in relation to a claim for redress under that Act before the commencement of the section.
66. While the section was due to be commenced on 1st October, 2015, before the commencement became operative, s. 80(1)(g) of the WRA (which, it will be recalled repealed s. 8(4)(a) of the Act of 1977) was repealed in its entirety by s. 20 of the NMWA. However, s. 14 of the NMWA then repealed s. 8(4)(a) of the Act of 1977, but without including a saver in relation to previous claims, as was provided by s. 80(2) of the WRA. So, the upshot of all of this, it would appear, is that with effect from 1st October, 2015, the respondent no longer had jurisdiction to entertain an application pursuant to s. 8(4)(a) of the Act of 1977. The fact that it did so in this case in late 2016/early 2017, is presumably owing to a presumption that it still had jurisdiction to do so by reason of the saver clause contained in s. 80(2) of the WRA, but it seems to me that the effect of that clause was neutered by reason of the subsequent amendments brought about by the NMWA, as set forth above. This surely highlights, if highlighting were needed, the pitfalls of legislation by amendment after amendment.
67. As to the Act of 1994, this too was the subject of amendments introduced by both the WRA and the NMWA. Again, it is convoluted. However, s. 52(1) of the WRA deleted s. 8(6) of the Act of 1994 entirely. Part 1 of Schedule 7 to that Act provides that the following text is now substituted for s. 8 of the Act of 1994: "a decision of the Labour Court under section 44 of the Workplace Relations Act 2015, on appeal from a decision of an adjudication officer referred to in section 7, shall affirm, vary or set aside the decision of the adjudication officer."
68. However, s. 52(3) of the WRA provides a saver clause in relation to claims made, presented or referred to a Rights Commissioner or the respondent before the commencement of that part of the Act. So, therefore, it appears, that the old regime applies as regards claims made under the Act of 1994, i.e. s. 8(6) remains applicable to claims advanced under s. 7 of the Act of 1994.
69. So, therefore, when the applicant applied to the respondent to implement the decision of the Rights Commissioner in relation to his claim as against the notice party under the Act of 1977, the respondent no longer had the power to entertain that application, but it did have the power to entertain the application to implement the recommendation of the Rights Commissioner in relation to the claim made under the Act of 1994. Of course, in its decision, it made no reference at all to the latter claim and I will return to this point.
70. It is clear that both parties acquiesced in the determination of both applications by the respondent. Almost certainly this was an error on the part of both parties, as it must have been on the part of the respondent. But by the time that these proceedings came on for hearing, one, other or both of the parties must have realised the error and neither sought to redress the problem. So not only did they acquiesce at the time, inadvertently, but they also acquiesced subsequently. Moreover, s. 43(1) of the WRA is in substantially the same terms as s. 8(4)(a) of the Act of 1977, save that it is the District Court and not the Labour Court to whom the application is made. Granted, there is significant discretion conferred on the District Court pursuant to s. 43(2) that was not conferred on the respondent under the Act of 1977, and I will return to this issue later but the point is that the nature of the application to the District Court to implement a recommendation of an adjudication officer under the new regime is very similar to the nature of the application to the respondent to implement a recommendation of a rights commissioner under the old regime.
71. At this juncture, it would seem to me to be verging on the absurd for this Court to declare that the decision of the respondent should be set aside for want of jurisdiction (on these grounds), and in any case this argument was not pleaded by either party in these proceedings. It was advanced as a point made by way of submission only. For these reasons, I do not consider it appropriate to quash the order of the respondent on the grounds that it no longer had the statutory power to entertain the application before it when it did so. I consider that I am entitled to take this course in the exercise of my discretion and having regard to the decision of O'Caoimh J. in Burns v. Early & Anor .
72. I turn next to consider the question to whether or not the respondent erred in law or acted ultra vires in refusing the relief sought by the applicant. Of course, it goes without saying in light of what I have said above that it did err in law in entertaining the application at all, but having reached the conclusion that I have above, I must now deal with this issue on the basis of the statutory framework within which the respondent and the parties believe they were operating i.e. s. 8(4)(a) of the Act of 1977. On this question, however, I do not believe that there can be any doubt at all but that the respondent both erred in law and acted ultra vires its powers under s. 8(4)(a) of the Act of 1977. The provisions of s. 8(4)(a) are very clear and do not lend themselves to any alternative interpretation, such as the interpretation contended for by the notice party. The "employer concerned" is clearly the employer in respect of whom the Rights Commissioner has made recommendations i.e. the notice party. To suggest that it could mean a sister company - in this case Keegan Precast - is to ignore the two distinct corporate personalities of the notice party and Keegan Precast. Nor is there any doubt at all as to the meaning of "other than in relation to the matters aforesaid". This is a clear reference to the matters of which an applicant must satisfy the respondent when bringing an application before the respondent for the purpose of obtaining a determination of the respondent, to the intent of enforcing the decision as against the employer concerned. The "matters aforesaid" of which the respondent (under the old scheme) required to be satisfied were, as identified by Barrett J. in Capital Foods Emporium :-
"(i) that there is an existing determination of a rights commissioner in favour of a particular person who has brought a claim for redress, (ii) that the recommendation has not been carried out by the employer, (iii) that the time for bringing an appeal against the said recommendation has expired, and (iv) that no appeal has been brought within the time aforesaid."
73. This interpretation is also consistent with the decision of the Supreme Court in Hussein . The notice party attempts to distinguish Hussein on the basis that the Rights Commissioner's recommendation in this case was void ab initio and also on the basis that there was another identical recommendation against Keegan Precast, which had been appealed. It is submitted that whereas in Hussein , the correct employer was identified at all times and there was no potential for unjust and/or improper recovery on the part of the employee, in this case, the respondent was presented with a case the facts of which had already been decided and adjudicated upon by other statutory tribunals, that of the Rights Commissioner in the first instance and the Labour Court on appeal. Therefore, it is submitted, the respondent was faced with no one but two issues of res judicata in circumstances where the recommendations of the Rights Commissioner against the notice party was deemed to be res judicata as he had already determined the identical case against Keegan Precast, and then, secondly, there was an attempt to implement the recommendations of the Rights Commissioner against the notice party before the respondent.
74. While it is true that the facts of the two cases are very different, the interpretation of the statutory provision should be the same in all cases. The notice party may not like the decision of the Rights Commissioner, but it manifestly incorrect to say that it was void ab initio . If the notice party considered that to be the case, it should have, at least, attempted to bring forward an application to quash that decision by way of judicial review, even if the time for doing so had expired by the time it became aware of the decision. There is provision in the Rules of the Superior Courts to apply for leave to bring such late applications. But one way or another, as a matter of law, the decision of the Rights Commissioner remains undisturbed.
75. Nor is it correct to say that the matter before the respondent was res judicata . This argument is also based upon the premise that there is no legal distinction between the two corporate entities, Keegan Precast and the notice party. They are quite clearly two different legal entities, subject to the same laws as everybody else, who may sue and be sued in their own names.
76. On the other hand, there can hardly be any doubt as to the reason why the respondent made the decision that it did. It heard evidence (which it was precluded by statute from hearing) and formed the conclusion that the applicant was attempting to recover twice in respect of the same wrongs on the part of his employer, whichever of the parties was his employer. Having heard that the applicant was awarded the sum of €42,000 in respect of his claim for unfair dismissal by the Labour Court, the respondent clearly decided that he could not make a determination in the same terms as a Rights Commissioner, which would lead to double recovery on the part of the applicant.
77. In order to arrive at the conclusion that it did, the respondent relied upon the terms of s. 8(3) of the Act of 1977 which states:-
"(3) A rights commissioner shall not hear a claim for redress under this Act if—
(a) the Tribunal has made a determination in relation to the claim, or
(b) any party concerned notifies the rights commissioner in writing within 21 days of giving to the employer pursuant to subsection (2) of this section, the copy of the notice referred to in that subsection and relating to the claim that he objects to the claim being heard by a rights commissioner."
78. The respondent in reliance on this subsection, decided that Rights Commissioner erred because he himself had already made a decision in favour of the applicant in relation to the claim as against Keegan Precast. However, there are a number of problems with this course of action. Firstly, the applicant is correct in stating that the respondent has no jurisdiction to determine that a Rights Commissioner had acted ultra vires . That is a jurisdiction that resides only with the Superior Courts. Secondly, it is clear from the terms of s. 8(3) itself, that it is addressed to a Rights Commissioner (and not the respondent) who is precluded from hearing a claim for redress in one of two sets of circumstances, the first of which is where the respondent has already made a determination in relation to the claim. That obviously had not occurred, even though it must be acknowledged that the Rights Commissioner himself was simultaneously making an identical determination in favour of the applicant against the notice party.
79. Regardless as to its reasons for doing so, I do not think that there could be a clearer case of a statutory body acting outside the scope of the powers conferred upon it by statute, and that in doing so, it erred in law and acted ultra vires . In the ordinary course of events, such a conclusion would lead to an order of certiorari quashing a decision of the respondent, and, in all probability, an order directing the referral of the application to the District Court for determination pursuant to s. 43(1) of the WRA. But this is not the ordinary course of events.
80. It is well established that the remedy of judicial review is a discretionary remedy. It will not be used to perpetrate an abuse of process or to bring about an unjust result, such as unjust enrichment. I return now to the factual background giving rise to these proceedings. There can hardly be any doubt but that the foundations of the difficulties that have arisen in these proceedings were laid by either or both of the notice party and Keegan Precast. The applicant claims to have commenced employment with the notice party in 2005. The decision of the Rights Commissioner states that the applicant's representative informed the Rights Commissioner that no contract of employment was issued until 10th December, 2008. However, that is stated on both recommendations of the Rights Commissioner in relation to each company. No copy of the contract of employment was exhibited to the affidavits filed for the purposes of these proceedings. Subsequently, according to the solicitor for the notice party, there was a transfer of the undertaking of the notice party to Keegan Precast arising out of which, as a matter of law, the employment of the applicant transferred to Keegan Precast. Again, there is no documentation exhibited to prove this occurrence. If the notice party and/or Keegan Precast were adhering at hearing to their legal obligations, the precise circumstances of the applicant's employment i.e. the identity of his employer and his terms and conditions of employment would be clear and documented.
81. The solicitor for the applicant exhibits certain documentation to which I have referred at para. 4 above, by means of which it appears the applicant sought certain information about his employment prior to advancing his claims. According to the applicant's solicitor, Mr. Grogan, no reply was received to that correspondence. Against that background, it would be difficult to be in any way critical of the applicant for launching two claims, one against each company, lest he be faced with an answer to a claim brought against one party only that it had been brought against the wrong employer, by which time he might well have found himself out of time to issue proceedings against the other company.
82. I am satisfied that neither Keegan Precast nor the notice party were represented at the hearing before the Rights Commissioner. While I do not know whether or not this was the first date on which the matter was scheduled for hearing, if it was the first date, it is somewhat regrettable that the Rights Commissioner did not accede to the adjournment request. The fact that neither company was in attendance nor represented at this hearing is the second major contributory factor to the problems giving rise to these proceedings.
83. I am fully satisfied that the person who did attend from the office of the solicitor acting on behalf of the companies, attended in the capacity of a note-taker only. During the course of the proceedings, counsel for the applicant made the point that the notes taken were not exhibited, and that the Court should draw an inference from that fact. By this, I assume that it is mean that I should draw the inference that the note may well have made it clear that there were two separate claims being pursued, one against each company, which would have put the solicitors for the notice party and Keegan Precast on notice that two decisions could be expected from the Rights Commissioner. However, this is too speculative. I really do not think there is any doubt that neither the notice party nor solicitors became aware of the fact that two decisions had issued until the applicant made application to the respondent to implement the decision of the Rights Commissioner, insofar as it concerned the notice party. Unless it was accepted by Keegan Precast and/or the notice party that the applicant did in fact have two jobs, one with each company, there is no logical reason to explain (other than oversight) why the notice party did not appeal the decision of the Rights Commissioner in circumstances where Keegan Precast did so.
84. This then brings me to that very question as to whether or not the applicant is in fact contending that he had two separate jobs at the same rate of remuneration with each company. I do not believe there is any doubt that the applicant is not advancing such a claim. If he were advancing such a claim, having regard to the centrality of the issue in these proceedings, I have no doubt that either he or his solicitor would have said so on affidavit, not least because both the pleadings of the notice party and the submissions are replete with references to the applicant seeking to claim twice for the same events.
85. In response to this allegation during the course of this hearing, counsel for the applicant said that he was not attempting to do so. She submitted that, having obtained the maximum that he could do from the Rights Commissioner, i.e. a recommendation for reinstatement, the applicant was entitled to seek implementation of that remedy as against the notice party, but that if that is implemented (whether by actual reinstatement or by payment of compensation up to the maximum amount recoverable) the applicant would then, in effect, credit any payment received from Keegan Precast against whatever liability is determined as against the notice party. However, this was the first time such a proposition was advanced on behalf of the applicant. The letter of his solicitors of 9th September, 2016, referred to at para. 15 above makes it very clear that the applicant was, at that point in time, seeking to recover, in full, the amount awarded to him as against Keegan Precast from the Labour Court, in addition to the implementation of the recommendation of the Rights Commissioner as against the notice party. In short, I really do not believe that there can be any doubt but that the applicant, having gained a very significant litigation advantage, sought to exploit that advantage to the full.
86. The applicant, on the other hand, was fully aware of the position at all times. While the applicant disputes that, at the hearing of the appeal before the Labour Court, he accepted that Keegan Precast was his employer, and that he accepted the figures put forward by Keegan Precast at that hearing in relation to his remuneration, it is accepted by the applicant that no mention was made at all at this hearing of the other claim against the notice party, or the intention of the applicant to pursue the recommendation of the Rights Commissioner, before the respondent, in relation to that other claim. It is difficult to avoid the conclusion that this was a deliberate strategy devised by the applicant and his solicitors who were representing him at the time. Whatever about the earlier errors and omissions on the part of the notice party and Keegan Precast that laid the foundations for these proceedings, this strategy became the driving force for the proceedings from that time onwards.
87. It hardly needs to be said that, not only is there nothing at all wrong with a litigant adopting the strategy that is most likely to deliver the best result obtainable, one would expect a litigant to adopt a strategy designed to achieve that end. But a strategy that includes staying silent at a hearing before a forum (in this case, the Labour Court) in relation to a parallel set of proceedings seeking the same relief, in circumstances in which the applicant and his advisors are surely aware that there has been an oversight of some kind, can hardly be commended. It is too late at the hearing of these proceedings for the applicant to volunteer that he never intended to claim both reliefs, but merely to seek the greater of the two options available to him. As I have said above, I fully understand why the claimant made two claims from the outset. However, once it became apparent that the two claims were now on a different path, the applicant at some point had an obligation to choose as between the two remedies. If he was uncertain about which remedy to pursue, it was open to him to communicate with the solicitors acting on behalf of the companies and to invite confirmation as to which of those companies accepted responsibility for the applicant's employment; if there was disagreement between the parties in this regard, that could then at least be explored, with a view to reaching agreement on the best way forward. But by staying silent on the issue, and by doing so very deliberately, the applicant exacerbated a problem that had its origins in the actions and inactions on the part of Keegan Precast and the notice party. He has stuck to a course that if seen through to a conclusion, will result in him obtaining two legally enforceable orders arising out of his unfair dismissal, and other breaches of employment legislation on the part of one or other of the companies, which orders, although against two different corporate entities, arise out of the same set of circumstances. Moreover, it is quite possible that the result of this would be that he would be entitled to receive far more than the maximum amount fixed by the legislature for compensation for unfair dismissal.
88. While, as I had mentioned above, counsel for the applicant informed the court that he did not intend to recover on the double and would credit one award against the other. It is difficult to see how such an outcome can be orchestrated by any order of this Court. Either I grant the relief sought, or I do not. If I grant the relief sought, the order of the respondent would be quashed, and it would, I believe, be necessary to direct that the application be remitted for hearing to the District Court pursuant to s. 43 of the WRA. Section 43(1) obliges the District Court, having heard evidence as to the matters referred to therein and without hearing the employer or any evidence [my emphasis] to make an order directing the employer to carry out the decision of the adjudication officer or, in this case, the Rights Commissioner. That has almost precisely the same effect as an application made under s. 8(4)(a) of the Act of 1977. However, s. 43(2) of the WRA appears to offer an option that has some attraction in the circumstances of this case because notwithstanding s. 43(1), the District Judge is empowered, in cases where there has been an order for reinstatement or reengagement of an employee, not to make such an order and instead to make an order for compensation, in such amount as he/she considers to be "just and equitable having regard to all the circumstances but not exceeding 104 weeks' remuneration". At first glance, this seems tailor-made to the circumstances of this case. In considering whether or not to make an order under s. 43(2) and if so, in what amount, the District Judge could have regard to all of the circumstances of the case, including the award of the Labour Court against Keegan Precast. The problem is that s. 43(1) clearly states that the District Judge shall make an order without hearing the employer or any evidence. Presumably, the qualification on this otherwise mandatory order that is set out in s. 43(2), is for the benefit of an employee who may no longer wish to be reinstated or reengaged.
89. It is difficult to see how s. 43(2) will operate if the District Judge is not entitled to hear or receive evidence of any kind, but it must be borne in mind that this is an enforcement procedure, not a full appeal, either on the merits or as to quantum. In any case, these issues were not teased out or argued in the proceedings before me, and while I have given consideration to making orders of the kind described earlier in this last paragraph, on balance, I do not think that it would be appropriate to do so having regard to these complications.
90. Accordingly, in the very unusual circumstances of this case, notwithstanding that I have found that the respondent acted ultra vires , in the exercise of my discretion, I consider that I should not grant the order for certiorari sought by the applicant, nor any of the other reliefs sought by the applicant, as to do so would be to facilitate the applicant recovering damages twice from a single dismissal from employment. If it seems unfair that this leaves the applicant with the lesser of two remedies, i.e. the compensation for unfair dismissal determined by the Labour Court in the sum of €42,000, as distinct from an order requiring his reinstatement, which may have a greater financial value, then the applicant needs to bear in mind that he could have chosen to apply to enforce the latter and more substantial remedy as against the notice party much earlier than he did, and well in advance of the hearing before the Labour Court. It is also fair to observe that the order of the Labour Court is one made following a full consideration of the merits of the case, and is more likely to represent a fairer outcome for both parties. And finally, on this point, it would surely work a greater injustice to permit the applicant to recover twice in respect of his dismissal.
91. Finally, counsel for the applicant also submitted that the order of the respondent was flawed in that it made no reference at all to the recommendation made by the Rights Commissioner that the notice party should pay the applicant €2,000 arising out of the failure on the part of the notice party to comply with its obligations under the Act of 1994. This is, of course, correct i.e. the respondent did not address this issue in any way. However, I will take this issue into account, as appropriate, when addressing the issue of the costs of these proceedings.
