Anne O'Connell Solicitors | View firm profile
The High Court judgement of Ms Justice Bolger in Padraic Hanley v. PBR Restaurants Ltd t/a Fish Shack Café [2024] IEHC 662 delivered on 19th November 2024 gives clarification to the scope of a de novo hearing before the Labour Court.It may also permit Complainants to change strategy between the WRC hearing and the Labour Court hearing.
Facts: This case was an appeal of the Labour Court decision to the High Court on a point of law. The Appellant had lodged a number of claims including an unfair dismissal claim under section 8 of the Unfair Dismissals Act to the Workplace Relations Commission (“WRC”) on 21st October 2020. The narrative in the WRC Complaint Form stated that there was a breakdown in his relationship with management which he claimed led to a sham redundancy.
The Adjudicator found that the Appellant was self-employed from August 2008 to December 2019 and therefore he did not have the one year’s requisite service to take a claim under the Unfair Dismissals Act. She relied mainly on the ‘mutuality of obligation’ test but did make reference to the enterprise test, contract, control, pay, tax and social insurance.
The Appellant appealed to the Labour Court. He lodged written submissions in advance of the hearing, most of which focused on his employment status from 2008 to December 2019. On the first of three days of hearing before the Labour Court on 23rd June 2022, the Appellant’s representative claimed for the first time that the Appellant was dismissed wholly or partly for having made protected disclosures. This would obviate the need for the Appellant to have one year’s service to claim unfair dismissal. The Appellant’s representative contended that this was part of the factual submissions made in the WRC claim form in relation to the deterioration of the relationship with management leading to his purported redundancy.
The Labour Court invited submissions on whether it had jurisdiction to consider the argument. The Appellant argued that the Labour Court should not deal with the matter as a preliminary point and should hear the evidence in respect of whether or not his dismissal was wholly or mainly on the making of a protected disclosure. The Respondent argued that this was a new head of claim and that the Labour Court did not have jurisdiction to hear it. The Labour Court deemed that it had two preliminary issues to determine, the first in respect of whether it has the jurisdiction to consider the arguments relating to a protected disclosure and, if not, whether the Appellant had the required one year’s service to claim under the Unfair Dismissals Act.
The Labour Court referred to its own decision in Dawn Country Meats Ltd v. Hill which related to the Organisation of Working Time Act. The Labour Court concluded that its jurisdiction under section 44 of the WRC Act is solely that of an appellate body from decisions of the WRC Adjudicators and it has no jurisdiction to act as a court of first instance. It held that it did not have jurisdiction to enlarge the scope of the appeal to allow arguments that were not made at first instance.
The Labour Court then considered the employment status of the Appellant from 2008 to December 2019. It relied on the High Court decision in Minister for Agriculture and Food v. Barry and Others and in particular the mutuality of obligation test. It held that the Appellant was not an employee from 2008 to December 2019 and therefore did not have the one year’s service. The Labour Court’s decision issued on 23rd June 2023.
The Appellant’s grounds of appeal to the High Court were:
- The Labour Court was required to hear the evidence on protected disclosures and not decide on the preliminary issue of his employment status alone.
- The Labour Court erred in law in determining the Appellant was not an employee before December 2019 and in applying a mutuality of obligation test to his situation.
Decision: Ms Justice Bolger addressed both grounds of appeal in her judgement.
In relation to the Labour Court’s jurisdiction to determine a preliminary issue, Ms Justice Bolger referred to the Supreme Court decision in Fitzgibbon v. The Law Society of Ireland and quotes parts of the judgement in which Clarke J. (as he was then) set out what was involved in a de novo hearing and goes on to state –
“In summary, therefore, it seems to me that the use of the term ‘de novo appeal’ or similar terminology, carries with it a requirement that the appellate body exercise its own judgment on the issues before it without any regard to the decision made by the first instance body against whom the appeal lies.”
The Supreme Court decision was after the Labour Court’s decision in Dawn Meats.
Ms Justice Bolger referred to the statutory jurisdiction of the Labour Court in dealing with an appeal of an unfair dismissal decision in s.44(1)(a)(i) of the WRC Act which requires the Labour Court to “give the parties to an appeal an opportunity to be heard by it and to present to it any evidence relevant to the appeal”. Ms Justice Bolger held that the Labour Court erred in law by refusing to hear the Appellant’s evidence and arguments on what he said was his protected disclosure and the reason for his dismissal and such approach was inconsistent with s.44.
Ms Justice Bolger addressed each of the elements referred to in the Labour Court decision and found them not to be in line with s.44 and the nature of a de novo appeal as per the Supreme Court decision in Fitzgibbon. She referred to s.47(1) of WRC Act where a party who did not participate in the WRC hearing could, after paying a fine, appeal the case to the Labour Court and have their case heard for the first time before the Labour Court, which is contrary to what the Labour Court decision referred to.
In particular, Ms Justice Bolger pointed out that the claim that was raised by the Appellant in the Labour Court was not a new claim but was one of the 20 situations referred to under s.6(2) of the Unfair Dismissals Act and therefore still a claim under s.8 of the Unfair Dismissals Act as was heard in the WRC. The fact that it was a different argument under s.6 then that argued before the WRC Adjudicator does not make it anything other than an unfair dismissal claim and referred to the fact that all dismissals are deemed unfair unless proved otherwise by the employer.
The Respondent argued that the potential higher award that may be granted in respect of a dismissal that is wholly or mainly due to a protected disclosure creates a “new jurisdiction” that was not available to the WRC Adjudicator and therefore the Labour Court should not be allowed to hear the protected disclosure argument. Ms Justice Bolger held that the Respondent confused the monetary jurisdiction of the Labour Court under s.7 with its jurisdiction to hear an appeal pursuant to s.44(1) of the WRC Act. She held that the availability of a higher award does not render the underlying claim anything other than a s.8 Unfair Dismissal Act claim.
In relation to the employment status, Ms Justice Bolger applied the Supreme Court decision in The Revenue Commissioners v. Karshan (Midlands) Trading as Dominos Pizza, regardless of the decision having been made after the Labour Court decision that was subject to the appeal. She found that the Labour Court had erred in law by relying on the mutuality of obligation test.
Ms Justice Bolger set aside the decision of the Labour Court and sent it back to the Labour Court for a rehearing of the appeal from the WRC.
Takeaway for Employers:
This High Court decision clarifies the scope of a de novo appeal to the Labour Court and how an employee may change the arguments that he/she wishes to rely upon. However, the claim itself must remain under the same section of the legislation as per the claim before the WRC. As a Respondent has the right to know the case that it has to meet, if such a change occurs in a Labour Court hearing without prior notice, then the Labour Court should give the Respondent time to consider this new argument and possibly put in further written submissions if it so wishes. It should also be noted that sworn evidence from the WRC may still be referred to in the Labour Court and a complete change in argument may result in difficulties for the Complainant in relation to the sworn evidence previously given by him/her.
Authors – Anne O’Connell