EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
John Keith (claimant) UD163/2014
Department of Justice and Equality (respondent)
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr R. Maguire, B.L.
Members: Mr P. Pierce
Mr D. Thomas
heard this claim at Dublin on 25th February 2015
Claimant(s) : In person
Respondent(s) : Glen Gibbons B.L. instructed by Lorraine Williams, Chief State Solicitor's Office, Osmond House, Little Ship Street, Dublin 8
The determination of the Tribunal was as follows:
The name of the respondent was amended to the Department of Justice and Equality as per T2 form.
The respondent made the following preliminary objections:
The Complainant as an office holder does not come within the scope of the EAT' s jurisdiction.
Assuming that the EAT has jurisdiction (which is not admitted), the claim is time-barred.
Both parties handed in written submissions. The Tribunal rose to allow each party an opportunity to consider the submissions of the other. Each party confirmed that they had adequate opportunity to respond to submissions made.
Submissions of the Respondent
Position of Assistant Film Classifier and the Censorship of Films Act, 1992
Counsel for the Respondent submitted that the position that the Claimant held was that of a statutory office, and that the Claimant was not an employee. He relied on the definition of “employee” under section 1 of the Unfair Dismissals Act 1977 as amended:
“employee” means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment and, in relation to redress for a dismissal under this Act, includes, in the case of the death of the employee concerned at any time following the dismissal, his personal representative…”
Counsel on behalf of the Respondent referred to section 2 of the Censorship of Films (Amendment) Act, 1992 which provides for the position that the Claimant held, namely Assistant Censor.Section 2 provides in relevant part:-
"2. (1) (a) The Minister may as occasion requires appoint such, and such number of, persons (who shall be known as Assistant Censors) as he may determine to assist the Official Censor in the performance of his functions and for that purpose to perform, or to perform to such extent as the Official Censor may, subject to any directions that may be given to him by the Minister, determine, the functions (or such of them as the Official Censor may, subject as aforesaid, determine) of the Official Censor.
An Assistant Censor shall be paid, out of moneys provided by the Oireachtas, such remuneration and such (if any) allowances for expenses as the Minister, with the consent of the Minister for Finance, may from time to time determine.
An Assistant Censor shall hold office for such period and upon and subject \ to such terms and conditions as the Minister may determine."
It was submitted that section 2 is therefore clear in establishing the position of Assistant Film Classifier as an assistant to the official censor and that his/her appointment is the prerogative of the Minister for Justice as is the duration of the position and the position's terms and positions, and a person who holds this position is not en employee but rather an office holder.
Counsel went on to submit that historically, office holders were deemed distinct to the traditional master/servant analysis and cited Hogan and Gwynn Morgan, Administrative Law in Ireland (Round Hall, 4111 ed) at para 14-182 in support of his submission:
"The office is the legal form for a "superior" post (which was, in past centuries, even regarded as a property-right of the holder). An office is a position to which certain important duties are attached, usually of a more or less public character, with its holder likely to be better qualified and freer from day-to-day control than a servant. It thus plays a pivotal part in the administration of government, whether at central or local level, or sometimes in the administration of a company or other corporation. In addition Ian office] is created by Act of the National Parliament, charter, statutory regulation, articles of association of a company or a body corporate formed under the authority of a statute, deed of trust, grant or by prescription'. By contrast, the master-servant relationship is usually founded exclusively upon a contract. It should be stressed, though, that even an office-holder may — and usually does — have a contract which fixes a greater part of his conditions".
It was also submitted that while an office-holder may have a contract governing his or her employment, this does not alter the fundamental basis of the position, and he or she remains an office holder. In support of this, the tribunal were directed to Murphy v Minister for Social Welfare  IR 295. The Applicant in Murphy claimed to be an employee but that was rejected, and Blayney J. held:-
"I reject the applicant's first submission. I do not agree that he was employed under a contract of service. His counsel conceded that he was the holder of an office, and I think there is no doubt that he was. The provisions of s. 10 of the Industrial Relations Act, 1946, which set up the Labour Court, make this quite clear…….
It seems to me that Glover's Case  I.R. 388 is no authority for the proposition that the applicant appears to be putting forward, namely, that if he can establish that in addition to holding an office he also has a contract with the Minister, this would result in his employment being under a contract of service. Even though Mr. Glover had a contract Kenny J. pointed out in the passage I have just cited that "the holder of an office does not hold it under a contract". The only effect of Glover's contract was to give him the right toretain his office for a given period. It did not in any way alter the nature of his office."
The distinction between an office holder and the traditional dichotomy between an employee/independent contractor was also commented upon by Edwards J in Minister for Agriculture v Barry  1 IR 215, where he stated:
" ... Quite apart from that, the approach advocated cannot be treated as being of universal application where the issue for determination involves the broader question as to what is the nature of a particular work relationship between two parties, because in certain cases a work relationship is not capable of being defined in terms of a simple choice as to whether it is governed by a contract of service or a contract for services, for example in the case of a statutory office holder. As Stephenson L.J. has correctly pointed out, the relationship may be governed by a third kind of contract or even by no contract at all."
It was therefore, submitted that the position held by the Claimant was that of a statutory office holder and not one as an employee and thus the Complaint chose the wrong forum in which to challenge the termination of his position, without prejudice to the Respondent's view that that the termination was justified and in accordance with the 1992 Act
A Time-Barred Complaint
The Respondent went on to submit that, irrespective of the position that the Complainant once held, the Complainant instituted his complaint outside the statutory time limits. Claims under the Unfair Dismissals Acts must be brought within 6 months of the date of dismissal pursuant to section 8(2) of the 1977 Act as amended. This may be increased, in exceptional circumstances, to 12 months (section 7 of the 1993 Act). It was submitted that the date of dismissal of the Complainant was 12th December 2012 and the date of receipt is 20th December 2013 – clearly outside the 12 month period. Section 7(2) states:
"A claim for redress under this Act shall be initiated by giving a notice in writing (containing such particulars (if any) as may be specified in regulations under section 17 of this Act made for the purposes of subsection (8) of this section) to a rights commissioner or the Tribunal, as the case may be—
within the period of 6 months beginning on the date of the relevant dismissal, or
if the rights commissioner or the Tribunal, as the case may be, is satisfied that exceptional circumstances prevented the giving of the notice within the period aforesaid, then, within such period not exceeding 12 months from the date aforesaid as the rights commissioner or the Tribunal, as the case may be, considers reasonable,
and a copy of the notice shall be given by the rights commissioner or the Tribunal, as the case may be, to the employer concerned as soon as may be
after the receipt of the notice by the rights commissioner or the Tribunal.”
A three pronged test was set out by the EAT in Byrne v PJ Quigley Ltd ELR 2- 5 where the EAT stated the following requirements:
- The exceptional circumstances must be something out of the ordinary or unusual, although it need not be highly unusua
- The exceptional circumstances must have prevented the lodging of the claim within the 6 month period. Thus there must be a causative link between the exceptional circumstance and the failure to lodge the claim.
The exceptional circumstances must therefore have arisen during the initial 6 month period.
It was submitted that, assuming that the Claimant could establish that he held the position of Assistant Film Classifier as an employee (which was not conceded) and assuming that the claim can within the 12 month guillotine (which it was submitted it did not), the onus was on the Complainant to establish exceptional circumstances justifying the delay in instituting a complaint.
It was therefore submitted that the Claimant's claim should be dismissed on these two preliminary grounds.
Submissions of the Claimant
The Claimant submitted that he was employed as an Assistant Censor on 29 November 1993 and terms of a “contract for service” were provided at that time. He was provided with contractual terms. He was convicted in the District Court under section 2 of the Criminal Law (Rape) (Amendment) Act 1990 as amended and given a 9 month custodial sentence. He lodged an appeal immediately.
By letter dated 14 November 2012, the Claimant was dismissed with one month’s notice effective 12 December 2012 by letter on behalf of the Minister for Justice. The Claimant’s solicitor wrote to the Minister for Justice on 19 November 2012 asking him to reconsider the dismissal pending the appeal of the Claimant, and by letter dated 30 November 2012 he was responded to by letter stating that the Minister did not propose to revise his decision.
A further letter was written on behalf of the Claimant dated 14 December 2012 asking that the Minister reconsider. That was responded to on 2 January 2013 acknowledging the letter and stating that it would be brought to the attention of the Minister. There was no further response.
On 26 July 2013, the appeal was heard and the Claimant submitted that on the advice of Senior Counsel he appealed only his sentence and this was commuted to a 2 year suspended sentence.
As a result, it was submitted that the Claimant was depressed which made it difficult to pursue the issue of dismissal. He also felt unable to seek further legal advice because of the legal fees that he had already incurred.
It was submitted that the notice of termination of the position was invalid as only 4 week’s notice was given from the date of the letter rather than 30 days, which would have expired on 14 December 2012.
The Claimant also submitted that his dismissal was unfair as he was not afforded fair procedures, that no sanction other than dismissal was considered and that as he was given notice of dismissal it was therefore not a dismissal for misconduct. It was also submitted that the appeal of the conviction should have been heard before the decision to dismiss was taken, and that it was unclear whether the Minister considered the correspondence on behalf of the Claimant after 2 January 2013.
In response to the submissions of the Respondent, the Claimant submitted that his work had characteristics of an employer/employee relationship. In particular he submitted that he was entitled to claim travel and subsistence allowances, despite the provision of paragraph 6 of the terms of 1993 which stated that he could not, and that provisiosn was made to allow Assistant Censors to work from home from 2006 and were supplied with the necessary equipment and services to do so.
In addition, at some stage before 2000 the Claimant and his colleagues were given paid leave on the basis of hours worked, which the Claimant placed particular emphasis on as it had been excluded in the terms provided to him in 1993.
Therefore, it was submitted that the Claimant was an employee, and was entitled to 8 weeks’ notice under the Minimum Notice and Terms of Employment Acts 1973-2005 having been an employee for more than 15 years. It was therefore submitted that the Notice given was invalid and unfair. In relation to the time issue, the claimant also submitted that he was not aware he could make an application and he was not aware of the time limits involved.
Whether the Claimant is an employee under the Unfair Dismissals Act 1977 as amended
Having considered all of the submissions, the Tribunal finds that the Claimant was an office holder, and not an employee. Though there were contractual terms that were applied to his work, this did not alter the basis of his position. The Tribunal finds that, as set out in Murphy v Minister for Social Welfare  IR 295, the contractual terms did not alter the nature of the Claimant’s office.
Simply because these contractual terms were changed and became more favourable to the Claimant during his tenure does not alter the underlying nature of the position. That position is clearly set out in the Censorship of Films (Amendment) Act 1992. Section 2 (5) explicitly provides that “An Assistant Censor shall hold office for such period and upon and subject to such terms and conditions as the Minister may determine.” The Tribunal accepts that the Claimant may have had a remedy in another forum, but that the jurisdiction conferred on the Tribunal pursuant to the Unfair Dismissals Act 1977 as amended does not extend to office holders. Therefore the Tribunal does not have jurisdiction to hear this claim.
Whether the claim is time barred
Given the finding of the Tribunal in relation to its jurisdiction above, it is not necessary to consider the submissions of the parties in relation to whether the claim is time-barred.
Sealed with the Seal of the
Employment Appeals Tribunal