FULL RECOMMENDATION
SECTION 12 (2), PROTECTED DISCLOSURES ACT, 2014 PARTIES : HSE (REPRESENTED BY COMYN KELLEHER TOBIN SOLICITORS) - AND - BRENDAN DOLAN (REPRESENTED BY MR. MICHAEL KINGSLEY BL INSTRUCTED BY J O S SOLS) DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer Decision No(s) ADJ-00017993 CA-00023195-001.
Background The Court raised the issue of its jurisdiction to hear the appeal and whether the decision of the Adjudication Officer was a decision capable of appeal to the Court under Section 44 of the Workplace Relations Act 2015. On the basis that the Court’s decision on whether the matter was properly before the Court had the potential to dispose of the matter in its entirety, it decided to deal with this matter as a preliminary issue. Both parties made supplementary submissions following the hearing. Position of the Appellant The Appellant submits that the matter on appeal is properly before the Labour Court. The WRC Adjudicator expressly states that she is making a decision in accordance with the relevant redress provision. The Adjudicator’s Report entitled “Adjudication Officer Decision” commences with the statement:
The text of the report contains a section entitled “Decision” which is followed by a statement which says “Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the compliants in accordance with the relevant redress provsions under schedule 6 of that Act,”. The Decision set out thereafter states:-
The WRC Adjudicator states “I must now decide if the contraventions as alleged by the Complainant were ongoing during the cognisable period. The WRC Adjudicator made findings in respect of the claim, having heard evidence over the course of a full day hearing from three witnesses, who were subject to examination and cross-examinations. The WRC Adjudicator made a decision as a result of these findings and held that the actions of the employer did not amount to penalisation. It is submitted that this clearly amounts to a finding in respect of whether the Appellant’s claim is well founded and is a decision for the purposes of Section 41(5). The Appellant disagrees with the Respondent’s assertion that the Adjudicator’s decision in this case was made under Section 41(6) of the 2015 Act. It submits that the decision was made in accordance with Section 41(5) in accordance with the relevant redress provision. The Appellant submits that the WRC Adjudicator did not base her decision on any general power to dismiss, as was the case in Karen Walsh v Dunnes Stores [TED 1923]. In that case the claimant had not pursued her claim at the WRC at all or engaged in the hearing. In the instant case, the WRC Adjudicator heard a full day of evidence and based her decision on her assessment of that evidence. The WRC Adjudicator held and set out in her decision that “acts” which are accepted by both parties to have occurred within 6 months of the referral, are not matters which amounted to penalisation under the Protected Disclosures Act 2014. It is submitted that this finding is a finding on the merits of the case regarding whether the Appellant’s claim is well-founded and therefore is a matter which is appealable to this Court. Without prejudice to the foregoing, the Appellant submits that the contents of Schedule 2 of the 2014 Act outline clear provisions for an appeal of a decision of an Adjudicator in cases alleging a contravention of section 12 of the 2014 Act. The Appellant submits that no reading of that Schedule allows for an interpretation that a decision in respect of whether an allegation is out of time is not appealable to the Labour Court. Position of the Respondent The jurisdiction of the Labour Court to hear an appeal arises in relation to “a decision of an adjudication officer” in proceedings under Section 41 of the 2015 Act. Section 41(5)(a)(iii) sets out the scope of the power conferred upon an Adjudication Officer in coming to a decision on a complaint, where its states that an Adjudication Officer shall :-
Under the “relevant redress provision” for the 2014 Act, it is stated that a decision of an Adjudication Officer shall do one or more of the following, namely:
The language of the above section is mandatory – “shall do one or more of the following...”. On a strict interpretation of the legislative provisions, and in particular Section 41(5) regarding the meaning of “relevant redress provision”, it is arguable that no “decision” was made by the Adjudication Officer as none of the outcomes at (a), (b), or (c), formed part of the decision of the Adjudication Officer. The WRC Adjudication Officer decided that she did not have jurisdiction to hear the complaints as they were out of time. This “decision” was one made pursuant to the provisions of Section 41(6) of the Act. On a strict interpretation of the legislative provisions, the Labour Court would not appear to have a statutory jurisdiction to deal with an appeal from such a decision, as an appeal to the Court lies from a “decision” made in accordance with the relevant redress provisions, i.e. Section 41(5) of the Act. The Respondent submits that section 41(6) does not provide a power for an Adjudication Officer to make a decision and, therefore, the decision made at first instance is not one from which the Workplace Relations Act 2015 provides an appeal to the Labour Court under Section 44. The Respondent relies on Karen Walsh v Dunnes Stores [TED 1923] to support its position, where the Labour Court determined that the appeal before it was “not a valid appeal of a decision of an Adjudication Officer made under the Act of 2015 at section 41.” In that case, the Complainant withdrew her complaint before the WRC and subsequently lodged an appeal to the Labour Court. In Walsh the Court noted that its jurisdiction to hear an appeal of a decision of an Adjudication Officer derives from the statute. The Court noted that this turned on whether the Adjudication Officer did in fact make a decision under the Workplace Relations Act 2015 in accordance with the provisions of Section 7 of the Terms of Employment (Information) Act 1994 (being the “relevant redress provision” in that case). The Court noted that:-
In Walsh the Court found that:
The Respondent submits that the facts in Walsh are dissimilar to the within appeal but submits the same legal issue arises. It submits that if the Labour Court accepts that the decision made by the Adjudication Officer was not a decision made in accordance with the “relevant redress provisions” of the Act, then the consequence would appear to be that it has no jurisdiction to hear the within appeal. The Respondent submits that the decision as made by the Adjudication Officer does not appear to be one which is made “in accordance with the relevant redress provision” as required under Section 41(5)(a)(iii). It is only such decisions which are made in accordance with Section 41(5)(a)(iii) which may be appealed. Relevant law The preliminary matter for determination by the Labour Court relates to the wording of a decision made by the Adjudication Officer at first instance and whether that decision is capable of appeal to this Court. The relevant law for consideration is set out at Sections 41 and 44 of the Workplace Relations Act 2015 and Paragraph 1 of Schedule 2 to the Protected Disclosures Act 2014.
Schedule 2 to the Protected Disclosures Act, 2014, provides redress for contraventions of Section 12(1) of that Act as follows:
Section 41(6) provides as follows:
Findings and Conclusions: The Labour Court’s jurisdiction to hear an appeal of a decision of an Adjudication Officer derives from Section 44(1) of the 2015 Act which provides that, where a party appeals a decision of an Adjudication Officer, the Court shall give the parties an opportunity to be heard and shall make a decision in relation to that appeal. The preliminary issue for the Court to decide in this appeal is whether the decision made by the Adjudication Officer is capable of appeal to this Court. That question turns on whether the Adjudication Officer made a decision under Section 41 the 2015 Act. The first matter considered by the Adjudication Officer at first instance was a preliminary matter relating to her jurisdiction to hear a complaint, having regard to the time limits for submitting claims, set out at Section 41(6) of the Workplace Relations Act 2015. Section 41(6) provides that:
The Appellant submits that the Adjudication Officer made a decision under Section 41(5), rather than Section 41(6) of the Act. The Adjudication Officer made findings having heard from three witnesses, who were subject to examination and cross-examinations, and then made a decision as a result of these findings that the actions of the employer did not amount to penalisation. The Appellant submits that the Adjudication Officer fulfilled requirements under Section 41(5)(i) and (ii) to conduct an inquiry into a complaint and gave parties an opportunity to be heard and to present relevant evidence. The Adjudication Officer made findings and came to a decision about the merits of that complaint. The Court notes that the Adjudication Officer does not expressly state whether the decision made was made in accordance with either Section 41(5) or Section 41(6) of the 2015 Act. However, it is clear that in making that decision the Adjudication Officer was fulfilling obligations set out at Section 41(6) of the Act that an Adjudication Officer, subject to subsection (8), “shall not entertain a complaint” where a contravention occurs outside the six-month time limit set down in the Act. In recording that decision, the Adjudication Officer solely addressed the preliminary matter of time limits and did not invoke the relevant redress provisions specified under the 2014 Act by expressly citing one of the three outcomes listed under Section 41(5). The Court must decide whether this decision is capable of appeal to this Court. The jurisdiction of the Labour Court in this case is clearly set out at Section 44(1)(a) of the 2015 Act which a provides that a party to proceedings under Section 41 may appeal a ‘decision’ of an Adjudication Officer to the Labour Court. Section 44 does not expressly state that such a decision must be confined to one made in accordance with Section 41(5) of the 2015 Act. Section 44(1)(a) simply refers to proceedings under Section 41. The Supreme Court considered the question of whether a determination from the High Court constituted a ‘decision’ capable of appeal to the Supreme Court in the case of Dublin Wellwoman Centre Ltd, Rita Burtenshaw and Caroline McCamley v Ireland, the Attorney General and the Society for the Protection of Unborn Children (Ireland) Ltd 1994 No. 308.
In reviewing the findings made by the Adjudication Officer in the within case on the question of time limits the Court is of the view that it had all the characteristics of a decision. A preliminary issue was raised before the Adjudication Officer, arguments were submitted on behalf of opposing parties, the relevant law was referred to, the Adjudication officer reserved her decision, and then delivered a written judgment in which she gave her determination and the reasons for that determination. The Adjudication Officer’s finding that “acts” that occurred within six months of the referral of the complaint to the WRC are not matters which amount to penalisation under the Protected Disclosures Act 2014 clearly is a finding affecting the interest of one of the parties. In this regard, the within appeal differs from the case of Walsh TED1923, where the Complainant did not proceed with her complaint at first instance and where no enquiry into the complaint or findings of fact took place at all. In the Court’s view, a finding made by an Adjudication Officer that a complaint made under an employment statute is out of time, having conducted a full enquiry into whether or not certain “acts” amount to penalisation, is a decision capable of appeal to the Labour Court. The Court notes that it is not a mandatory requirement that a decision made in accordance with Section 41 must include a declaration that a complaint is “well founded” or “not well founded” in order for that decision to be capable of appeal to the Labour Court. The Adjudication Officer in this case did not expressly declare in her decision that the complaint was “not well founded”. Clearly, an express statement on whether the within complaint was well founded or not would have avoided any ambiguity on the matter. For the reasons outlined above, the Court finds that the decision made by the Adjudication Officer under section 41 of the Workplace Relations Act, 2015, in relation to the within matter, is capable of appeal to the Labour Court.
NOTE Enquiries concerning this Determination should be addressed to Therese Hickey, Court Secretary. |