The Criminal Justice (Spent Convictions and Certain Disclosures) Act 2016

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The Minister for Justice and Equality, Frances Fitzgerald T.D. recently announced the commencement of  the Criminal Justice (Spent Convictions and Certain Disclosures) Act 2016 which provides for a range of minor offences which will become spent after seven years.

Section 5 provides that where a person is convicted of an offence and a number of conditions are satisfied then the conviction may be regarded as a spent conviction. Amongst the conditions include:

(a) The person has reached the age of 18 at the date of commission of the offence in question;

(b) Not less than 7 years have passed since the effective date of the conviction;

(c) the sentence imposed by the court in respect of the conviction wasn’t an excluded sentence (including certain offences under the Road Traffic Acts, the Intoxicating Liquor Act 1988 and the Criminal Justice (Public Order) Act 1994;

(d) the person has served or undergone/complied with any sentence imposed or order made by the court in dealing with the person in respect of the conviction concerned;

(e) No more than one conviction can be regarded as a spent conviction and Section 5 wont apply to a person who has more than one conviction;

(f) Where a person is convicted of two or more offences which are committed simultaneously or arise from the same incident and if a court imposes more than one relevant sentence in respect of those offences, the convictions will be regarded as a single conviction.

Section 6 provides that where a person who has a conviction which is regarded as a spent conviction they cannot be compelled by any rule of law or by the provisions of any agreement or arrangement to disclose that conviction or any circumstances ancillary to it. If a question is put to a person (otherwise than before a court) in relation to the spent conviction, the person can respond in accordance with the fact that the question is not regarded as applying to the spent conviction. In addition the person will not incur any liability or otherwise be prejudiced in law because they did not disclose that they had a spent conviction.

In our next blog post we will look at the various exceptions under the Act and the key provisions affecting the employment relationship.

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Accident at Work – Court of Appeal overturns award to Dunnes Stores employee

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In the recent case of Geraldine Martin and Dunnes Stores (Limerick), the defendant appealed against an award of damages of €67,450 made in favour of the plaintiff on 21st May 2014. Justice Irvine delivered the ruling in this case on 14th March 2016.

Background

The plaintiff was 26 years old when on 10th August 2011 she left her till to replace a 10kg pack of potatoes for a customer. The plaintiff attempted to extract another bag from a pallett in the fruit and vegetable department which was wedged between two adjacent bags of potatoes and sustained injuries as a result.The plaintiff contended in the High Court that she had not been provided with a safe system  of work and that there had been no one at the check out who could assist her.

The trial judge was satisfied that the injury to her arm was caused by trying to remove the bag of potatoes which was wedged. He was also satisfied that insofar as checkout operators might have to respond to customers requests, the defendant had in place a system whereby employees would first seek assistance from staff at or near the checkout and, in default of finding a member so available, would seek backup assistance by deploying the tannoy located in the checkout area. The judge concluded that on the day in question the store was short staffed and the plaintiff could see no one available to assist her. He found that in such circumstances the plaintiff had no alternative but to leave the checkout and go and get the customer’s bag of potatoes herself. He thus found that the plaintiff had not been provided with adequate assistance or a safe system of work. He also concluded that the weight of the bag was excessive and that the attempt to extricate the bag presented a very significant risk of injury and that the lift she was required to carry out was excessive, inappropriate and potentially dangerous. The judge acknowledged that the plaintiff had been trained in manual handling but that they were “very inadequate” in that they did had not address the practicalities of what employees might be expected to lift. He instanced a number of products such as bags of dog food, compost and potatoes and found the defendant negligent in its failure to incorporate within its training programme the practicalities of lifting such products.

He stated

So I am satisfied that the accident which happened to the plaintiff was caused by a dangerous lift and an absence of adequate training in the proper lifting of objects such as this and then the failure of the defendant’s system for providing assistance on the day in question. The plaintiff did her best on the day and I see no evidence of any contributory negligence on her part and it seems to me that the defendants are entirely liable for and responsible for this accident because of their failure in their duty to the plaintiff to provide her with a safe system of work on the day and they are, therefore, obliged to compensate for the full amount for damage.”

Appellant Submission

Counsel on behalf of the defendant contended that the trial judge had erred insofar as the only option available to the plaintiff was to carry out the task of fetching the potatoes herself and that there were a number of options available to the plaintiff including using the tannoy system.As the plaintiff had departed from this system the the defendant could not be held to be in breach of their duty of care or liable as to what later occurred.

As to the trial judge’s finding that the plaintiff’s training had been inadequate, senior counsel submitted that it was wholly unreasonable to expect an employer to train an employee as to how they might go about lifting every potential type of product or object they might have to handle in the course of their employment. This would be unreasonable, impracticable and would impose an unfair burden on an employer. It would involve the employer in trying to identify every potentially difficult product that an employee might potentially have to handle in the course of their duties after which there would have to be given practical training as to how they might carry out any manoeuvre. He also stated that the trial judge ought to have concluded that there was no negligence on the part of the defendant in so far as its training of the plaintiff was concerned. The evidence established that the plaintiff had been trained to identify a dangerous load. The documentation completed by her following her manual handling training evidenced the fact that she should have comprehended the danger of seeking to extricate the bag of potatoes and she should not have attempted it.

Respondent Submission

Senior Counsel for the respondent submitted that the trial judge was quite correct in finding the defendant negligent in its failure to provide adequate assistance to the plaintiff when she was at the till. He submitted that but for that negligence she would not have been faced with the lift which caused her injury. She had no practical assistance on the day in question having regard to the shortage of staff and this created a foreseeable risk of injury, particularly in circumstances where staff on the tills were under pressure and the company policy was to ensure that the customer was served with all due expedition.He maintains that the finding of the trial judge to the effect that the defendant was negligent in failing to adequately train the plaintiff, in practical terms, how to lift a load such as a bag of potatoes or other like heavy product was to fall short of their obligations as the plaintiff’s employer

Legal Principles
Justice Irvine noted that the duty of the employer to their employee is not an unlimited one and that the employer is not to be taken as an insurer of the welfare of their employees as outlined in Bradley v. C.I.E. [1976] I.R. 217.He will have discharged his duty of care if he does what a reasonable and prudent employer would have done in the circumstances. However, their duty is met once they take reasonable and practicable steps to avoid accidents. The judge noted it is not possible to eradicate all risks and accidents.He referred to the Safety Health and Welfare at Work Act 2005 and “Every employer shall ensure, so far as is reasonably practicable, the safety, health and welfare at work of his or her employees.

Decision

The court noted that it was bound by the decision of McCarthy J in Hay v O’Grady [1992] IR 498. He also referred to the fact that there were a number of matters which were not in dispute between the parties namely.

  1. The plaintiff was a loyal and hard working employee and a credible witness
  2. The defendant had in place a system whereby employees could call on the assistance of other members of staff if they required it
  3. The plaintiff was trained in manual handling on a regular basis

Critical to his conclusions on the appeal was the extent of the onus placed on an employer to take due care for the safety and welfare of their employees.In the context of this case he stated it was reasonable to say that the obligation of the defendant was to identify potential hazards likely to affect the safety and health of the plaintiff and then, whether through training or the implementation of procedures and precautions which were practicable in all the circumstances, to guard against those risks: Quinn v. Bradbury [2011] IEHC. He disagreed with the trial judge that the defendant had failed to comply with its duty of care to the employee insofar as there a number of staff available to the employee and that she had the option to use the tannoy. He noted that the plaintiff did not follow her training.

The judge stated that Dunnes Stores had a policy and procedure in place to protect the welfare and safety of those working at their checkout and that the procedures took into account the possibility that, from time to time, there would be no one immediately available at the tills themselves in which case the checkout operator has been trained to seek assistance from a member of staff using the tannoy.

The judge stated “I believe that it would be neither reasonable not practicable to expect the defendant to have an employee ever present available to deal with any query as might be brought to the checkout operator by a customer….even if the store had one or more full time assistants available to checkout operators, it would invariably happen that from time to time these would be deployed on the floor when another problem needing attention. In such circumstances assistance would only be available over the tannoy. The temporary unavailability of a staff member in such circumstances could not, in my view, be considered sufficient to establish a breach of duty on the part of an employer”.Thus, a system which depends on the occasional use of the tannoy is, in my view, perfectly acceptable as providing a system which is practical and reasonable for the purposes of protecting the health and safety of the employee working as a checkout operator”.

Justice Irvine noted that ven if the defendant was negligent in failing to provide the plaintiff with adequate assistance, the same was not causative of her. He also noted that the trial judge had accepted that the plaintiff had been trained and assessed on a regular basis in relation to manual handling skills and techniques and referred to the fact that the plaintiff accepted under cross examination that she had been taught to look for help if she needed it and that she must not lift or handle any load which she felt uncomfortable about handling.

The judge noted that there could be no causative link between any failure on the part of the defendant and the plaintiff’s injuries.The injury was not sustained because the plaintiff was lifting a 10 kg bag of potatoes from a pallet. It was sustained when the plaintiff lent in sideways over the pallet and “yanked” the product from between two other bags of potatoes, which for some reason she left in situ while trying to extricate the bag concerned. This precise scenario was unlikely to be covered by any manual handling course practical or otherwise.

The judge concluded that he was “quite satisfied that for an employer, such as the defendant in this case, it reasonably discharged its obligations to the plaintiff by training her on a regular basis as to the principles of safe manual handling which it was then up to her to deploy when faced with any given task. The fact that the training in respect of safe lifting techniques may have been done using empty cardboard boxes or boxes with handles cannot, on the evidence, be considered to amount to a failure on the part of the defendant to meet its common law and statutory obligations to the plaintiff. Its obligation was to identify potential hazards and then implement procedures designed to protect the employee from the risks pertaining to such hazards, which it did“.

He further noted that the plaintiff was a “loyal and hard-working member of the defendant’s staff, because of her commitment to her employer and her desire to meet a customer’s needs, took on a task which was contra indicated by her training and did so in circumstances where she knew or ought to have known she might sustain an injury. She did not seek assistance at the checkout, as she might have done having regard to her training, and further, when faced with moving a heavy bag of potatoes which was obviously wedged in position such that it could not be easily extracted without force, proceeded to try to yank it free thus causing herself an injury”.

The judge concluded that whilst he had great sympathy for the plight and predicament of the plaintiff he was not satisfied that the plaintiff’s injuries “can be ascribed to any negligence, breach of duty or breach of statutory duty on the part of the defendant who, to my mind, had taken all reasonable precautions and had implemented all reasonable practices to protect the plaintiff from injuring herself in circumstances such as those which presented in the present case

He allowed the defendants appeal.

 

Defamation – Award of 7,500

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The Irish Independent reported yesterday (March 7th) of the Circuit Court case where a woman successfully sued for defamation when a petrol pump attendant accompanied her from the petrol court to the cashier. When the plaintiff asked why did this, she was informed that she would not have paid otherwise.

The plaintiff, Laura Kavanagh, gave evidence that her husband had initially put petrol in the car but was prevented from re-entering the drivers side of the car by the supervisor of the petrol station who informed him “You were not going to pay, you pay for petrol now”.

In the Circuit Court, Judge Groarke determined that the supervisor had defamed the plaintiff and awarded her 7,500 in damages.

Protected Disclosures Act 2014 – Application for Injunctive Relief

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The recent case of Dan Philpott v Marymount University Hospital and Hospice Limited 2015/364 (Circuit Court) (unreported) delivered on June 12th 2005 is the first reported case under the Protected Disclosures Act 2014.

Background

The applicant in this case commenced employment on 6th May 2014 on a five year fixed term contract. On 2nd December 2014 the applicant was told his contract would be terminated and the respondent asserted this was due to significant interpersonal difficulties between the applicant and other members of staff. The applicant had been out on sick leave from 12th December 2014 until his final date of termination on 2nd February 2015. The applicant contended that he was dismissed by virtue of making “protected disclosures” within the meaning of the Protected Disclosures Act 2014. The applicant commenced proceedings before the Employment Appeals Tribunal for unfair dismissal and sought within the context of the Circuit Court proceedings, interim relief pursuant to Schedule 1 of the 2014 Act. In essence the applicant sought the continuation of the terms of his contract of employment pending the determination of the proceedings before the EAT.

Protected Disclosures Act 2014

Section 5 of the Act provides that a “protected disclosure” means a disclosure of “relevant information” made by a worker. Section 5(2) provides that information is “relevant information” if

(a) In the reasonable belief of the worker, it tends to show one or more relevant wrongdoings, and

(b) It came to the attention of the worker in connection with the worker’s employment.

Section 5(3) goes on to provide the matters considered to be “relevant wrongdoings” and Section 5(8) provides that “In proceedings involving an issue as to whether a disclosure is a protected disclosure it shall be presumed, until the contrary is proved, that it is”.

The respondent acknowledged that the burden of proof rested with them in respect of the above test and that if the respondent was able to prove that the disclosures were not “protected disclosures” then the applicant did not have the protection of the Unfair Dismissal Acts 1977 (as amended) and could not obtain the interim relief sought.

Disclosures and Alleged Wrongdoings

The applicant set out a number of disclosures and alleged wrongdoings in his formal protected disclosure document dated 7th January 2015 sent to the Board of the Hospital.

  1. Charity funding being used for needs other than Palliatative Care

The applicant alleged that the charity funding was being used as a working capital fund and to fund various salaries and administration expenses etc. The Circuit Court rejected this assertion by the applicant as the Charities Act 2009 does not provide that such expenditure is contrary to the Act. The Court also noted that Marymount hospice has been a registered charity for some time and no complaints have been made in regard to any authority.

The applicant also contended that the Board was aware that there was a lack of transparency in how it conducted fundraising and how it was spent. The Court noted that the evidence of Dr Marie Murphy, a consultant in palliative care, completely contradicted the evidence of the appellant as Dr Murphy had clearly set out how the hospice were involved in the proper dispersion of donations and bequests and that she was paid a basic salary and no top up payments had been made to salaries as set out on the website.

2. Significant issues with the building which posed and continued to pose critical risk to the health and safety of patients, staff and public.

The applicant referred to possible Legionnaires contamination and in particular to an incident on September 14th 2014 which resulted in critically ill patients having to be evacuated. The respondent entirely refuted this in cross examination and stated that what in fact happened was that a few patients had to be moved to another ward for a short period of time and the situation was not as serious as described by the applicant. The Circuit Court actually noted that use of the term evacuation as described by the plaintiff was alarmist. The applicant also referred to a suspended ceiling stricture at the public main entrance in August 2014 and the delay in obtaining repair measures for three days posed a risk to the public. The Court again noted that despite these allegations the building had passed two HIQUA registrations since opening in 2011.

3. Mismanagement of financial resources

The applicant also expressed concern that the original building contract document with the contractors was missing and was impeding remediation and loss recovery issues. He also stated this was indicative of lack of financial control resulting in the loss of public monies and charitable donations. The respondents stated that a firm of Loss Adjusters were in the process of recovering the losses through  consensus means outside the court system. Further evidence was given whereby the
Hospice had gained approval and funding to open a second palliative care ward. The applicant raised further concerns in relation to the inadequate number of registered nurses to staff the additional facility however this was overcome. The applicant also had a number of concerns in relation to funding and budgetary control and believed that HSE may have to intervene and take control. The applicant did not furnish financial information to support the allegations including that the hospice financial control procedures were ad hoc and had an inadequate budget planning approach.

The applicant was also concerned at funding being given for a PhD course for the head of nursing  while the applicant at the same time accepted funding for a corporate governance course.

Decision

Judge O’Donoghue noted that as this was an application for interim relief that the court only had to satisfy itself that the beliefs and disclosures were reasonable. The Court accepted the sincerity of the plaintiff but that objectively on the facts he had not satisfied the test.

The Court therefore refused the interim relief.

National Minimum Wage (Low Pay) Commission Bill 2015

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The Government have recently published the National Minimum Wage (Low Pay Commission) Bill 2015, the purpose of which is to amend the National Minimum Wage Act 2000 to provide for the establishment of a body to be known as the Low Pay Commission to advise on setting a national minimum wage and to provide for related matters.

The principle function of the Low Pay Commission will be on an annual basis, to examine and make recommendations to the Minister on the national minimum wage and to secure that the national minimum wage is adjusted incrementally over time having had regard to changes in earnings, productivity,overall competitiveness and the likely impact any adjustment will have on employment and unemployment levels.
The Low Pay Commission may also be requested by the Minister to examine and
report its view and recommendations on such matters related generally to the functions of the Commission under the Act. This work programme will be presented to the Commission within the first two months of each year.

Important High Court Decision on Point of Law Payment of Wages Act 1991 – Case remitted to the Employment Appeals Tribunal

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The recent case of EARAGAIL EISC TEORANTA v ANN MARIE DOHERTY, BRENDAN McGINLEY, EVELYN BOYLE, GAVIN McGINLEY, GERARD HARDY, JOHN McGINLEY, JONATHAN BYRNE, JOESPH BYRNE, JOSEPH DOHERTY, KEVIN BRESLIN, LIAM GALLAGHER, MARTIN GILLESPIE, MARY GAZLEY, MARY TUBRIDY, MICHAEL J. KENNEDY, MICHAEL O’DONNELL, NIGEL O’ROURKE, ROGER McSHANE, SEAMUS DOHERTY, SINEAD HAMILTON, THOMAS McGINLEY, TIGHEARNAN CLANCY, ÚNA DIVER, WILLIAM J. HEEKIN concerned an appeal on a point of law pursuant to section 7(3)(b) of the Payment of Wages Act 1991 (‘the 1991 Act’) and the judgement was delivered by Justice Kearns on 5th June 2015. 

In essence the appellant sought a number of orders under Order 84C of the Rules of the Superior Courts and Section 7(4)(b) above directing that the EAT had erred in law in respect of a number of aspects of its determination dated 4th February 2014.

Background
The appellant is a limited liability whose primary business is the supply of premium seafood to a global market. In 2006 the company was experiencing financial difficulties and in or around June 2006 a restructuring programme was introduced. Ultimately, the company was subject to a financial rescue in 2007. Subsequently, as part of a process of cutting costs, the company decided to implement a 10% reduction in payroll costs which came into effect on the 9th May, 2011. A number of respondents did not agree with the proposals and initiated complaints under the provisions of the 1991 Act seeking to argue that the appellant’s actions were unlawful.

The matter came before the Rights Commissioner on various dates in 2011 and 2012. In each case, the Rights Commissioners upheld the complaints.

The appellant appealed the decisions of the Rights Commissioners and the matter came before the Employment Appeals Tribunal on the 15th July, 2013 and the 27th November, 2013. The appellant submitted at the hearing that the Tribunal lacked the jurisdiction to hear the matter at all on the basis that the provisions of the 1991 Act were not designed to address the situation which arose in the present case.

The appellant further contended before the Tribunal that the reduction in pay implemented by the company in the instant case was not a ‘deduction’ within the meaning of s.5 of the Act. In this regard, the High Court (Edwards J.) decision in McKenzie & Anor. v. the Minister for Finance & Anor [2010] IEHC 461 was relied upon.

Statutory Provisions

Section 5 of the 1991 Act provides:

“5.—(1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—
(a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

(b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee’s contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

(c) in the case of a deduction, the employee has given his prior consent in writing to it.”

Section 5(6) goes on to state that:–

“(6) Where—

(a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

(b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,

then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.”

Section 6 sets out the procedure for the making of complaints by employees in relation to contraventions of s.5 by their employer:–

“6.—(1) An employee may present a complaint to a rights commissioner that his employer has contravened section 5 in relation to him and, if he does so, the commissioner shall give the parties an opportunity to be heard by him and to present to him any evidence relevant to the complaint, shall give a decision in writing in relation to it and shall communicate the decision to the parties.

(2) Where a rights commissioner decides, as respects a complaint under this section in relation to a deduction made by an employer from the wages of an employee or the receipt from an employee by an employer of a payment, that the complaint is well-founded in regard to the whole or a part of the deduction or payment, the commissioner shall order the employer to pay to the employee compensation of such amount (if any) as he thinks reasonable in the circumstances not exceeding—
(a) the net amount of the wages (after the making of any lawful deduction therefrom) that—

(i) in case the complaint related to a deduction, would have been paid to the employee in respect of the week immediately preceding the date of the deduction if the deduction had not been made, or

(ii) in case the complaint related to a payment, were paid to the employee in respect of the week immediately preceding the date of payment,

or

(b) if the amount of the deduction or payment is greater than the amount referred to in paragraph (a), twice the former amount.”

Decision of the Employment Appeals Tribunal

The EAT determined that the net issues in the appeal from the Rights Commissioners related to section 5 of the Payment of Wages Act 1991 and paragraph 8.2 of the contract of employment between the appellant and the respondents. An extract from the Tribunal’s determination is as follows:

“…the Tribunal does not accept the appellant’s contention that it could unilaterally deduct the wages of its employees based only on the provision of management’s requirements. Such a deduction would be contrary to the wording of section 5(1) (b) of the Act. In this case the appellant did not advance its own case for a deduction as it opted not to fully engage with the respondents as to the reported serious financial situation it was facing at the relevant time.

Section 8.2 of the contract of employment states From time to time these terms and conditions of employment may need to be revised, to take account of new circumstances. Such revisions may be brought about by legislation, employee request, or management’s requirements, and will be discussed with employees as necessary. Section 5(1) of the Act states: An employer shall not make a deduction from the wages of an employee unless – Section 5(c) reads in the case of a deduction, the employee has given his prior consent in writing to it. The above clearly means that an employer must receive the explicit written permission of its workforce to allow it to deduct its remuneration. In all of the circumstances of this case the Tribunal cannot accede to the appellant’s request that the Tribunal exercise its discretion not to award compensation.” [sic.]

The Tribunal upheld and reaffirmed the recommendations of the Rights Commissioner.

Submissions of the Appellant
The appellant submitted that the purpose of the 1991 Act was to provide protection for employees who, at the time, were largely in unregulated employment. The appellant also submitted that as there is a contract of employment and a company handbook in existence, the matter was not suitable for adjudication by the Tribunal but rather amounted to a contractual dispute between the parties.

It was further submitted that while there is no definition contained in the 1991 Act as to what amounts to a ‘deduction’, the purpose of the Act is widely accepted as being to ensure that employees are paid wages on a regulated and regular basis and that the reduction in pay was not a ‘deduction’ which brings it within the scope of the 1991 Act. The appellant relied on the decision of Edwards J. in McKenzie and the Permanent Defence Forces Other Ranks Representative Association v. The Minister for Finance and Others [2010] IEHC 462. in this case Edwards J. held that:–

“…the reduction in the PDF allowance is not a ‘deduction’ from wages payable. It is a reduction of the allowance payable. The Act has no application to reductions as distinct from ‘deductions’.”

Counsel also contended that the Tribunal erroneously interpreted section 5(1) and proceeded on the basis that the provisions at sub-sections (a)-(c) were to be taken conjunctively. However, the appellant submitted that the provisions are disjunctive and deal with separate situations where deductions in wages are legally permissible. Counsel also contended that the EAT failed to apply well settled principles of construction when considering the provisions of the company handbook alongside the relevant statutory provisions.

It was further submitted that even if the Tribunal had correctly applied section 5, which was denied, it failed to effectively engage with and correctly apply the provisions of section 6 of the 1991 Act, which conferred a discretion on the Tribunal not to award compensation in certain cases even where a breach of the Act by the employer had been established.

The appellant also contended that the Tribunal failed to provide any basis for its decision, despite having the benefit of detailed written and oral submissions and reserving its decision for a period of four months. Counsel referred the Court to the recent Court of Appeal decision in Bank of Ireland v. Heron [2015] IECA 66 wherein Kelly J. summarised the law surrounding the obligations on decision makers to give reasons.

It was submitted therefore that the Tribunal did not have jurisdiction to adjudicate on the complaint and in the event the Court found it did, it was submitted that the Tribunal made a number of errors in law which warranted the quashing of the determination and the remittal of the matter to the Tribunal for fresh adjudication.

Submission of the Respondents
Counsel for the respondents submitted by way of background that by correspondence dated 20th April, 2011 the company nominally sought the express written agreement of all employees to the proposed wage cuts, although it was clear that the company’s intention was to proceed to implement the cuts from 2nd May, 2011. The respondents contended that the company then proceeded to unilaterally impose the pay cuts on 9th May, 2011, when only a minority of employees had agreed by that stage, resulting in a number of complaints being made under the 1991 Act.

Counsel for the respondent submitted that the criteria which the Court ought to consider in determining whether or not to upset a determination or decisions of an expert administrative body have been considered in a number of cases which make clear that an appellant has a formidable burden to discharge. 

Counsel referred to a number of cases in this regard including Henry Denny & Sons (Ireland) Limited trading as Kerry Foods v. the Minister for Social Welfare [1988] 1 IR 34, Faulkner v. the Minister for Industry and Commerce (Unreported, High Court, 25th June, 1993) Murphy J., Brides v. Minister for Agriculture [1998] 4 I.R. 250 and Mulcahy v. Minister for Justice and Law Reform and Others [2002] ELR 12. Counsel further submitted that the decision of Gilligan J. in ESB v. the Minister for Social, Community and Family Affairs & Ors. [2006] IEHC 59 summarised the principles set out in such cases and which are to be applied in appeals of this nature. In that case, Gilligan J. stated:–

“I take the view that the approach of this Court to an appeal on a point of law is that findings of primary fact are not to be set aside by this Court unless there is no evidence whatsoever to support them. Inferences of fact should not be disturbed unless they are such that no reasonable tribunal could arrive at the inference drawn and further if the Court is satisfied that the conclusion arrived at adopts a wrong view of the law, then this conclusion should be set aside. I take the view that this Court has to be mindful that its own view of the particular decision arrived at is irrelevant.

The Court is not retrying the issue but merely considering the primary findings of fact and as to whether there was a basis for such findings and as to whether it was open to the Appeals Officer, to arrive at the inferences drawn and adopting a reasonable and coherent view, to arrive at her ultimate decision.”

Counsel submitted that it is clear from the various exhibits that the Tribunal had before it extensive material supporting the workers’ position that numerous requests for verifiable data relating to the company’s financial situation at the relevant times were simply not addressed and that company accounts showed the company was profitable.

Counsel for the respondents also submitted that the written submissions filed before the Tribunal suggested that three very net issues fell for determination at that stage and could be summarised as:

(a) whether there was an unlawful deduction falling foul of s. 5 of the Act,

(b) section 8.2 of the employee handbook, and

(c) the exercise of discretion not to award compensation.

Counsel further provided that the EAT had extensive submissions before it to determine the difference between “reduction” and “deduction” and referred to the case of Bruce v. Wiggins Teape [1994] IRLR 536 which involved an analysis of any apparent distinction between reduction and deduction for the purposes of the UK’s Wages Act 1986. It was held by the EAT that the Industrial Tribunal had fallen into error as it had misconstrued the provisions of the Wages Act 1986 and the decisions on it “as drawing a distinction between a deduction from wages and reduction in wages”. 

In this case Counsel contended that the Tribunal was entitled to treat the reduction in wages as a deduction for the purposes of the 1991 Act and no error in law occurred in this regard.

In relation to the appellant’s contention that the Tribunal misinterpreted the company handbook, and section 8.2 thereof in particular, it was submitted that the Tribunal had the benefit of oral and written submissions on this issue and the company’s assertion that section 8.2 of the handbook provided a contractual basis to unilaterally cut wages is simply not borne out by the actions of the company surrounding the implementation of the pay cuts.

Counsel for the respondent also denied that the Tribunal erred in law in relation to its decision not to award compensation. It is expressly stated in the determination of the Tribunal that the decision not to accede to the appellant’s request was made “in all the circumstances of the case”. 

In respect of the argument that the Tribunal failed to give adequate reasons for its decision, counsel for the respondent submitted that it has been established in a number of cases that the duty of administrative tribunals to give reasons in their decisions is not a particularly onerous one and only broad reasons for the decision need to be given. Counsel referred to a number of cases in this regard including Faulkner v. Minister for Industry and Commerce [1997] 8 E.L.R. 107 and Byrne v. The Official Censor (Unreported, High Court, 21st December 2007)

Decision

The Court firstly considered whether or not the complaint was suitable for adjudication by the Tribunal and did not accept the submission of the appellant that the Tribunal was not the appropriate body to hear the complaint simply because there is a contract of employment and company handbook setting out the various terms and conditions. The Court was also satisfied that the decision in McKenzie was distinguishable from the facts of the present case in a number of respects. The Court accepted the submissions of the respondents that the remarks of Edwards J. in relation to ‘reduction v. deduction’ issue were obiter and that it related to the reduction in an allowance payable in respect of motor travel and subsistence which was outside the definition of ‘wages’ in the 1991. 

The Court then considered whether or not the decision arrived at was tainted by any error of law. It noted that it must confine itself to a consideration of a point of law only and may only interfere with a finding of fact when it is entirely unsustainable based on the information before the Tribunal. The court referred to the decision of National University of Ireland Cork v. Ahern and Others [2005] 2 IR 577, at paragraph 9:–

“…matters of fact as found by the Labour Court must be accepted by the High Court in any appeal from its findings. As a statement of principle, this is certainly correct. However, this is not to say that the High Court or this court cannot examine the basis upon which the Labour Court found certain facts. The relevance, or indeed admissibility, of the matters relied on by the Labour Court in determining the facts is a question of law. In particular, the question of whether certain matters ought or ought not to have been considered by account by it in determining the facts, is clearly a question of law and can be considered on an appeal under [the relevant section].”

The Court also referred to Dunnes Stores v. Doyle [2014] 25 E.L.R. 184 where Birmingham J. held as follows:–

“Identifying the contractual entitlement of an employee of course involves legal determinations. Where such legal determinations are made by a tribunal then there is the option of having the conclusions reviewed in the High Court through the appeal on a point of law route. When that occurs, and the High Court is asked to consider whether the Tribunal correctly applied the law, there is no scope for the doctrine of curial deference.”

The Court concluded that there was a manifest error of law in the Tribunal’s interpretation of section 5 of the 1991 Act. It noted:

The determination of the Tribunal clearly indicates the Tribunal’s view that, pursuant to s.5(1)(c) of the 1991 Act, the written consent of the employees was required before the appellant company could bring about any changes to salary levels. However, these exceptions listed at (a), (b), and (c) of section 5(1) are clearly not to be taken conjunctively. The word ‘or’ is expressly used in the provision and it is clear that each sub-section concerns separate instances which might give rise to an exception to the rule that an employer shall not make a deduction from the wages of an employee. Sub-section (b) states that deductions are allowable where they are authorised by virtue of an employee’s contract of employment, which is something the Tribunal should have considered independently of sub-section (c). However, in treating sections (a)-(c) as conjunctive the Tribunal erred in law“.

The Court was also satisfied that the Tribunal failed to provide adequate reasons for a number of other findings and whilst the Court accepted that previous decisions of the Court have established that the duty to give reasons does not require extensive analysis of every aspect of a complaint, “the brief determination of the Tribunal is wholly inadequate to meet even this low threshold”.  

The Court noted that the Tribunal was also required to interpret the provisions of the contract of employment and terms and conditions as set out in the handbook however “aside from briefly stating that section 8.2 it was not applicable in light of section 5(1)(b), which, as is apparent from the second paragraph of the determination, the Tribunal erroneously read alongside section 5(1)(c), there is no engagement with the provisions of the handbook”.

Edwards J further stated “….I am satisfied that the Tribunal erred in failing to apply well established principles of construction to the provisions of the handbook and by failing to give reasons for its finding in relation to it. Both sides were in dispute on this point and the decision of the Tribunal fails to indicate which submission was preferred and why“.

In relation to the decision of the Tribunal not to exercise its discretion in relation to the payment of compensation in favour of the appellant, the Court accepted that this is a matter for the Tribunal based on the facts of each case. 

Conclusion

The Court remitted the matter to the Tribunal for fresh adjudication in light of the findings of the court.

We have referred to extensive extracts from the above decision in the above post.

Employment Equality (Amendment) Bill 2015 Published

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The Government has this week published the Employment Equality (Amendment) Bill 2015 a copy of which can be accessed here.

The purpose of the Bill is to provide equality for employees of education, medical and other services under the direction of religious organisations.

Section 37 of the Employment Equality Act 1998 deals with the exclusion of discrimination on particular grounds in certain employments and it is proposed under the new Bill to amend Section 37(1) by the substitution of the following section;

37.(1)(a) A religious organisation shall not be taken to discriminate against a person for the purposes of this Part or Part II by giving favourable treatment on the religion ground to an employee or a prospective employee where the religion or belief of the employee constitutes a justified occupational requirement.

(b) No religious organisation, or body under the direction or control of a religious organisation, may give less favourable treatment on gender, marital status, family status, sexual orientation, religion, age, traveller community, disability grounds or the ground of race to employees or prospective employees in services it operates including educational or medical institutions”.

Workplace Relations Act 2015 to Commence on 1st October

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Minister Bruton announced yesterday that the Workplace Relations Act 20115 will be commenced on 1st October 2015.

In essence the far reaching reforms will see the existing employment rights and industrial relations rights bodies merged to form two bodies, the Workplace Relations Commission which will deal with all cases in the first instance and the Labour Court which will deal with all cases on appeal.

A full copy of the press release is available here

Workplace Relations Act 2015 – No.16 of 2015

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The Workplace Relations Act 2015 has recently been signed into law and is one of the most important pieces of legislation to come into the employment law arena in recent years.

The Act is intended to make provision with respect to the resolution, mediation and adjudication of disputes and complaints relating to contraventions of, or entitlements under, certain enactments governing the employment relationship between employers and employees.

The Act provides for the establishment of a body known as the Workplace Relations Commission and to provide for the dissolution of the Labour Relations Commission and the transfer of its functions to the new body. The Act also provides for the dissolution of the Employment Appeals Tribunal and the transfer of its first instance functions to the new body and its appellate functions to the Labour Court. In addition the Act provides for the transfer of the functions of the Director of the Equality Tribunal to the new body. Finally the Act will provide for the repeal of certain enactments and to provide for the amendment of certain enactments etc.

We propose to publish a series of blog posts over the coming days highlighting some of the important features of the new Act.

Licensing of Private Investigators Mandatory from 1 November 2015

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It has recently been announced that with effect from 1st November 2015, contractors providing security services as a private investigator will require a licence from the Private Security Authority (“PSA”) which is an independent statutory body under the aegis of the Department of Justice and Equality with responsibility for licensing and regulating the private security industry.

A full copy of the press release from Frances Fitzgerald, Minister for Justice and Equality is available here.