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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Sharma & Anor -v- Employment Appeals Tribunal [2010] IEHC 178 (13 May 2010) URL: https://www.bailii.org/ie/cases/IEHC/2010/H178.html Cite as: [2010] IEHC 178 |
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Judgment Title: Sharma & Anor -v- Employment Appeals Tribunal Composition of Court: Judgment by: Hedigan J. Status of Judgment: Approved |
Neutral Citation Number: [2010] IEHC 178 THE HIGH COURT 2009 198 JR NITYENDRA SHARMA APPLICANT AND
THE EMPLOYMENT APPEALS TRIBUNAL RESPONDENT AND
J&I SECURITY LIMITED NOTICE PARTY THE HIGH COURT 2009 199 JR UDAIVEER SAHARAN APPLICANT AND
THE EMPLOYMENT APPEALS TRIBUNAL RESPONDENT AND
J&I SECURITY LIMITED NOTICE PARTY JUDGMENT of Mr. Justice Hedigan delivered on the 13th day of May, 2010.
The Parties
(b) An order of mandamus directing the respondent to consider and determine in accordance with law the applicant’s claim under the Unfair Dismissals Acts 1977-2007.
(c) A declaration that the determination of the respondent dated 6th January, 2009 and as notified by letter of 20th January, 2009 declining jurisdiction to hear and refusing to proceed with the hearing of the applicant’s claim for unfair dismissal under the Unfair Dismissals Acts 1977-2007 is ultra vires and without efficiency and/or is unreasonable, irrational and perverse and in breach of fair procedures and natural justice.
(d) A declaration that the respondent erred in law in making its determination.
(e) A declaration that the said determination has culminated in a nullity.
(f) A declaration that the respondent did not make clear on what grounds it declined jurisdiction and on what legal principles were applied.
(g) A declaration that the respondent’s reasoning in declining jurisdiction was not sufficient to enable the applicant to understand the basis for its conclusions.
(h) A declaration that the respondent, in failing to give adequate reasons for its decision in so declining jurisdiction did not provide due process and failed to observe the requirements of Article 6 of the European Convention on Human Rights.
(i) An order remitting the claim to a different constituted division of the respondent. 6. Both of the applicants submitted claims to the respondent pursuant to the Unfair Dismissals Acts, 1977-2007 on the 12th December, 2007 having both been dismissed from their employment by the notice party. Mr. Sharma was employed by the notice party as a security guard from the 19th November, 2006 until the 4th October, 2007 (approximately 11 months). Mr. Saharan was also employed by the notice party as a security guard from the 28th April, 2007 until the 4th November, 2007 (approximately 6 months). Both of the applicants are represented by Mr. John Connellan, Solicitor of Carley & Co. Solicitors. Mr. Connellan filled out two notices of claim on their behalf and submitted them to the respondent.
Under Section 28(1) of the Safety, Health and Welfare at Work Act 2005:- ‘Without prejudice to section 27(4) an employee may present a complaint to a rights commissioner that his or her employer has contravened section 27.” 9. The applicants instituted the instant proceedings on the 23rd February, 2009. Applicable Law
(a) an employee (other than a person referred to in section 4 of this Act) who is dismissed, who, at the date of his dismissal, had less than one year’s continuous service with the employer who dismissed him and whose dismissal does not result wholly or mainly from the matters referred to in section 6(2)(f) of this Act.” 11. Section 6(1) of the Act of 1977 provides for dismissals to be deemed unfair unless there are substantial grounds justifying the dismissal. Section 6(2) goes on to state that the dismissal of an employee shall be deemed unfair “if it results wholly or mainly from” specified grounds. Those grounds include membership or proposed membership of a trade union or engaging in trade union activities; religious or political opinion; legal proceedings against an employer where an employee is a party or a witness; race; sexual orientation; age; membership of the travelling community; pregnancy or matters connected with pregnancy and birth; penalisation; availing of rights under legislation to maternity leave, adoptive leave, carer’s leave, the National Minimum Wage Act 2000, parental or force majeure leave and unfair selection for redundancy.
(2) Without prejudice to the generality of subsection (1), penalisation includes— (a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2001), or the threat of suspension, lay-off or dismissal, (b) demotion or loss of opportunity for promotion, (c) transfer of duties, change of location of place of work, reduction in wages or change in working hours, (d) imposition of any discipline, reprimand or other penalty (including a financial penalty), and (e) coercion or intimidation. (3) An employer shall not penalise or threaten penalisation against an employee for— (a) acting in compliance with the relevant statutory provisions, (b) performing any duty or exercising any right under the relevant statutory provisions, (c) making a complaint or representation to his or her safety representative or employer or the Authority, as regards any matter relating to safety, health or welfare at work, (d) giving evidence in proceedings in respect of the enforcement of the relevant statutory provisions, (e) being a safety representative or an employee designated under section 11 or appointed under section 18 to perform functions under this Act, or (f) subject to subsection (6), in circumstances of danger which the employee reasonably believed to be serious and imminent and which he or she could not reasonably have been expected to avert, leaving (or proposing to leave) or, while the danger persisted, refusing to return to his or her place of work or any dangerous part of his or her place of work, or taking (or proposing to take) appropriate steps to protect himself or herself or other persons from the danger. (4) The dismissal of an employee shall be deemed, for the purposes of the Unfair Dismissals Acts 1977 to 2001, to be an unfair dismissal if it results wholly or mainly from penalisation as referred to in subsection (2)(a). (5) If penalisation of an employee, in contravention of subsection (3), constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts 1977 to 2001, relief may not be granted to the employee in respect of that penalisation both under this Part and under those Acts. (6) For the purposes of subsection (3)(f), in determining whether the steps which an employee took (or proposed to take) were appropriate, account shall be taken of all the circumstances and the means and advice available to him or her at the relevant time. (7) Where the reason (or, if more than one, the principal reason) for the dismissal of an employee is that specified in subsection (3)(f), the employee shall not be regarded as unfairly dismissed if the employer shows that it was (or would have been) so negligent for the employee to take the steps which he or she took (or proposed to take) that a reasonable employer might have dismissed him or her for taking (or proposing to take) them.” 13. Section 28(1) of the Act of 2005 goes on to state:-
14. Mr. Stewart S.C., for the applicants, submitted one of the exceptions to the requirement of one year’s continuous service to bring claims under the Unfair Dismissals Acts 1977-2007 was for employees whose dismissal resulted from penalisation. In this regard he referred to a number of extracts from legal textbooks. He noted that s.27 of the Act of 2005 was silent as to any requirement to have one year’s continuous service. He argued that if an employee is dismissed because of complaining about health and safety issues that such a dismissal is deemed unfair and that person can make a claim under the Unfair Dismissals Acts 1977-2007 or the Act of 2005 and that it was an error in law to exclude the applicants from the Unfair Dismissals Acts 1977-2007.
Decision of the Court
This provides inter alia that s. 2(1)(a) of the Act of 1977 shall not apply “if the dismissal results wholly or mainly from one or more of the matters referred to in subsection (2)(a) of the said section 6” i.e. the employee’s membership or proposed membership of a trade union or excepted body under the Trade Union Acts 1941 and 1971. Section 38(5) of the Maternity Protection Act 1994 This provision inserted s.6 (2A) into the Act of 1977. In essence, it provides, inter alia, that for the purposes of the sections of the Act of 1977 which deal with pregnancy and maternity matters, the term “employee” includes a person who would otherwise be excluded from the Act by virtue of inter alia paragraph (a) of section 2(1) of the Act of 1977. Section 25 of the Adoptive Leave Act 1995 Section 24 of the Act of 1995 inserted a new ground for a presumed unfair dismissal i.e. the exercise or contemplated exercise by an adopting parent of her right under the Act of 1995 to adoptive leave or additional adoptive leave. Section 25 of the Act of 1995 substituted the above s.6(2A) of the Act of 1977 so that the term “employee” and “adopting parent” include a person who would otherwise be excluded from the Act by inter alia paragraph (a) of section 2(1) of the Act of 1977. Section 25(2)(b) of the Parental Leave Act 1998 Section 25(2)(a) of the Act of 1998 inserted s.6(2)(dd) into the Act of 1977. It provides for the dismissal of an employee for the exercise or proposed exercise of the right to parental leave or force majeure leave under and in accordance with the Act of 1998 to be deemed unfair. Section 25(2)(b) provides that the term “employee” includes a person who for the purposes of s.6(2)(dd) would otherwise be excluded from the Act of 1977 by inter alia paragraph (a) of section 2(1) of the Act of 1977. Section 27(2)(b) of the Carer’s Leave Act 2001 Section 27(2)(a) of the Act of 2001 added, in s.6(2)(dd) the exercise or proposed exercise by the employee of the right to carer’s leave under and in accordance with the Carer’s Leave Act 2001 to the list of grounds for presumed unfair dismissal. Section 27(2)(b) goes on to provide that the term “employee” includes a person who would otherwise be excluded from the Act of 1977 by inter alia paragraph (a) of s.2(1) of the Act of 1977. Section 36(2) of the National Minimum Wage Act 2000 This provision stipulates that the dismissal of an employee in contravention of s.36(1) (including inter alia for having exercised or proposing to exercise a right under the Act) will be deemed to be an unfair dismissal for the purposes of the Unfair Dismissals Acts 1977-1993 and that it is not necessary for such an employee to have at least one year’s continuous service.
The reasons given for the decision of the respondent
22. The reasons given by the respondent for its determination are set out above in paragraph 8. The reasons given could well be described as telegraphic. It is doubtful they would satisfy the requirement for broad reasons. It would have been preferable that the reasons for the decision be outlined in clearer, more expansive language.
The non-notification of the applicants by the respondent of the jurisdictional issue Conclusion
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