High Court: Dunnes granted extension of time to appeal Labour Court decision to award ex-employee €30,000

About this case:

• Citation:
  [2018] IEHC 503
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Richard Humphreys

The Workplace Relations Commission and the Labour Court both held that the woman’s dismissal on grounds of her disability was discriminatory.

In the High Court, Mr Justice Richard Humphreys was satisfied that the lack of clarity as to the statutory time limit applicable to the present appeal contributed to a bona fide mistake by Dunnes’ legal advisers. 

Background

Ms Mary Doyle Guidera commenced her employment with Dunnes Stores in November 2003. In June 2014, she was certified unfit for work due to stress and anxiety, which was confirmed in February 2015 by Dunnes’ company doctor who said that with continued care she should make a good recovery. In January 2016, Ms Guidera’s GP sent an update to Dunnes which stated that it was not possible to predict when she would be fit to return to work and that she continued to suffer from severe stress-related illness.

Throughout the time that Ms Guidera was certified unfit for work, she attended meetings with the Regional Manager for Dunnes on a regular basis. In August 2016, the Regional Manager wrote to Ms Guidera to schedule a meeting for 22 August 2016, stating that she had not provided a return to work date and that she should bring any medical or other information to the meeting in which Dunnes would consider dismissing her. At the meeting, Ms Guidera provided a letter advising that she had been referred to a specialist and that her return to work would depend on the outcome of that visit. At this point, the Regional Manager advised that her contract would be terminated.

In September 2016, Ms Guidera attended a further meeting with the Regional Manager, proving further medical information. At this meeting, the Regional Manager informed her that he was terminating her employment with notice. Ms Guidera subsequently received a letter to this effect, which stated that her termination date would be 24th October 2016.

In the Labour Court, it was agreed that Ms Guidera, at the date of termination of her employment and prior to that date, suffered from a disability within the meaning of the Employment Equality Acts, 1998 to 2015. Ms Guidera submitted that she was dismissed by reason of that disability.

In the absence of impending medical advice which would address Dunnes’ request for a return to work date, Ms Guidera submitted that Dunnes had concluded that Ms Guidera was incapable of carrying out the work for which she was employed. Ms Guidera submitted that Dunnes was obliged by Section 16 of the Employment Equality Acts, 1998 to 2015 to make whatever reasonable accommodation might be necessary to facilitate her return to work – and any consideration of this matter could only be made upon receipt of the relevant medical advice which Dunnes did not wait to receive.

In all the circumstances, Ms Guidera complained that Dunnes did not discharge its responsibilities under the Employment Equality Acts, 1998 to 2015. In consequence of these failures, Dunnes’ decision to dismiss her on grounds of her disability was discriminatory.

In December 2017, an Adjudication Officer of the Workplace Relations Commission upheld Ms Guidera’s complaint and awarded her €15,000 in compensation.

In July 2018, the Labour Court agreed that Dunnes failed to adequately discharge the duties imposed upon it by Section 16 of the Employment Equality Acts, 1998 to 2015 (Nano Nagle v Marie Daly (2018) IECA 11 considered). Varying the decision of the Adjudication Officer, the Labour Court awarded Ms Guidera €30,000.

High Court

In the High Court, Dunnes applied ex parte for an order under Order 106, Rule 5 of the Rules of the Superior Courts 1986 to extend the time for an appeal from the Labour Court to the High Court. Due to the lack of clarity as to the time limit applicable in the present case, Mr Justice Humphreys had to decide whether a mistake by legal advisers for Dunnes was a sufficiently satisfactory explanation to grant an extension of time.  

Jurisdiction to extend time is set out in Order 106, Rule 5, which provides that an originating notice of motion under Order 106, Rule 2 should be issued within 21 days of the date on which the determination of the Labour Court was given, provided that the time can be extended on application ex parte within six weeks from that date.

After setting out the interplay of the relevant statutory provisions necessary for determining the applicable time limit in the present case, described by Counsel for Dunnes as ‘byzantine’ (i.e. excessively complicated) and by Mr Justice Humphreys as ‘somewhat complex’; Mr Justice Humphreys explained: given that section 83 of the Employment Equality Act 1998 applies only s. 44 of the Workplace Relations Act 2015 and not s. 46, it is clear that the limitation period for an appeal to the High Court in employment equality cases is that set out in s. 90 of the Employment Equality Act 1998 and not s. 46 of the Workplace Relations Act 2015.

Mr Justice Humphreys also explained that a CPD paper posted on the Bar Council website indicated that the lack of clarity was not confined to Dunnes’ legal advisors.

Considering the basic test for extension of time to appeal in Éire Continental Trading Co. Ltd. v. Clonmel Foods Ltd [1955] I.R. 170, as reaffirmed in Goode Concrete v. CRH plc [2013] IESC 39; and the approach to mistakes by legal advisers discussed in Delany and McGrath in Civil Procedure(4th Ed., Round Hall, 2018) and in Keegan v. Garda Síochána Ombudsman Commission [2012] IESC 29 [2012] 2 I.R. 570, Mr Justice Humphreys said that there were a number of factors in favour of regarding the excuse as sufficient:

• (i) There was a bona fide mistake.
  
• (ii) The inherent complication of the statutory scheme.
• (iii) The inconsistency in statutory time limits as between different enactments in a related area.
• (iv) The fact that there was hitherto some lack of clarity that was not confined to legal advisers for the appellant, as illustrated by the CPD paper.
• (v) The fact that the decision was received on the last day of term - so the vacation was relevant.
• (vi) The fact that Dunnes acted promptly on realising the difficulty. 

In all the circumstances, Mr Justice Humphreys granted the order sought for an extension of time to appeal to the High Court.

• by Seosamh Gráinséir for Irish Legal News