High Court upholds award of €26,000 for former Arnott’s restaurant employee

About this case:

• Judgment:
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Dismissing the application for Judicial Review in the High Court, Mr Justice Max Barrett criticised the restaurant for inordinate delay.

Background

In 1987, Ms Maureen Stewart started working at the restaurant in Arnott’s department store on Henry Street, in Dublin City Centre. She commenced work as a catering assistant and rose ultimately to become a supervisor/cashier.

In May 2011, the restaurant in Arnott’s was taken over and Ms Stewart became an employee of Capital Food Emporium Limited. Difficulties arose in the relationship between employee and employer, which Ms Stewart established as having resulted in her constructive dismissal in February 2012.

Following her departure, Ms Stewart invoked the assistance of union officials at SIPTU in a bid to see what could be done about the state of affairs that had arisen between herself and her employer.

on 8th March 2012, with the benefit of SIPTU’s advice, Ms Stewart completed a workplace relations complaints form in which she sought a recommendation under s.8 of the Unfair Dismissals Act 1977 from a Rights Commissioner, Mr John Walsh.

On 22nd March 2012, the Rights Commissioner Service (RCS) wrote to SIPTU acknowledging receipt of Ms Stewart’s complaint; and on the same day, wrote to advise the other side that, absent objection (possible under s.7(3)(b) of the Unfair Dismissals (Amendment) Act 1993), it would proceed to an investigation of the complaint made.

On 5th April 2012, ‘ESA Consultants’ wrote to the RCS acknowledging receipt and stating that it would act on behalf of Capital Food.

On 26th June 2012, the RCS wrote to both SIPTU and ESA indicating that the investigation of Ms Stewart’s complaint would be heard on 2nd August 2012, at a stated venue

The Hearing

On the day of the hearing, no-one turned up for Capital Food, however the Rights Commissioner satisfied himself that the standard notification letter had been sent to ESA and had not been returned by the postal authorities. Having so satisfied himself, the Rights Commissioner then proceeded to hear Ms Stewart’s complaint.

On 6th September 2012, the Rights Commissioner issued his recommendation:

“Based on the uncontested evidence presented at the hearing, I find that the employer constructively dismissed the claimant. It is clear from the evidence submitted by the claimant that the employer failed to address the claimant’s legitimate grievance resulting in causing the claimant stress and isolation in her workplace. The employer also failed to engage with the claimant in a positive manner in relation to her grievances, leaving her no choice but to resign from her employment after 24 years’ service.

I recommend that the employer pay to the claimant compensation in the sum of €26,000 for breaches of the Unfair Dismissals Acts 1977-1993.

This sum should be paid within 6 weeks of the date of this recommendation.”

Capital Food challenged the recommendation made by the Commissioner, and eventually Ms Stweart sought implementation decision’s throughout 2013 and 2014.

On 29th April 2014, Ms Stewart’s determination application came on before the Employment Appeals Tribunal, and again no-one attended for Capital Food Emporium Limited.

In October 2015, having received written communications from ESA on behalf of Capital Food, the Employment appeals tribunal made a determination “to the like effect as the Rights Commissioner recommendation, that the respondent pay the appellant the sum of €26,000 for breaches of the Unfair Dismissals Acts 1977 to 2007.”

Judicial Review

In January 2016, Capital Food commenced the within judicial review proceedings seeking, inter alia, the following reliefs:

Key Questions Arising

In the High Court, Mr Justice Max Barrett outlined two key questions:

If a party and its representative do not turn up for an official hearing and the presiding officer is satisfied that there has been due notification of the hearing, is it a breach of constitutional or natural justice, or the audi alteram partem principle, for the hearing to proceed?

If a party participates in proceedings to the extent that it acknowledges and accepts that those proceedings were rightly brought against it, can the party later allege that the proceedings were not so brought?

Mr Justice Barrett was satisfied that Capital Food had been notified of the complaint, had appointed ESA to act on its behalf in the complaints process, and had indicated to the RCS that it had no objection to the matter proceeding to investigation.

Considering Capital Food’s complaint’s within their applicaltion for judicial review, Justice Barrett stated that “the principle of audi alteram partem and the rules of constitutional or natural justice afford one a right to be heard, not a right to hold things up indefinitely until one elects, if one elects, to attend for hearing”.

Further, insofar as Capital Food was aggrieved by the decision of the Rights Commissioner, “it had remedies galore in the form of a de novo appeal on the merits to the Employment Appeals Tribunal pursuant to the Unfair Dismissals Acts, with onwards appeals into the courts system”

Declining to grant any of the reliefs sought by Capital Food, Justice Barrett dismissed their application for judicial review.