David Norris (Independent) | Oireachtas source

I am in receipt of communication from a gentleman who is a solicitor and whose wife is a barrister. They operate in this area. A case with which his wife is dealing concerns an employee who has been dismissed from his job on grounds of ill-health. He brought a claim for unfair dismissal to the Employment Appeals Tribunal. Arising out of issues concerning his ill-health, the employee also brought a personal injury case in the High Court. Due to the very short limitation period of two years, he had to commence these proceedings prior to his EAT claim being heard.Due to the very short limitation period of two years, he had to commence his proceedings prior to his EAT claim being heard. On the application of the employer, the EAT postponed the employee's claim until after the disposal of the High Court case. As matters stand, the employee is having considerable difficulty in advancing his High Court case due to resistance by the employer in providing documents on discovery.

Our earlier discussion of this issue had an unsatisfactory outcome although I understand the Minister will give further consideration to it. Given the delays as outlined, the Bill will likely become law before the employee's High Court case is disposed of. This prompted a review of the Bill. Part 4 of the Bill deals with complaints and disputes, and provides that an adjudication officer will hear contested cases which are currently heard by the EAT. Cases before an adjudication officer are to be heard in private and an appeal can be brought to the Labour Court. However, the only route of appeal from the Labour Court is the High Court on a point of law. Part 6 of the Bill deals with the dissolution of the EAT. Section 67 of the Bill deals with transfer of EAT functions to the Labour Court. Section 71 is the nub of the matter. This section provides that anything commenced and not completed before the dissolution of the EAT may be, in so far as it relates to functions transferred to the Labour Court under section 67, carried out or completed by the Labour Court. This is one of these "may" and "shall" provisions. The operation of the word "may" can leave persons, such as the individual referred to in this correspondence, in limbo. It is not clear what is meant by the word "may" or what position would be applicable where the EAT has heard a case but had not made a determination. That is not specified. Once again, the person could be left in limbo. The result of the provisions in sections 67 and 71 is that a claimant or any party with a case that has not been completed when the EAT is dissolved will be deprived of a right of appeal other than on a point of law. The present right of appeal is to the Circuit Court and is a rehearing. Clearly this is unfair and possibly unconstitutional because it leaves such persons in a worse position than complainants whose cases come under the new system. I raise this issue on the advice of a solicitor whose wife is the barrister involved in the aforementioned case.