From time to time we see decisions made at various levels that will confuse rather than enlighten a person as to what is seen as best practice and what is required under the legislation, this can be due to a number of factors - not least of which is a lack of detail in the written determination of the Tribunal.
In a recent case that was appealed to the High Court we can see a situation where a concurring decision was held the entire way through a process, however the level of detail in the initial decision as questioned, and when redrafted the additional detail presented a clear way of thinking and a clear path as to how the Court made their findings, which can only be of benefit to employers and employees alike.
Background
The case, [2014] IEHC 66, Petkevicius v Goode Concrete, is an appeal from a previous EAT decision which stemmed from a judicial review. This issue originally started in a Rights Commissioner hearing in 2010 where the employee who had been on Temporary layoff in September 2009 was made redundant in December 2009. In this case the employee was claiming for payment during their period of temporary layoff and the Rights Commissioner found in the Employer's favour. This was appealed to the EAT in April 2012 who upheld the Rights Commissioner finding. In November 2012 a judicial review of the case quashed the initial decision and ordered a rehearing, the reason being that the Tribunal (EAT) "failed to engage with the legal submissions in respect of the Acts of 1991 and 1967 and to hear evidence in relation to these matters". Effectively they wanted more detail in the decision reached by the EAT.
The High Court was critical of the EAT as follows: “The court held that one could not discern from the pithy words of the Tribunal the essential rationale of its conclusions in the manner required by the Supreme Court in Meadows v. Minister for Justice l20l0l 2 I.R. 701… No essential rationale was set out within the remit of the requirements under O'Donoghue v. An Bord Pleanala [991] I.L.R.M. 750.”
The rehearing in September 2013 addressed this by stating "The Tribunal is satisfied that the Contract of Employment specifically allowed for and recognised the periodic need to operate a scheme of lay-off. The question of custom and practice is not so compelling where the contract actually provides for layoff...the employer reasonably believed that the lay off would not be permanent and that appropriate notice to that effect was delivered...the Tribunal accepts that whilst the contract does not specify that there will be no wages payable during layoff any other interpretation would be a nonsense...the Tribunal determines...that the claim under the Payment of Wages Act 1991 fails."
High Court Appeal
This case was then appealed to the High Court who determined that "there is no right to layoff with pay. it is well established that layoff without pay may occur where it can be established that that is the custom and practice of the trade. This custom must be reasonable, certain and notorious", and that the case law relied upon by the appellant (the employee in this case) is generally only considered where there are no contracts or the contracts are silent on the issue of layoff.
The Court determined that "I refuse the appeal as any other conclusion would be quite illogical as it is not for the court to come to illogical conclusions unless forced to do so by statute".
Impact for Employers
it is refreshing to see such consistency upheld all the way through the Employment Tribunals up as far as the High Court, as the system has been criticised in the past for the inconsistency of determinations. It is also useful to see the High Court directing the EAT to provide more detail in their determinations, which if anything is something that is always welcome from an employers perspective. This detail is what an employer needs to rely upon when running their business and the clearer a Tribunal can make it, the easier it will be for an employer to follow a course of action.
