Dornan Research and Development Ltd (applicant) v The Labour Court, Ireland and the Attorney General (respondents) and Marie Toye (notice party).

Constitution - Judicial review - Locus standi - Applicant seeking declaration that appeal framework from Labour Court unconstitutional - Whether rights of appeal under different employment statutes should be the same - Constitution of Ireland 1937 - Employment Equality Act 1977 (No 16), section 26 - Unfair Dismissals Act 1977 (No 10), section 10.

The High Court before Mr Justice Geoghegan; judgment delivered 13 May 1998.

Section 26(1)(e) of the Employment Equality Act 1977 is not repugnant to the Constitution. The Employment Equality Act 1977 and the Unfair Dismissals Act 1977 deal with different problems and there is nothing unconstitutional in there being different procedures for resolving those problems. The High Court so held in refusing the relief sought.

Ralph Sutton SC and Dermot Sheehan BL for the applicant; Nuala Butler BL for the respondents; Seamus O'Tuathail BL for the notice party.

Mr Justice Geoghegan said that leave to bring judicial review proceedings in this case was initially granted by Mr Justice Quirke on 30 June 1997 in respect of one complaint only, that is to say, that the Labour Court failed to require of the notice party and furnish on the applicant detailed particulars demanded by the applicant arising out of an application for compensation by the notice party pursuant to a complaint lodged by the notice party against the applicant under sections 26 and 27 of the Employment Equality Act 1977. At the hearing of the application for leave the applicant was allowed to amend its statement of grounds to include a claim for a declaration that section 26(1)(e) of the Employment Equality Act 1977 was unconstitutional because only limited rights of appeal from the Labour Court were granted by the section whereas section 10(4) of the Unfair Dismissals Act 1977 allowed an appeal to the Circuit Court and therefrom to the High Court. In the event, the written submission served by the notice party on the applicant contained detailed particulars of the allegations grounding the compensation claim and therefore the only claim left to be considered by the court was whether section 26(1)(e) of the Employment Equality Act 1977 was unconstitutional.

The notice party claimed compensation for constructive dismissal on the grounds of sexual harassment contrary to the Employment Equality Act 1977. The complaint fell to be determined by section 27 of the Act. Subsection 2 of that section provides that where a dispute is referred to the Labour Court under that section the dispute should be dealt with as if it was brought under section 26. The latter section provides for an appeal to the High Court on a point of law. However, subsection 5 of that section also provides for an appeal to the Circuit Court where the order of the Labour Court directs the employer to pay such compensation as the court considers reasonable. Therefore, as the claim here was for compensation, the applicant could appeal to the High Court if it was felt that the Labour Court had erred in law and could appeal to the Circuit Court in respect of an error on the facts.

The applicant contended that these appeal provisions were unconstitutional because if the claim was brought under the Unfair Dismissals Act 1977 the applicant would have a right of appeal to the Circuit Court on facts and law and a further appeal from the Circuit Court to the High Court. The respondents argued that the applicant lacked locus standi as the applicant could well succeed in the Labour Court and therefore the question of an appeal would not arise. Mr Justice Geoghegan said that this was not a convincing argument but the point did not have to be decided for the reasons below. However, if a constitutional right to an appeal in a particular proceeding could be established and a statutory provision setting up the procedure did not provide for it then a person would be entitled to challenge the constitutionality of the procedure before being subjected to it.

Mr Justice Geoghegan was of the view that the form of relief sought was entirely misconceived. If the court were to declare the section unconstitutional this would merely remove an existing right of appeal but the court could not attempt to direct the legislature to promulgate amending legislation providing for wider rights of appeal. It should also be noted that an appeal, not confined to points of law, does lie in respect of an order directing compensation. Further, even if the only right of appeal was on a point of law to the High Court this would not justify drawing the conclusion that any part of the Employment Equality Act 1977 was unconstitutional. That Act is intended to deal with different problems from the Unfair Dismissals Act 1977 and there could be nothing unconstitutional in there being different procedures for dealing with those problems despite the fact that in certain circumstances the Acts overlap. Accordingly the application for judicial review was refused.

Solicitors: Andrew Dillon (Cork) for the applicant; Chief State Solicitor for the respondent; Noonan Linehan (Cork) for the notice party.