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1. In its determination of the 11th December, 1996 the Employment Appeals Tribunal (hereinafter called "the Tribunal") determined that the Defendant, Mr. McNeill, was entitled to a statutory redundancy payment and also to a payment of £250 compensation in lieu of notice under the terms in each case of the relevant statutory provisions which are set out below.

2. The determination of the Tribunal did not specify the amount of the redundancy payment but set out the criteria to be used in assessing it. I am informed that subsequently the Tribunal indicated that the amount of the payment should be £1,350, but this calculation does not form part of the Tribunal's determination nor is the calculation or the figure challenged, as an amount, in the endorsement of claim on the special summons grounding these proceedings.

3. The Plaintiff challenges the Tribunal's determination on a number of grounds as follows: it erred in law in holding that the Defendant was continuously employed between the 15th December, 1980 to the 26th June, 1995; that it erred in law in holding that the "frequent breaks" which occurred during this period of employment were periods of lay-off; it erred in law in determining that the Defendant was dismissed by reason of redundancy on the 26th June 1995; it erred in law in determining that the Defendant had sufficient reckonable service to entitle him to a redundancy payment, and it erred in law in failing to hold that the Defendant's entitlement to notice of termination of employment was fully discharged by the Plaintiff.

4. Before dealing with these grounds of challenge it is appropriate that I set out the main statutory provisions of the two codes involved in this case.

5. It was argued on behalf of the Plaintiff that:

6. On behalf of the Defendant it was submitted as a preliminary procedural point that the Minister for Labour should have been joined as a party in the proceedings and that as this has not been done the proceedings are incorrectly constituted and fail to comply with the requirement of the rules that correctly constituted proceedings be instituted within six weeks from the date on which notice of the decision of the Tribunal was given to the party wishing to appeal.

7. Secondly, it was submitted that the present appeal is really an attempt to appeal questions of fact under the guise of a point of law and that the correct procedure would have been by way of judicial review. Counsel referred in particular to the decisions of the Supreme Court in Bates and Others -v- Model Bakery Limited and Anor (1993): 1: IR: 359 and of the High Court (per Murphy J.) in Irish Shipping Limited -v- Adams and Anor (Murphy J.: 30th January, 1987)

8. In his judgment of the 5th July, 1992 in the Model Bakery Limited case the then Chief Justice, Finlay C.J., made the following observations:-

9. Before going further I should say that in the present case Affidavits were filed on behalf of the Applicant which contain some material which appeared to me to offend against the above principles and I have ignored such material. The determination of the Tribunal should stand on its own and there is no need and it is inappropriate, having regard to the above passage, either to repeat the material contained in the determination of the Tribunal and, in particular, there is no need for either adding to or supplementing the evidence before the Tribunal. This judgment is based on the determination of the Tribunal which has appended to it the Schedule of Periods of Lay-Off and on the evidence alluded to in the relevant Superior Court Rules.

10. As already indicated, reliance was placed by the Defendant on the judgment of Murphy J. in Irish Shipping Limited -v- Richard Adams and Others . The judgment in that case is instructive because it demonstrates in a clear way the effect of the jurisdictional restraints which apply to a case such as the present one. In that case Murphy J. pointed to the fact that the Tribunal had determined that two of the Defendant employees were in "continuous employment" at a time when they were in fact employed by shipping companies other than the Plaintiff. Notwithstanding this, however, he said:-

11. I take this to mean that the facts as stated by the Tribunal must be accepted by this Court in the absence of agreement between the parties notwithstanding that the Court would itself have come to a different conclusion and indeed notwithstanding the fact that the Court does not have available to it a ready explanation as to why or how the Tribunal itself could have found the facts as it did.

12. Before stating my conclusions I would observe that there is nothing in the statutory provisions to which I have referred which establishes that a period of lay-off may not exceed twenty-six weeks. In the context of the minimum notice legislation, a shorter period shall count as a period of service and in the context of the redundancy payments legislation continuity of employment shall not be broken by a lay-off of a shorter period. There is nothing to say that a lay-off cannot exceed this period. Indeed the specific provisions to which I have referred suggests that such can be the case. That being so, it is within the jurisdiction of the Tribunal to find that a period of interruption of work in excess of twenty-six weeks is a period of lay-off. If they find this as a fact under the principles to which I have referred, this Court will not disturb such a finding.

13. It is clear from the determination of the Tribunal that the whole question of whether or not the Defendant was dismissed was in issue. In the course of the judgment the following appears:-

14. In my view this is a clear indication that the two questions, namely, dismissal and redundancy, were at issue in the proceedings. In the course of its determination the Tribunal found as follows:-

15. This part of the determination was preceded by a statement that the Tribunal had considered all the evidence adduced at the hearing. It is clear that the judgment of the Tribunal does not purport to be either a verbatim or a complete summary of such evidence. The Tribunal specifically found:-

16. In light of the report as a whole and specifically the foregoing, I am unable to agree with the Plaintiff that the decision of the Tribunal is in error either on the basis that there was no evidence in relation to dismissal or redundancy or, alternatively, on the basis that the report failed to advert to it.

17. Finally, it is submitted that the amount of the decree of £250 in relation to minimum notice was demonstrably an erroneous calculation and, secondly, that the figure of £1,350 (which as I have pointed out does not form part of the determination or award of the Tribunal) was itself demonstrably in error.

18. With regard to the specified figure of £250, it should be noted that the determination of the Tribunal refers to the Defendant's gross outgoing wage as being £250 per week. Under Section 4 of the Act of 1973 there is an entitlement to one week's notice in the case of an employee who has been in continuous service for a period of thirteen weeks or more. In my view it is quite clear that the determination of the Tribunal is within its jurisdiction in regard to the specified amount.

19. With regard to the figure of £1,350, I note that the relevant portion of the Tribunal's determination merely sets out the criteria for assessment. The relevant portion is as follows:-

20. I can find nothing erroneous in this statement of criteria. I have already found that the Tribunal was entitled to find as a matter of fact that the frequent breaks in employment which are set out in the Schedule referred to in its determination were periods of lay-off. Equally in setting out the criteria for assessment of the payment due, the Tribunal refers to the relevant Acts and specifies that account must be taken of the Schedule attached to the Order which shows the periods they have found to be periods of lay-off. That being the case, the correct calculation will have regard to, inter alia, the provisions of Article 8 of Schedule 3 to the Redundancy Payments Act, 1967 which specifies where relevant that an absence by reason of lay-off by the employer shall not be allowable as reckonable service. There is nothing in the award or determination of the Tribunal which indicates otherwise and I am unable to agree that the determination of the Tribunal is in error. If an error has subsequently been made by any party in applying the criteria set out in the determination of the Tribunal then this is a matter which can of course be corrected but for the reasons I have indicated, this is not a matter which arises in the context of an appeal on a point of law from the decision of the Tribunal in this case. I would add that even if a specific figure for redundancy were to appear in the determination of the Tribunal, this figure would not appear to me to be amenable to correction on appeal on a point of law. Once the correct criteria have been set out, as they have been in this case, any error or misapplication of such criteria to the facts does not involve an error of law.

21. Accordingly I must dismiss the Plaintiff's claim.