BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
High Court of Ireland Decisions |
||
|
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> The Minister for Finance v The Civil and Public Service Union & [2006] IEHC 145 (11 May 2006) URL: http://www.bailii.org/ie/cases/IEHC/2006/H145.html Cite as: [2006] IEHC 145 |
||
[New search] [Help]
|
Judgment
Title: The Minister for
Finance v The Civil and Public Service Union &
Ors Composition of Court: Laffoy J. Judgment by: Laffoy J. Status of Judgment: Approved |
Neutral
Citation. Number [2006] IEHC 145
THE HIGH
COURT RECORD NO.
2004 No. 336 SP
IN THE
MATTER OF THE EMPLOYMENT EQUALITY ACT, 1977 ON THE APPLICATION OF THE MINISTER FOR FINANCE BETWEEN/ THE
MINISTER FOR FINANCE APPELLANT
AND THE CIVIL AND PUBLIC SERVICE UNION, PUBLIC SERVICE EXECUTIVE UNION, IRISH MUNICIPAL PUBLIC AND CIVIL TRADE UNION ON BEHALF OF TEN CLAIMANTS RESPONDENTS Judgment of Miss Justice Laffoy
delivered 11th May, 2006.Background A job-sharing scheme was introduced in the civil service in 1984. The conditions of the scheme were set out in Circular 3/84, an appendix to which governed matters such as pay, annual and sick leave, superannuation and promotion. In relation to promotion it was provided that job-sharing staff would be eligible for promotion on the same basis as full-time staff, subject to two conditions. The first of the conditions was that, for the purpose of the service requirements governing promotion, each year of service in a job-sharing capacity would be reckoned as the equivalent of six months’ service in a full-time capacity. That condition in relation to eligibility for promotion was applied until the decision of the European Court of Justice in Gerster v. Freistaat Bayern [1997] E.C.R. 1-5273. In that judgment, which was delivered on 2nd October, 1997, the court answered a question referred to it by the Bavarian Administrative Court as to whether a provision of Bavarian State law infringed Council Directive 76/207/EEC (the Directive), ruling as follows:
As appears from the decision of the Labour Court which is the subject of these proceedings (p. 3), the vast majority of civil servants who participated in the job-sharing scheme under Circular 3/84 were women. Following the decision in the Gerster case, it was recognised that it was necessary to amend the job-sharing scheme and this was done in Circular 4/98, which issued on 10th February, 1998. The condition in relation to promotion to which I have referred earlier was deleted and replaced by a condition that, for the purposes of reckonable service (insofar as it affects qualifying service for purposes other than pay, incremental progression and superannuation), credit should be given for all job-sharing service upon the same basis as full-time service. It was directed that the amendment was to apply to all appointments made since 2nd October, 1997, the date on which judgment was delivered in the Gerster case. The Respondents are trade unions which represent about 500 civil servants who participated in the job-sharing scheme prior to the judgment in the Gerster case and in respect of whom, in the early months of 1998, on the basis of that judgment, they referred claims to the Labour Court that they had been discriminated against by the pro-rating of service in determining eligibility for promotion under Circular 3/84. As early as June, 1998 it had become apparent that the application of s. 19(5) of the Employment Equality Act, 1977 (the Act of 1977) was going to arise in a very large number of the claims. Section 19(5) provides as follows:
The appellant appealed to this Court against the decision of 14th January, 2002 on the basis that there had been insufficient evidence, and, in particular, that no evidence had been adduced from any of the ten claimants, to allow it to draw the conclusions it had drawn. The appeal came on for hearing in this Court on 12th December, 2002. The court (Kelly J.) dismissed a motion brought by the respondents seeking a preliminary ruling on a point of law that the court did not have jurisdiction to hear the appeal. In relation to the substantive appeal, the parties agreed that the appeal should be allowed and a consent order was made on 13th December, 2002 ordering that the matter be remitted to the Labour Court for determination of the following issue in the light of such agreed facts or affidavit or oral evidence as might be adduced by either party in respect of any or all of the ten claimants:
The proceedings In these proceedings the appellant seeks an order pursuant to s. 8(3) of the Anti-Discrimination (Pay) Act, 1974 (the Act of 1974) setting aside the 2004 decision on a number of grounds, including – (a) that the Labour Court erred in law and in fact in determining that the claimants had shown reasonable cause for the purposes of s. 19(5) of the Act of 1977 for not lodging their claim within six months from the date of the first occurrence of the act alleged to constitute discrimination, (b) that the Labour Court erred in law in determining that the elaboration of the law in the judgment in the Gerster case constituted a reasonable cause for the purposes of s. 19(5) of the Act of 1977, and (c) that the Labour Court erred in law in determining that reasonable cause existed in respect of periods of time exceeding six years from the date of the alleged act of discrimination by reason of s. 11(2)(a) of the Statute of Limitations, 1957 (the Act of 1957). The appellant also sought a declaration that the elaboration of the law by the European Court of Justice in its judgment in the Gerster case is incapable as a matter of law of constituting reasonable cause for the purposes of s. 19(5) of the Act of 1977. An appeal under s. 8(3) of the Act of 1974 is an appeal on a point of law. The proper approach to be adopted by this Court in determining an appeal on a point of law is well settled. In Henry Denny & Sons (Ireland) Limited v. Minister for Social Welfare [1998] 1 IR 34, which involved an appeal to the High Court from a decision of a Chief Appeals Officer on a question of law, the Supreme Court applied the principles which had been stated by the Supreme Court in Mara (Inspector of Taxes) v. Hummingbird Limited [1982] 2 I.L.R.M. 421 in relation to the approach to be adopted on a case stated by an appeals commissioner under the Income Tax Act, 1967 and, in particular, the following passage from the judgment of Kenny J. at p. 426:
The 2004 decision The Labour Court gave a comprehensive reasoned decision in which, after summarising the affidavit evidence, it made certain findings of fact. It found that each of the claimants was aware of the contents of Circular 3/84, including the conditions set out in the appendix in relation to eligibility for promotion referred to earlier, at the material time. It accepted the substance of a submission made on behalf of the appellant that each claimant was aware of the underlying facts on which her claim was based, and that what she was not aware of was that the bringing of a claim on the basis of those facts could ultimately succeed. It was submitted on behalf of the appellant in this Court that, therefore, the essential argument of the claimants must be understood as being that they were not aware, as a matter of law, that the treatment of which they were fully aware might constitute illegal discrimination on grounds of sex contrary to the Directive and the Act of 1977. In my view, that is a correct analysis of the respondents’ position. The Labour Court also found as fact that: (i) the relevant organs of the State believed that the terms of Circular 34/84 complied with the State’s obligations under European law and, in particular, under the Directive, and (ii) that the trade unions representing civil servants, which included the respondents, did not believe that it offended against the principle of equal treatment as between men and women. The Labour Court then turned to the meaning of s. 19(5). The first question it addressed was when time started to run under that provision. It held that it ran from the date on which the first act of alleged discrimination occurred in each case, recording that, in essence, the parties were ad idem on that point. Each of the claims had been referred to the Labour Court more than six months from the date on which the first act of alleged discrimination occurred, so that each claim was time barred unless reasonable cause could be shown that the time for making the claim should be enlarged. The Labour Court recognised that the net question for consideration by it was whether or not reasonable cause had been shown. Having reviewed the authorities to which it had been referred, the Labour Court set out its conclusions in part as follows:
This factual background provides a reasonable explanation and a justifiable excuse as to why the applicants did not take the initiative, before the decision in Gerster, to challenge the Government as an employer alleging that the job-sharing scheme offended against European Law. Even if they did suspect that the scheme did offend against employment equality law (and there is no evidence to suggest that they did) it is highly unlikely that any of the applicants would have been in a position to take on the financial and other hazards associated with bringing such an action which, in all probability, would have ended in the ECJ. The decision in the Gerster case brought about a significant change in these circumstances in that the Trade Unions, realising that the state of the law was not as they and the Government had understood it to be, felt able to pursue the present cases before this Court. In the light of the decision in Gerster there is no doubt that the applicants have a good arguable case on the merits, which in the interest of justice should be heard. Moreover, it is accepted by the [appellant] that [he has] not suffered any prejudice as a result of the delay in that all witnesses and records necessary to defend all and every action are still available.” The law The court has been referred to only one decision of this Court in which s. 19(5) was considered: the decision of Murphy J. in Cork Corporation v. Cahill [1987] I.R. 478. The claimants in that case were female attendants employed by Cork Corporation at its swimming pools. Approximately one year prior to the commencement of the Act of 1977 their union had entered into an agreement with Cork Corporation in relation to the rostering of male and female attendants at the swimming pools. More than six years after the agreement was made, the complainants complained to Cork Corporation that it discriminated against them contrary to s. 3(4) of the Act of 1977. Within two months thereafter the matter was referred to the Labour Court. After a preliminary hearing, the Labour Court notified Cork Corporation that it was satisfied that reasonable cause had been shown in accordance with s. 19(5) to allow the issue to be dealt with. The matter was then referred to an equality officer. The recommendation of the equality officer was appealed by the claimants to the Labour Court. The Labour Court allowed compensation to the claimants, following which Cork Corporation appealed to this Court. On the appeal, Cork Corporation contested the ruling of the Labour Court and the application of s. 19(5). From reading the judgment of Murphy J. it is clear that he encountered a number of problems. First, neither party had put evidence before the Court as to what evidence had been given to the Labour Court in relation to the conduct of the claimants between the date when the Act came into operation and February, 1981, when, it was said, they made complaints to local trade union officials. Murphy J. was not prepared to infer that no evidence was given to the Labour Court as to the conduct of the claimants during that period. Secondly, there was no other appropriate record of what transpired before the Labour Court when the hearing in relation to the application of s. 19(5) took place. Thirdly, there was no direct and immediate challenge to the manner in which the Labour Court exercised its jurisdiction in relation to the application of s. 19(5). Having alluded to these problems, Murphy J. stated as follows:
The primary argument advanced by the appellant in support of his contention that the 2004 decision should be set aside was that, as a matter of law, ignorance of one’s legal position, as distinct from the ignorance of the underlying facts which might constitute the alleged wrongful act, cannot as a matter of law constitute justification for an extension of the time limit stipulated in s. 19(5). Counsel for the appellant cited two authorities, both of which raise the same issue, in support of that proposition: the decision of this Court (Carroll J.) in Murphy v. Ireland [1996] 3 I.R. 307; and the decision of the Supreme Court, upholding a decision at first instance of Carroll J., in McDonnell v. Ireland [1998] I I.R. 134. The issue in each case was whether the plaintiff was barred by the provisions of s. 11(2) of the Act of 1957 from pursuing a claim against the State arising from the purported forfeiture of an office he held in the public service following a conviction of a scheduled offence in an action initiated more than six years after the purported forfeiture but after the Supreme Court had held in Cox v. Ireland [1992] 2 I.R. 503 that s. 34 of the Offences Against the State Act, 1939, under which the purported forfeitures were effected, was unconstitutional. The relevant portion of s.11(2)(a) of the Act of 1957 provides:
The time limitation at issue in the Murphy and McDonnell cases differs from the provision at issue here in that it imposes an absolute bar on the bringing of an action when the stipulated period has expired and does not provide for extending time. The issues which the courts had to address in each of the cases were whether the type of action being pursued came within the Act of 1957 at all and, if it did, when the cause of action accrued, that is to say, when time started running. The instant case unquestionably comes within s. 19(5) and, as I have stated, the parties are in agreement as to when time started running. While the content of the judgments in the Murphy and McDonnell cases was determined by the issues that had to be addressed, for present purposes what is important is to identify the underlying rationale of the judgments. In the Murphy case, having held that the existing law of tort provided adequate protection for the enforcement of the constitutional rights which the plaintiff was seeking to enforce, but that the statutory limitation periods applicable to torts also applied, Carroll J. stated as follows (at p. 313)
The plaintiff’s problem is that he did not do this. A point arrived in May, 1980 when the plaintiff’s claim insofar as it was based on tort or breach of duty became statute barred and insofar as it claimed equitable relief became liable to be defeated by a plea of laches. Neither the plaintiff nor his superiors can be blamed for presuming that s. 34 of the Act of 1939 did not violate the Constitution. Counsel for the plaintiff submits that it would be unfair to invoke the doctrine of laches against the plaintiff who left school at the age of 16 and could hardly, therefore, be expected to know his constitutional rights. On the other hand, the plaintiff had become a clerk in the public service and at the date of his conviction was under consideration for promotion. Later, he entered the butchering business and came to run his own butchers shop. So there is no question of his being under any form of disability.” In the 2004 decision the Labour Court considered the decision in the Murphy case, but concluded that it was not relevant to the issue it was concerned with because, unlike the Act of 1957, there is express provision in s.19(5) for the enlargement of time where reasonable cause is shown. While such a distinction exists, in my view, it does not render the decisions in the Murphy and McDonnell cases irrelevant to the ascertainment of the intention of the Oireachtas in enacting s. 19(5). It was accepted by the parties that O. 84, r. 21 of the Rules of the Superior Courts, 1986, (the Rules) which delimits the time for bringing an application for leave to apply for judicial review, is analogous to s. 19(5). Sub-rule (1) of O. 84, r. 21 provides as follows:
Counsel for the respondents accepted that the Labour Court was correct in applying the reasoning of Costello J. in the O’Donnell case on the meaning of “good reasons” by analogy to the meaning of “unless reasonable cause is shown” in s. 19(5). Where the parties diverged was as to how it should be applied. Counsel for the respondents laid particular emphasis on the fact that Costello J. derived assistance from the decision of the Supreme Court in State (Furey) v. Minister for Defence [1988] I.L.R.M. 89 in applying the principles he had enunciated, in the passage which I have quoted, to the facts before him. Costello J. observed that the evidence established that, as regards part of the period of delay, Mr. O’Donnell was contesting his liability to pay water charges not through the courts but with the assistance of three different public representatives and queried whether that course of conduct was a “good reason” within the meaning of O. 84, r. 21 which would have justified the court extending the time for applying for judicial review of the relevant orders imposing the water charges, had the proceedings been brought by way of judicial review rather than by plenary action. Having stated that assistance in answering the question was to be found in the Furey case, he continued as follows (at p. 317):
The facts of this case are not identical with those in Furey. But they are close enough. Mr. O’Donnell, like Mr. Furey, tried to get redress through political pressure. When he was advised to do so, he went to a solicitor. It is true that he has not sworn that he did not get legal advice before this because he had not the means to do so but I think I am entitled to take into account the notorious fact that current levels of legal fees are perceived by most people to be very high and that this fact constitutes a powerful disincentive to legal action by persons like Mr. O’Donnell who are in receipt of a public service pension and who live in a home which could be seized and sold to pay costs should his action fail. I think therefore that his efforts to settle the dispute through the intervention of public representatives establish that there is reasonable explanation as to why between June, 1988 and July, 1989 he did not institute these proceedings.”
As the 2004 decision illustrates, what was correctly deduced by the Labour Court from the authorities in which O. 84, r. 21 and O. 84A, r. 4 were being applied is that the onus is on the respondents in the instant case to establish that reasonable cause has been shown and the respondents must not only establish reasons which explain the delay but also which afford a justifiable excuse for it. However, I do not think that the Labour Court was correct in its conclusion that the imperative which applies in the area of public procurement that a review of a contract should be initiated as quickly as possible, which was recognised in the Dekra case, does not apply to issues in relation to discrimination in the sphere of employment under the Directive or the Act of 1977. As has been argued on behalf of the appellant in earlier stages of this dispute, the treatment of one employee in this type of situation may have consequences for other employees. Hence, the short limitation period provided for in s. 19(5). The respondents have not pointed to any Irish authority in which ignorance of legal rights has been found to have been a justifiable excuse for delay in initiating proceedings. The appellant has pointed to one case in which this Court (Morris J., as he then was) held that there is no authority for the proposition that a plaintiff was entitled to postpone bringing a case until evidence was available which will copper fasten the matter in his or her favour: McDonald v. McBain [1991] 1 I.R. 284. Counsel for the respondents relied on a number of English authorities which, it was submitted, support the respondents’ position. The most recent of the authorities relied on by the respondents, Marks & Spencer Plc v. Williams-Ryan [2005] 1 C.R. 1293, was a decision of the Court of Appeal of England and Wales which post-dates the 2004 decision. However, it applied two earlier decisions of the Court of Appeal which are referred to in the 2004 decision: Dedman v. British Building & Engineering Appliances Limited [1974] I.C.R. 53 and Palmer v. Southend-on-Sea Borough Council [1984] I.C.R. 373. The statutory provision in issue on that appeal provided that an employment tribunal should not consider a complaint of unfair dismissal unless it was presented to the tribunal before the end of the period of three months beginning with the effective date of termination or “within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months”. In identifying the legal principles applicable to that provision, Lord Phillips M.R. stated as follows:
21. In accordance with that approach it has repeatedly been held that when deciding whether it was reasonably practicable for an employee to make a complaint to an employment tribunal, regard should be had to what, if anything, the employee knew about the right to complain to the employment tribunal and of the time limit for making such a complaint. Ignorance of either does not necessarily render it not reasonably practicable to bring a complaint in time. It is necessary to consider not merely what the employee knew, but what knowledge the employee should have had had he or she acted reasonably in all the circumstances. So far as that question is concerned there is a typically lucid passage in the judgment of Brandon L.J. in Walls Meat Company Limited v. Khan [1979] I.C.R. 52, 61 which I would commend:
(c) that it was necessary for him to make it within a period of three months from the date of dismissal, an industrial tribunal could and should be satisfied that it was not reasonably practicable for his complaint to be presented within the period concerned. For this purpose I do not see any difference, provided always that the ignorance in each case is reasonable, between ignorance of (a) the existence of the right, or (b) the proper way to exercise it, or (c) the proper time within which to exercise it. In particular, so far as (c), the proper time within which to exercise the right, is concerned, I do not see how it can justly be said to be reasonably practicable for a person to comply with a time limit of which he is reasonably ignorant. While I do not, as I have said, see any difference in principle in the effect of reasonable ignorance as between the three cases to which I have referred, I do see a great deal of difference in practice in the ease or difficulty with which a finding that the relevant ignorance is reasonable may be made. But, where a person is reasonably ignorant of the existence of the right at all, he can hardly be found to have been acting unreasonably in not making enquiries as to how, and within what period, he should exercise it. By contrast, if he does not know of the existence of the right, it may in many cases at least, though not necessarily all, be difficult for him to satisfy an industrial tribunal that he behaved reasonably in not making such enquiries.’ 23. … 24. The third proposition is unquestionably one of law. It is, expanding it a little, that if an employee takes advice about his or her rights and is given incorrect or inadequate advice, the employee cannot rely upon that fact to excuse a failure to make a complaint to the employment tribunal in due time. The fault on the part of the adviser is attributed to the employee. …” The facts in that case were that the claimant employee, a part-time sales assistant, was summarily dismissed for gross misconduct on 17th April, 2003, following a disciplinary hearing into an incident on the shop floor. At the earliest opportunity she telephoned the Citizens’ Advice Bureau. In a brief conversation she was advised to exhaust the employer’s internal appeal procedures, but not told of her right to complain to an employment tribunal. On 24th April, 2003 a letter of dismissal was sent informing her of the internal appeal procedure and of her right to complain to an employment tribunal, for which she would need independent advice. The information she received from the employer did not mention the time limit for complaints to the employment tribunal. She proceeded with the internal appeals procedure, which concluded by letter of 31st July, 2003, received several days later, confirming her dismissal. On 20th June, 2003 she had obtained a blank form and information concerning a complaint to an employment tribunal, but she did not find time to study the documents due to pressure of a teacher training course. The three-month time limit for presenting her complaint to the employment tribunal expired on 16th July, 2003. The tribunal received her complaint of unfair dismissal on 15th August, 2003 and concluded that it had jurisdiction to hear the complaint because it had not been reasonably practicable for her to present it before the time limit expired and it had been presented within a reasonable time thereafter. The employer’s appeal to the Employment Appeal Tribunal was dismissed, as was the appeal to the Court of Appeal. The decision of the Court of Appeal in the Marks & Spencer case was not concerned with ignorance of the law in the sense which the appellant asserts is the foundation of the respondents’ case here – that the respondents were ignorant of the legal consequences of the factual situation in which they found themselves, that is to say, that it might constitute illegal discrimination on the grounds of sex contrary to the Directive and the Act of 1977. That decision was concerned with ignorance of the law as it applied to the claimant in the sense that under the law a complaint could be brought by her to an employment tribunal, but it had to be brought within a specific time limit and she was ignorant as to what that time limit was. It is not in issue in this case that the respondents, or the claimants whom they represent, were ignorant of their entitlement to refer a dispute in relation to discrimination to the Labour Court, or the time limit within which such dispute was required to be brought by virtue of s. 19(5), or both the entitlement and the time limit. However, another authority relied on by the plaintiff does raise an issue of ignorance of the law in the sense in which it is raised in this case. That is the decision of the Employment Appeals Tribunal in Mills and Crown Prosecution Service v. Marshall [1998] IRLR 494. In that case, Ms. Marshall, a transsexual, was offered a post with the Crown Prosecution Service in 1993 when she was a man. When she explained to Barbara Mills, the Director of Public Prosecutions, that she intended to take up the position as a woman, the offer was withdrawn. She did not bring a sex discrimination complaint in respect of this until after the decision of the European Court of Justice in P v. S on 30th April, 1996, in which it was held that the Directive precludes discrimination against a transsexual for a reason related to gender assignment. The relevant statutory provision provided that an industrial tribunal should not consider a complaint unless it was presented to the tribunal before the end of a period of three months beginning when the act complained of was done, but the tribunal was given a discretion to extend the time limit “if, in all the circumstances of the case, it considers that it is just and equitable to do so”. In delivering the decision of the Employment Appeals Tribunal, the President, Mr. Justice Morrison, rejecting an argument that to allow Ms. Marshall to present her complaint would offend against the principle of legal certainty, went on construe that provision (starting at para. 21) stating as follows:
As a matter of statutory language, the discretion which is given by the Act to extend time is unfettered and may include a consideration of the date from which the complainant could reasonably have become aware of her right to present a worthwhile complaint.” As a general proposition, in my view, the English authorities, which were decided in the context of different statutory criteria for extending the limitation period than apply in the instant case, do not provide guidance as to how s. 19(5) should be construed or applied. In particular, the statutory criterion which governed the issue in Mills and the Crown Prosecution Service v. Marshall, whether it was “just and equitable”, is a much broader and more fluid concept than the concept of “reasonable cause” and confers a wider discretion. Circumstances which would justify a finding that initiating a claim was not reasonably practicable would not necessarily amount to reasonable cause shown for not initiating a claim within a stipulated period. Apart from those differences, the issue for determination by the Labour Court and the issue which arises on this appeal has to be determined in the light of the jurisprudence of the Irish courts on limitation periods. Conclusions The answer to the question of law posed in the order of 13th December, 2002 turns on the proper construction of s. 19(5). Put another way, the question to be answered is whether, in enacting s. 19(5), the Oireachtas intended that the expression “reasonable cause” should encompass, as a justifiable excuse for delay, a situation in which a person who, with the knowledge of the material underlying facts, desisted from pursuing a claim of discrimination until he or she became aware, in consequence of publicity surrounding a court decision in point, that the claim, if pursued, would be likely to be successful. In my view, it must be assumed that the Oireachtas intended that the jurisprudence which generally governs time limits would be applicable to s. 19(5). Although not directly in point here, the established jurisprudence in this jurisdiction is that knowledge or discoverability of a material fact is not the trigger which sets a statutory limitation period running, unless the legislature expressly so provides. This is clearly illustrated by the decision of the Supreme Court in a medical negligence case, Hegarty v. O’Loughran 1 I.R. 148, which is referred to in the judgment of Morris J. in McDonald v. McBane. Morris J. quoted the following passage from the judgment of Finlay C.J. at p. 157:
Further, under the established jurisprudence in this jurisdiction lack of knowledge or awareness on the part of a claimant, or the absence of a legal precedent which indicates, that, as a matter of law, a claim will have a successful outcome does not prevent a statutory limitation period from starting to run. That is illustrated by the decision of this Court in the Murphy case and the decision of the Supreme Court in the McDonnell case. In s. 19(5) the Oireachtas has prescribed a relatively short limitation period, albeit one which can be extended where a claimant establishes “reasonable cause”. The expression “reasonable cause”, in my view, broadly speaking connotes similar factors and, in particular, similar conduct on the part of the claimant, as is connoted by the expression “good cause” in O. 84, r. 21. In relation to the core issue which arises in the instant case, it seems to me that, given the jurisprudential backdrop in relation to prescribing time limits generally, which I have outlined, it cannot have been the intention of the Oireachtas that failure to pursue a claim which has crystallised until a legal precedent is in place which clarifies the law and indicates that the claim is likely to be successful, followed by prosecution of the claim when the precedent is publicised, should constitute “reasonable cause” within the meaning of s. 19(5). In short, while the delay on the part of the claimants in referring their claims to the Labour Court has been explained, in my view, a justifiable excuse for the delay has not been established. In setting out the conclusions of the Labour Court earlier, I adverted to the fact that the appellant takes issue with certain findings of fact incorporated in the Labour Court’s conclusions. The appellant’s submissions embraced arguments which go to what the state of knowledge of the claimants as to the sustainability of their claims actually was, or ought to have been, suggesting that the claimants were, or should have been, aware of the illegality of the job-sharing scheme having regard to the Directive and the Act of 1977. An argument relied on in this context was the fact that three of the claimants raised the issue of equality discrimination in relation to the implementation of the job-sharing scheme and, in particular, the pro rata calculation of service: one in connection with her entitlement to maternity leave, another in relation to the payment of an IT gratuity and the third in relation to promotion. It was also argued that, in any event, prior to the decision of the European Court of Justice in Gerster a certain level of uncertainty surrounded the legality of a system whereby the service of job-sharers for promotion purposes was calculated on a pro rata basis, reference being made, in particular, to the decisions of the European Court of Justice in Bilka-Kaufhaus GmbH v. Weber von Hartz [1986] ECR 1607 and in Nimz v. Freie und Hansestadt Hamburg [1991] ECR 1-297. I consider it unnecessary to address these arguments. In my view, the resolution of the core issue in this case involves a fundamental point of principle. The state of the knowledge or awareness which the claimants had, or which they or their unions ought to have had, is irrelevant in that resolution. Finally, the limitation period stipulated in s. 11(2)(a) of the Act of 1957 has no direct application to the process initiated by the respondents under s. 19 of the Act of 1977, although it would have relevance if the claimants were to institute proceedings in a court for breach of statutory duty of breach of the State’s obligations under Community law. Decision The 2004 decision is set aside. |
