This case involved a Luas driver, who was dismissed for an alleged breach of an obligation not to engage in other employments without the employer’s permission. In 2017, the employer received a complaint that the employee had been seen driving a taxi.  The employer engaged a private investigator and obtained evidence that the employee had done so on one particular weekend.  The employee admitted that this was so and his mitigating explanation was essentially that he did not do so in any structured ongoing way, but only occasionally to assist his wife who was a taxi driver, but who had fallen seriously ill.

The employee lost his appeal against dismissal at the WRC but the Labour Court ordered re-engagement, with his absence from dismissal to re-engagement to be deemed a period of unpaid suspension. The employer appealed on a ‘point of law’ to the High Court against this decision and another aspect of the Labour Court's determination.

Humphreys J. described the employer's submission as, "... somewhat implausible eight pages of grounds of appeal including 45 paragraphs or subparagraphs of alleged errors of law." However, he summarised the employer's points in relation to the order to re-engage the employee as:

(i). the Labour Court’s alleged failure to engage with or rationally address the law, specifically s. 6 of the 1977 Act;

(ii). the Labour Court’s alleged failure to engage with or rationally address the facts; and

(iii). the Labour Court’s alleged failure to give reasons for the order for re-engagement.

On the first point, Humphreys J. found that: "What the Labour Court did in its determination was to cut to the chase and to correctly identify the actual crucial point of difference between the parties in the terms discussed by Noonan J. in Bank of Ireland v. Reilly [2015] IEHC 241... essentially whether the employer’s action was within the range of responses open to a reasonable employer... Where many elements of the matter are undisputed (as the Labour Court noted here), the duty to give reasons or to articulate the decision in a particularly detailed manner is satisfied if the decision-maker chooses to focus on the matters that are actually in dispute..."

In relation to the second point, Humphreys J. said that, "In the interest of transparency, I may as well say that I probably would not have found this dismissal to be unfair on the second-hand materials I have here, but that is irrelevant because my function is to address only the legality of the decision, not its correctness... It must be remembered that the Labour Court had detailed written and oral submissions, saw and heard the witnesses and had the benefit of searching cross-examination.  Having seen the witnesses is important because no review on affidavit can properly do justice to that... The decision-maker’s assessment of the evidence here is perhaps open to legitimate disagreement, but one cannot say it is outside the bounds of what was open to the Labour Court.  It is always possible to pick apart a decision and to say one thing or another has not been mentioned.  One could do that just as easily with a High Court decision as with a decision of the Labour Court or indeed of anybody else.  But looking in the round, one cannot say that the process of rational decision-making is so lacking as to make the decision unlawful or, perhaps to be more precise, to amount to a point of law which would permit me to allow the appeal."

In relation to the third point of appeal, Humphrey's J. dismissed the comparison of the criticism of a lack of reasoning in relation to awards of compensation under the Employment Equality Acts in Nano Nagle School v Daly [2019] IESC 63 because, "... what was criticised there was an award of compensation akin to general damages which called for some form of reasoning..." and a decision on reinstatement or re-engagement: "... in one sense reinstatement or re-engagement after an unfair dismissal does not require any particular express justification or reasons because it flows naturally from the finding of an unfair dismissal itself."

Humphreys J. concluded that, "One cannot, therefore, say that the finding as to remedy here is unreasoned to such an extent as to warrant being set aside." But he added: "Things might have been different if the employer had made a detailed fight on the remedy point or had sought to put in evidence that re-engagement would have been disruptive or had alternatively requested what might sometimes be the preferable procedure of a separate hearing on the remedy."
https://www.courts.ie/view/judgments/fdacf84a-d97e-4f26-8b02-d5fe575c3a78/c2f611fc-002a-46c0-9287-83af2b620754/2020_IEHC_403.pdf/pdf