THE HIGH COURT
			 1997 No.  25 Sp
BETWEEN
AN POST 
			PLAINTIFF
AND
OLIVER McNEILL
			DEFENDANT

JUDGMENT  delivered on the 21st day of October,  1997 by O'Sullivan J.
	
	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.
	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.
	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.  
	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.

MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS 1973 - 1991
	4.- (1)		An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of 13 weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of sub-section (2) of this section.
	     (2)		The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be -
			(a)	if the employee has been in the continuous service of 	his employer for less than two years, one week ...
	11.-(1)  	any dispute arising on any matter under this Act ... shall be referred in the prescribed manner to the Tribunal.
	      (2)		the decision of the Tribunal on any matter referred to it under this section shall be final and conclusive, save that any person dissatisfied with the decision may appeal therefrom to the High Court on a question of law.
	12.-(1)	If an employer -
		(a)	fails to give an employee the notice required by Section 4(2) of this Act, ...
			the employee may refer the matter to the Tribunal for arbitration and the Tribunal may award to the employee compensation for any loss sustained by him by reason of the default of the employer.

FIRST SCHEDULE
COMPUTATION OF CONTINUOUS SERVICE
CONTINUITY OF SERVICE
	1.	The service of an employee in his employment shall be deemed to be continuous unless that service is terminated by - 
		(a)	the dismissal of the employee by his employer, or
		(b)	the employee voluntarily leaving his employment.

	3.	a lay-off shall not amount to the termination by an employer of his employee's service.
	
COMPUTABLE SERVICE
	10.	if an employee is absent from his employment for not more than twenty-six weeks between consecutive periods of employment because of -
		(a)	a lay-off, ...
			such period shall count as a period of service.
REDUNDANCY PAYMENTS ACTS 1967 - 1991
Redundancy Payments Act, 1967
	7.-(1)	An employee, if he is dismissed by his employer by reason of redundancy or is laid off or kept on short time for the minimum period, shall, subject to this Act, be entitled to the payment of monies which shall be known (and are in this Act referred to) as redundancy payment provided -
		(a)	he has been employed for the requisite period, and ...
	    (2)	For the purposes of sub-section (1), an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is attributable wholly or mainly to -
		(a)	the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him, or has ceased or intends to cease, to carry on that business in the place where the employee was so employed, or 
		(b)	the fact that the requirements of that business for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish, or 
		(c)	the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee has been employed (or had been doing before his dismissal) to be done by other employees or otherwise, or 
		(d)	the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done in a different manner for which the employee is not sufficiently qualified or trained, or 
		(e)	the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained.

	(5)	In this section "requisite period" means a period of 104 weeks' continuous employment (within the meaning of 
		Schedule 3) of the employee by the employer who dismissed him, laid him off or kept him on short time, but excluding any period of employment with that employer before the employee had attained the age of sixteen years.  
	39.-(1)	There shall be a Tribunal (which shall be known as the Employment Appeals Tribunal and in this section hereinafter referred to as the Tribunal) to determine the appeals provided for in this section.
	     (14)	The decision of the Tribunal on any question referred to it under this section shall be final and conclusive, save that any person dissatisfied with the decision may appeal therefrom to the High Court on a question of law.

SCHEDULE III
CONTINUOUS EMPLOYMENT
	5.(1)	Where an employee's period of employment is or was interrupted by any one of  the following -
		(b)	a period of not more than twenty six consecutive weeks by reason of -
			(i)	lay-off, ...
		continuity of employment shall not be broken by such interruption whether or not notice of termination of the contract of employment has or had been given.

RECKONABLE SERVICE
	8.	None of the following absences from work shall be allowable as reckonable service - 
		(d)	absence by reason of lay-off by the employer.  

RULES OF THE SUPERIOR COURTS:  ORDER 105:  APPEALS FROM THE EMPLOYMENT APPEALS TRIBUNAL
	Rule 3:		The summons shall be served on the Minister for Labour and on all parties to the decision of the Tribunal.  
	 Rule 4:	The summons shall be issued within twenty one days of the date on which notice of the decision of the Tribunal was given to the party appealing; provided that the time within which the summons may be issued may be extended on an application ex parte at any time within six weeks from the date on which notice of the decision of the Tribunal was given to the party wishing to appeal. 

	It was argued on behalf of the Plaintiff that: 

(a)	the determination of the Tribunal, which included as an Appendix a Schedule of periods of lay-off, itself shows that there was not a sufficient continuous service to entitle the Defendant either to redundancy payment or payment in lieu of minimum notice;
(b)	the determination also shows that there was no evidence of dismissal which is a necessary pre-condition to establishing entitlement; and
(c)	the determination also shows that there was no evidence of any one of the several statutory bases for establishing that any dismissal was a dismissal by reason of redundancy.
(d)	It was also submitted that the amount of £1,350 was calculated on an incorrect basis namely that periods of lay-off in excess of twenty-six weeks were incorrectly credited to the Defendant as periods of employment.

	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.
	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)

THE LAW
	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:-

	It is of importance to point out, however that having regard to the clear terms of the two sections providing for a final and conclusive decision by the Tribunal, subject only to an appeal to the High Court on a question of law, that what would appear to be the appropriate procedure is the summons as provided for in Order 105, which should state the decision being appealed against, the question of law which it is suggested was in error, and the grounds of the appeal, and that it should be supported only by an Affidavit or Affidavits exhibiting the determination of the Employment Appeals Tribunal, including any findings of fact or recital of evidence made by it, and, in effect, identifying the parties and the grounds on which the aggrieved party seeks a determination of a question of law.  There does not appear to be any room, however, in the procedure, having regard to the terms of the two sections involved, for repeating, and in particular, for adding to or supplementing evidence which was given before the Employment Appeals Tribunal concerning the circumstances of the dispute which have referred to that Tribunal."

	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.
	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:-

	"Nevertheless it seems to me that on the hearing of an appeal to this Court on a point of law under the Redundancy payments act, 1967 I must - in the absence of agreement between the parties - accept the facts as stated in the decision of the Tribunal."
 
	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.
	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.

CONCLUSIONS
1.	I do not think that it is necessary to join the Minister for Labour as a party.  He must indeed be served and I have been furnished with an Affidavit of service.  The rules specify that the Summons must be issued, as distinct from served, within twenty-one days of the date specified and this can be extended on ex parte application within a period of six weeks from that date.  In my view the proceedings are correctly constituted within time.
2.	The Plaintiff argues that there is no determination that there was a dismissal and that this is a necessary statutory pre-condition to the establishment of entitlement.

	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:-

	"It was stated that he (that is the Defendant) was not dismissed but refused to work and was not dismissed for reasons of redundancy."

	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:-

	"Our finding as regards the redundancy application is that the claimant is entitled to a statutory redundancy payment". 

	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:-

	 "...that the frequent breaks in employment which we regarded as lay-off did not break the claimant's continuity of service".
	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.
	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.
	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.  
	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:-

	"Our finding as regards the redundancy application is that the claimant is entitled to a statutory redundancy payment.  The criteria to be used in assessing the payment due includes the record of the claimant's casual service with the Respondent as follows:
  	His date of birth being 21st May, 1939; the commencement date of his employment on the 15th December, 1980, and its termination on the 
	26th June, 1995; with account to be taken of the Schedule attached to this Order showing the periods we have regarded as lay-offs; his gross outgoing wage of £250 per week and his normal forty hour working week, under the terms of the redundancy payments Acts, 1967 - 1991."

	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.
	Accordingly I must dismiss the Plaintiff's claim.