Statutory Appeals and Judicial Review in Employment Law in Ireland

judicial review

If you appeal a decision of the WRC to the Labour Court and you are still dissatisfied with the outcome you have two options that may be open to you:

  1. A statutory appeal to the High Court on a point of law
  2. A judicial review

A judicial review is appropriate where your case has been handled so badly that you can reasonably argue that you have not had a fair hearing in the first instance-for example at the WRC. An example of a failure by a statutory body, the Employment Appeals Tribunal, to exercise its power properly was in Mythen v Employment Appeals Tribunal [1990] E.L.R. 1. In this case the High Court held that Mythen should not be expected to appeal the decision of the EAT to the Circuit Court when it had failed to hear the case on a mistaken basis thus failing to exercise its statutory power.

In Board of Management Blackrock College v Mary Browne [2013] I.E.H.C. 607 Ms Browne argued that the Board of Management Blackrock College should have proceeded by way of judicial review, not by way of a statutory appeal against the decision of the Labour Court.

The High Court held that the Board of Management Blackrock College was correct in going by way of statutory appeal as it argued that the Labour Court erred in law in reaching its decision and there was a particular statutory appeal provided for on the statute books for this type of circumstance.

The High Court has held that the default position is clear: a party must pursue a statutory appeal rather than a judicial review as the Oireachtas set up such a procedure and put it on the statute books for those dissatisfied with an initial decision. See Koczan v Financial Services Ombudsman [2010] I.E.H.C 407.

The High Court in Koczan v Financial Services Ombudsman [2010] I.E.H.C 407 gave some guidance as to when a judicial review might be appropriate:

  • A total lack of subject matter jurisdiction
  • The integrity or basic fairness of the decision making process
  • Cases touching on the constitutionality of legislation or validity of statutory instruments, where the legal issue cannot properly be raised by way of appeal

These cases must be regarded as exceptions, however, rather than the rule.

Judicial Review

Where a lower court falls into error in respect of jurisdiction, or acted outside its jurisdiction, or failed to exercise its jurisdiction (eg Mythen case above), bringing a judicial review is the way to proceed. Also where a lower court have permitted unfair procedures.

Otherwise, there is a fair degree of curial deference and respect shown by the High Court to the Labour Court and a presumption that it will act within jurisdiction.

Statutory Appeal

The High Court has a limited role in dealing with a statutory appeal from a decision of the Labour Court. The appeal must be based on a point of law or an unsustainable finding of fact, as stated in An Post v Monaghan [2013] I.E.H.C. 404

The High Court cannot weigh strengths or weaknesses of arguments put forward or the Labour Court’s decision thereon.

Order 84C of the Rules of the Superior Courts sets out the rules for a statutory appeal to the High Court which is done by way of an Originating Notice of Motion. There is a time limit of 21 days from the notification of the deciding body’s decision, unless this is extended for ‘good and sufficient reason’ and no injustice is done to any other person.

Where the High Court finds that a lower body has fallen into an error of law-either on its application of the law to the facts or its analysis of the facts-it will send the case back to the lower body to be reheard.

How the High Court Deals with Statutory Appeals and Judicial Reviews

The approach of the High Court is set out in the Henry Denny & Sons (Ireland) Limited v Minister for Social Welfare [1998] 1 IR 34 and is to the effect that the Superior Courts should be slow to interfere with the decisions of expert administrative tribunals, unless ‘conclusions are based upon an identifiable error of law or an unsustainable finding of fact by a tribunal’.

Thus, the circumstances where the Superior Courts will interfere are where there is

  1. An identifiable error of law
  2. No relevant material to support a finding of fact
  3. An irrational or illogical finding of fact
  4. An absence of fair procedures and constitutional justice in how the lower tribunal carried out its hearing


The Supreme Court, in Burke v Miley, Miley and Devils Glen Equestrian Centre Limited [1990] 1 IR 343, held that the Employment Appeals Tribunal should have immunity from costs orders except in cases where there was evidence of mala fides.

However, in employment cases the likelihood is that the two parties in the original dispute will be involved in the judicial review in which case either party can be held liable for costs, depending on the Judge.

In statutory appeal cases costs are more likely to be awarded to one or other of the parties, at the discretion of the Judge.

Injunctions and the Contract of Employment in Ireland-What You Need to Know


employment injunction

What is an injunction? It is a Court order restraining a person from carrying out a specific act or requiring him to perform such an act.


In employment law the use of an injunction where there is a threatened or actual dismissal has increased in the last few decades. And its use is not confined to only dismissal situations.

They have also been sought in relation to sick pay, pickets, advertising positions, ending suspensions etc.

However the increasing use of the employment related injunction must be viewed against the backdrop that Courts are very reluctant to order specific performance of a contract of personal service.

Prohibitory or Mandatory?

The most common form of injunction sought is a prohibitory injunction seeking to restrain the employer from doing a specific act.

An interim or interlocutory injunction is generally sought on an ex parte basis to preserve the status quo in a dispute until the action can be tried in Court (interlocutory) or until a further order can be made by the Court prior to the hearing (interim). It is generally applied for where the matter is particularly urgent.

Principles governing the granting of an injunction

The principles were summarised in Campus Oil v Minister for Industry and Energy [1983] and are

  1. That there is a fair or bona fide issue to be tried-in other words the claim must not be frivolous or vexatious;
  2. If there is a bona fide issue to be tried the Court must then consider whether damages would be an adequate remedy or not. If so the Plaintiff will be required to give an undertaking as to damages, that is, in the event of the injunction being refused the Plaintiff will pay damages to the person injuncted;
  3. That the balance of convenience favours the granting of the injunction rather than its refusal.

As stated above, Courts will refuse to order the specific performance of a contract of employment. Because it would be impossible to supervise and because damages should be an adequate remedy. However there are exceptions but there must be mutual trust and confidence between employer and employee.

When will Courts grant an injunction in an employment law case?

Over the last 30-40 years the Courts have affirmed the traditional position that damages are an adequate remedy in cases of purported wrongful dismissal. However case law has shown that injunctions may potentially be granted in the following 6 situations:

1. where the dismissal is in breach of contract eg the absence of the contractual notice period or the absence of a contractual disciplinary process;

2. where the dismissal is ultra vires;

3. where the dismissal is in breach of fair procedures;

4. where the purported grounds for dismissal are absent eg alleged redundancy;

5. where the dismissal is in breach of a constitutional right;

6. non dismissal injunctions eg preventing the advertising of a position pending the trial of the action.

Wrongful dismissal at common law and statutory unfair dismissal

(3) Where proceedings for damages at common law for wrongful dismissal are initiated by or on behalf of an employee, the employee shall not be entitled to redress under this Act in respect of the dismissal to which the proceedings relate.(Section 15 Unfair Dismissals Act, 1977)

The employee must therefore choose between suing for damages at common law or claiming relief under unfair dismissals legislation. So the employee when seeking an injunction or declaration will not include a claim for damages for breach of contract in order to keep open the door to the unfair dismissals legislation.

Generally, injunctions are sought be employees on an ex parte basis, that is without notice to the other side. However where the application is unsuccessful the consequences for the employee can be serious on two significant grounds:

1. Court costs and

2. the fact that the employee’s application would have been predicated on the subsistence of the employment relationship-clearly this makes it difficult to then claim unfair dismissal at the Employment Appeals Tribunal.

If you are considering seeking a Court injunction in an employment matter, make sure to obtain professional legal advice first.