Case number: 170215
This review has its background in a claim the applicant lodged with the Rights Commissioner against her employer. The Rights Commissioner, in its recommendation of 12 January 2015, upheld the applicant's complaint that her employer was in breach of the Terms of Employment Act. Among other things, the Rights Commissioner's recommendation required the employer to provide the applicant with a written statement of the particulars of her terms and conditions of employment that comply with the requirement of the Terms of Employment Act.
Both the applicant and the employer appealed that recommendation to the EAT ("Case 1" and "Case 2"). However, the employer withdrew its appeal (Case 2) on the day of the hearing. The EAT affirmed the recommendation of the Rights Commissioner.
On 8 February 2017, the applicant made a request to the EAT under section 10 of the FOI Act for a statement of reasons for "... decisions relating to [Case 1] heard in conjunction with [Case 2] concerning appeals against the Rights Commissioner decision under Terms of Employment (Information) Act 1994 and 2012 legislation". In particular, she sought "... the reasons for the refusal of the Tribunal to determine my Terms and Conditions of Employment as requested by me of the Tribunal, evidence of which was provided by me to the Tribunal and specific provision for which is … contained in the Act.”
In its decision of 3 March 2017, the EAT stated that it had decided to grant the request. It stated that the Tribunal did not make a decision under Case 2 as it was withdrawn. In respect of Case 1, it referred to the determination issued by the Tribunal on 13 May 2016 which stated that "Having regard to the evidence adduced the Tribunal affirms the Recommendation of the Rights Commissioner ref: [Case 1]". On the matter of the applicant's request for reasons for the refusal of the Tribunal to determine her terms and conditions of employment, the EAT stated that Tribunal affirmed the recommendation of the Rights Commissioner that clearly set out the deficiencies in the contract of employment and required the employer to provide a written statement of those particulars of her terms and conditions.
On 22 March 2017, the applicant sought an internal review of that decision. On 12 April 2017, while providing additional information relating to the Tribunal's determination, the EAT nevertheless varied its original decision stating that it was refusing the request on the ground that once the Tribunal has issued a determination, it has no further role in the matter. On 7 May 2017, the applicant sought a review by this Office of the EAT’s decision.
I have decided to bring this review to a close by way of a formal, binding decision. In conducting the review, I have had regard to the correspondence between the applicant and the EAT on the matter, and to the communications between this Office and both the applicant and the EAT in relation to this review.
It is clear from the applicant's correspondence with this Office in respect of the determination issued by the Tribunal under Case 1 that her primary concern is to establish why the Tribunal chose to affirm the recommendation of the Rights Commissioner, requiring her employer to provide a written statement of the particulars of her terms and conditions based on the deficiencies set out, rather than providing that statement itself, as she believes it is empowered to do.
This review is concerned solely with the question of whether the EAT has complied with the requirements of section 10 in respect of the applicant's request regarding EAT Case 1.
Section 10 of the FOI Act provides that a person who is affected by an act of an FOI body, and has a material interest in a matter affected by the act or to which it relates, is entitled to a statement of reasons for the act as well as a statement of any findings on any material issues of fact made for the purposes of that act.
Section 10(5) provides that a person has a material interest in a matter affected by an act of an FOI body or to which it relates:
"if the consequence or effect of the act may be to confer on, or withhold from, the person a benefit without also conferring it on or withholding it from persons in general or a class of persons which is of significant size having regard to all the circumstances and of which the person is a member."
"Benefit" is defined at section 10(13) as including:
"(a) any advantage to the person,
(b) in respect of an act of an FOI body done at the request of the person, any consequence or effect thereof relating the person, and
(c) the avoidance of a loss, liability, penalty, forfeiture, punishment or other disadvantage affecting the person."
This Office has previously set out its approach to, and interpretation of, the provision of the FOI Acts 1997 & 2003 (section 18) that is equivalent to section 10. While not identical, section 10 is quite similar to that provision. Insofar as it applies to this review, I am satisfied that the approach previously adopted remains relevant to my consideration of section 10 of the Act of 2014, including, in particular, the following principles:
Taking section 10 as a whole, the word "act" in the section must be interpreted as the exercise of (or refusal to exercise) a power or function which may result in the conferring or withholding of a benefit. In addition, the reasons for the act must have a bearing on the outcome of whether a person receives or does not receive a benefit or suffers a loss or a penalty or other disadvantage. In other words, if the same outcome would result regardless of the reasons for the act in question then section 10 does not apply to that act.
There are many acts/decisions taken by FOI bodies where section 10 has no relevance. The Oireachtas could not have intended that an FOI body should be required, on demand, to provide a written statement of reasons and findings on any material issues of fact made for the purposes of every single action taken by it. There will be many instances where a number of secondary actions/decisions will be taken in the course of making a substantive decision which affects a person and where that person has a material interest in a matter affected by that substantive decision or to which it relates. However, section 10 does not entitle a person affected by a substantive decision to a statement of reasons in respect of each and every action taken in arriving at that decision.
The requirement on the FOI body to provide a statement of reasons for an act of the body does not require each and every member of staff who might have contributed in any way or been involved in the decision making process to provide an account of his/her reasons for every action he/she carried out during the course of the body's decision making process. What is required is that the head provide a statement of reasons which adequately explains why the body acted as it did.
The appropriateness, or otherwise, of administrative actions taken by FOI bodies is not relevant for the purposes of section 10. Indeed, the remit of this Office does not extend to examining the appropriateness or otherwise of the particular act for which reasons are sought under section 10. Thus, even if the act or decision in question was somehow flawed, that would not be something that this Office could require the FOI body to rectify.
In this case, the Rights Commissioner upheld the applicant's complaint that her employer was in breach of the Terms of Employment Act. The recommendation set out the deficiencies in the contract of employment and required the employer to provide the applicant with a written statement of the particulars of her terms and conditions of employment that comply with the requirement of the Terms of Employment Act. On appeal, the EAT affirmed the recommendation of the Rights Commissioner. It informed the applicant that if she was dissatisfied with its determination, she could appeal to the High Court on a point of law, and could seek enforcement in the District Court where her employer failed to provide her with the relevant terms and conditions.
It seems to me that the substantive decision of the Tribunal affecting the applicant was to affirm the decision of the Rights Commissioner. As the EAT explained, the Tribunal had the power to affirm, vary, or set aside the recommendation, and it decided to affirm the decision. The effect of that determination was that the Tribunal, having considered the evidence, agreed that the applicant's employer was in breach of the Terms of Employment Act and that she was entitled to a written statement of the particulars of her terms and conditions of employment that comply with the requirement of that Act. That determination was, in my view, the "act" of the Tribunal that affected the applicant and in which she has a material interest as the act clearly conferred a benefit. The benefit conferred was the confirmation of the applicant's entitlement to a written statement of her terms and conditions of employment.
The applicant is clearly of the view that it was open to the Tribunal to provide that statement itself. Therefore, the "act" for which the applicant seeks a statement of reasons is the refusal of the Tribunal to provide the statement itself. In my view, that "act" is not one that conferred on, or withheld from, the applicant a benefit. I do not accept that by not providing the written statement, the Tribunal was withholding the benefit of her entitlement to such a statement. As such, I do not consider that the applicant has a material interest a matter affected by the act or to which it relates.
In her application for review, the applicant argued that by refusing to provide the statement of her terms and conditions of employment itself, she is not in a position to enforce the decision in the normal manner as the decision does not specify what is meant by "statement of the particulars of your terms and conditions of employment consistent with the terms agreed with you when your employment commenced". She considers that she is therefore in the position where the decision made is not enforceable and cannot be appealed. While it is not within the remit of this Office to examine the appropriateness of the determination of the Rights Commissioner or of the Tribunal, I note that the EAT has already informed the applicant of the options that were available to her if she was dissatisfied with the Tribunal's decision or if she wished to seek enforcement of the recommendation made. For the reasons I have outlined above, I do not accept that the Tribunal's refusal to provide the statement of the applicant's terms and conditions of employment conferred on, or withheld from, the applicant a benefit.
In conclusion, therefore, I find that the applicant does not have a material interest in a matter affected by the act for which she sought a statement of reasons or in a matter to which the act relates, and I find that the EAT was not required to provide the applicant with the statement of reasons sought.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the EAT on the ground that the applicant is not entitled to a statement of reasons under section 10 for the relevant act to which her request refers as she does not have a material interest in a matter affected by the act or to which it relates.
Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.