Statutory Unfair Dismissal Appeals: Circuit Court Jurisdiction Cannot Be Defeated by a Late “No Dismissal” Case, and Costs May Follow a Discrete Preliminary Issue

1) Introduction

Nowak v Intesa San Paolo Vita S.P.A (Approved) [2026] IEHC 382 is a High Court appeal from two Circuit Court decisions arising in an unfair dismissals appeal chain. The employee (the plaintiff/appellant, appearing in person) had brought a statutory unfair dismissal claim to the Employment Appeals Tribunal (“EAT”) arising from the termination letter dated 20 August 2015. After the EAT ultimately rejected her unfair dismissal claim, she appealed to the Circuit Court.

Before the Circuit Court, the employee raised a preliminary issue contending (in substance) that the Circuit Court lacked jurisdiction because the termination was legally ineffective (principally because the letter was signed by the company’s CFO, who was not said to be a director). The Circuit Court rejected that jurisdiction objection and ordered costs against the employee on the preliminary point. The employee appealed both rulings to the High Court.

The High Court (Barry O’Donnell J.) dismissed both appeals, holding that: (i) the Circuit Court’s appellate jurisdiction under the Unfair Dismissals statutory code was plainly engaged, and could not be undermined by the employee “approbating and reprobating” the statutory process; and (ii) the company was entitled to costs of the preliminary jurisdiction application, albeit with a stay on the Circuit Court costs order pending determination of the still-live Circuit Court appeal.

2) Summary of the Judgment

  1. Circuit Court jurisdiction confirmed: The Circuit Court has jurisdiction under s. 11(1) of the Unfair Dismissals (Amendment) Act 1993 to hear an appeal from an EAT determination in relation to a claim for redress under the Unfair Dismissals Acts. That jurisdiction was engaged once the employee invoked the statutory regime and then filed her appeal.
  2. Late “no dismissal” contention rejected: Having pursued a statutory unfair dismissal claim premised on her dismissal, the employee could not later contend (for jurisdictional purposes) that she had not been dismissed; she could not “approbate and reprobate” the statutory process. If she truly maintained there was no dismissal, she had the option to withdraw her statutory claim.
  3. Effective termination upheld (agency/ratification): The EAT’s conclusion that employment was effectively terminated was correct on straightforward agency principles: the CFO had express or implied authority, and in any event the CEO’s subsequent upholding of the termination placed the matter “beyond reasonable argument” by ratification.
  4. Costs on preliminary issue upheld; stay granted: Under ss. 168–169 of the Legal Services Regulation Act 2015, the company—successful on the discrete preliminary jurisdiction application—was entitled to its costs of that event. The High Court rejected the argument that costs must await the ultimate outcome of the substantive Circuit Court appeal. However, it stayed the Circuit Court costs order pending the determination of the extant Circuit Court proceedings.

3) Analysis

A) Statutory Framework and the “Self-Contained Code” Point

The judgment treats the Unfair Dismissals legislation as a “self-contained statutory code” which both creates the cause of action and specifies the route for adjudication and appeal. Key provisions referenced were:

  • Unfair Dismissals Act 1977, including s. 8 (bringing a claim to the rights commissioner/Tribunal) and the availability of statutory redress.
  • Unfair Dismissals (Amendment) Act 1993, s. 11(1): a party may appeal to the Circuit Court from an EAT determination within 6 weeks.
  • Unfair Dismissals Act 1977, s. 15 (as relied upon in submissions): the requirement to elect between statutory and common-law routes (no double recovery).

The High Court’s core jurisdictional holding is intentionally “net”: once an employee chooses the statutory unfair dismissal regime and receives a Tribunal determination, the Circuit Court’s appellate jurisdiction is the mechanism provided by the same code. It does not depend on a further threshold “permission” inquiry into whether there was a dismissal, still less on accepting a late-breaking contention that there was none.

B) The New Emphasis: You Cannot Invoke Statutory Unfair Dismissal and Then Deny Dismissal to Defeat Jurisdiction

The judgment’s most practically significant contribution is its insistence that an employee cannot use a “no effective dismissal” argument to attack the jurisdiction of the very statutory bodies she invoked to determine a statutory unfair dismissal claim. The Court characterises this as impermissible “approbation and reprobation”.

This is not merely procedural rhetoric. It reflects a functional view of the statutory scheme:

  • A statutory unfair dismissal claim is, by definition, an assertion of dismissal coupled with an assertion of unfairness (and a pursuit of statutory redress).
  • Where the employee maintained throughout the earlier years that she had been dismissed (and sought re-engagement as a remedy), it was “entirely illogical” to reverse that position later as a jurisdictional bar.
  • The proper route—if genuinely disputing that any termination occurred—was to withdraw the statutory unfair dismissal claim and pursue whatever other remedies might exist.

The Court also distinguishes (implicitly but clearly) between: (i) whether a dismissal occurred at all (a basic factual/legal predicate), and (ii) whether a dismissal was unfair (the merits). The former could not be deployed to extinguish jurisdiction after the statutory route had already been elected and pursued to a Tribunal determination and statutory appeal.

C) Agency Law and Ratification: Authority to Terminate

Although the High Court emphasised that fairness/merits were for the Circuit Court, it addressed the “ineffective termination” point to the extent necessary. It endorsed the EAT’s reasoning that:

  • the CFO had express or implied authority to terminate, or at minimum the company “held him out” as authorised (an ostensible authority analysis); and
  • even if authority were disputed, the CEO’s upholding of the decision amounted to ratification, curing any alleged want of authority and making the termination effective as an act of the company.

The High Court described this as “very straightforward and well-established principles of agency law”, and considered the CEO’s ratification to put the matter “beyond reasonable argument”.

D) Precedents Cited and How They Shaped the Decision

1) Nowak v. Intesa San Paolo Vita S.p.A. [2024] IEHC 262

Barry O’Donnell J. situates this appeal in the procedural history described by Simons J. in Nowak v. Intesa San Paolo Vita S.p.A. [2024] IEHC 262, including prior Circuit Court errors and a successful appeal by the employee against a strike-out as frivolous/vexatious. While not determinative of the present issues, that history contextualised why the matter reached a late-stage jurisdiction skirmish and why the High Court confined itself to the two discrete questions now on appeal.

2) Chubb European Group SE v. Health Insurance Authority [2022] 2 I.R. 734

Chubb is central to the costs reasoning. The company relied on Murray J.’s synthesis of how ss. 168–169 of the Legal Services Regulation Act 2015 preserve judicial discretion but embed a strong “costs follow the event” starting point, including:

  • an entitlement to costs for a party “entirely successful” unless the court orders otherwise; and
  • the statutory list of considerations (nature/circumstances; conduct; reasonableness in raising issues; settlement offers; etc.).

The High Court applied these principles to treat the preliminary jurisdiction motion as a discrete “event” on which the company was successful.

3) Higgins v. Irish Aviation Authority [2020] IECA 277

Higgins was deployed (again via Murray J.) to structure the questions a court should ask in allocating costs under ss. 168–169: whether a party is entirely successful, whether there is reason to depart from the default position, and what to do where a party is partially successful.

This framework supports the High Court’s rejection of the employee’s “no piecemeal costs” argument: the statute permits costs orders “at any stage in, and from time to time during” proceedings (s. 168(1)), and success on a discrete preliminary issue may justify an immediate costs order.

4) Náisiúnta Leictreach Contraitheoir Éireann v. The Labour Court [2020] IEHC 342

The judgment references Murray J.’s reliance on Simons J.’s discussion in Náisiúnta Leictreach Contraitheoir Éireann v. The Labour Court [2020] IEHC 342 about how to evaluate “success”: by relief obtained, by issue-by-issue outcomes, or by argument-by-argument wins. This supports viewing the jurisdiction motion as an “issue” on which the company prevailed, justifying the costs order.

E) Costs: Discrete Preliminary Applications and the Stay Mechanism

The employee argued that costs should await final resolution of the substantive unfair dismissal appeal, and complained of unfairness to litigants in person. The High Court rejected the legal premise: a preliminary motion is a distinct application, and an unsuccessful moving party cannot avoid costs simply because the substantive proceedings continue.

However, the Court balanced this by ordering a stay on the Circuit Court costs order pending the determination of the extant Circuit Court appeal. This approach recognises the legitimacy of awarding costs for the “event” while also tempering immediate enforcement where the broader dispute remains live.

F) Impact

  • Jurisdiction challenges in unfair dismissal appeals: The judgment discourages tactical or late-stage attempts to defeat statutory jurisdiction by contradicting the foundational premise (dismissal) of a claim the employee elected to pursue. It reinforces procedural coherence in the Unfair Dismissals code.
  • Authority to dismiss: Employers can expect Irish courts to treat termination letters signed by senior executives as effective where authority is express, implied, or subsequently ratified—reducing the viability of purely formal “ultra vires signatory” arguments in employment termination disputes (without prejudice to fairness issues).
  • Costs on preliminary issues: Litigants should expect that unsuccessful preliminary motions (even in ongoing proceedings) may attract immediate costs consequences under ss. 168–169, though stays may be used to manage hardship or sequencing concerns.

4) Complex Concepts Simplified

“Self-contained statutory code”
A legal scheme where the statute not only creates the right (here, statutory unfair dismissal) but also provides the exclusive process, forum, and appeal route. If you use that scheme, you generally cannot later try to re-write its gateway conditions to defeat the scheme’s own jurisdiction.
“Approbate and reprobate”
A party cannot accept the benefit of a position or procedure while simultaneously rejecting its foundation. Here: pursuing statutory unfair dismissal (which assumes dismissal) and later arguing “there was no dismissal” to defeat jurisdiction.
Implied / ostensible authority
Even if a company officer’s authority is not proved by a formal document, authority may be inferred from role and conduct (implied), or arise where the company represents that the officer has authority and others reasonably rely on it (ostensible).
Ratification
If an act was done without authority, the company can later adopt/confirm it through an authorised decision-maker, making the act effective as if authorised from the start.
“Costs follow the event” under ss. 168–169 (Legal Services Regulation Act 2015)
The default is that the successful party gets its costs, unless the court decides otherwise after considering statutory factors. Courts can award costs at stages during proceedings, including for discrete preliminary applications.

5) Conclusion

[2026] IEHC 382 confirms that the Circuit Court’s jurisdiction to hear appeals from EAT determinations under s. 11 of the Unfair Dismissals (Amendment) Act 1993 is straightforward once a claimant has invoked the statutory unfair dismissal regime and filed an appeal. The High Court’s key practical message is that a claimant cannot run a late “no dismissal” case to defeat jurisdiction after litigating on the premise of dismissal; the statutory process cannot be both invoked and repudiated.

The judgment also reinforces orthodox agency principles in the employment context: termination by a senior officer will be effective where authority is implied/ostensible or later ratified by the company. On costs, it applies the post-2015 statutory framework to uphold costs on a discrete preliminary issue, while using a stay to manage timing and fairness pending conclusion of the underlying Circuit Court appeal.