Ahmed v Health Service Executive

JurisdictionIreland
JudgeMiss Justice Laffoy
Judgment Date06 July 2006
Neutral Citation[2006] IEHC 245
CourtHigh Court
Docket Number[2005 No. 3940 P]
Date06 July 2006

[2006] IEHC 245

THE HIGH COURT

No. 3940 P/2005
Ahmed v Health Service Executive
BETWEEN/
IBRAHIM AHMED
PLAINTIFF

AND

HEALTH SERVICE EXECUTIVE
DEFENDANT

EEC DIR 99/70

PROTECTION OF EMPLOYEES (FIXED TERM WORK) ACT 2003 S9

PROTECTION OF EMPLOYEES (FIXED TERM WORK) ACT 2003 S9(1)

PROTECTION OF EMPLOYEES (FIXED TERM WORK) ACT 2003 S9(3)

OXFORD ENGLISH DICTIONARY

PROTECTION OF EMPLOYEES (FIXED TERM WORK) ACT 2003 S14(1)

PROTECTION OF EMPLOYEES (FIXED TERM WORK) ACT 2003 S15

UNFAIR DISMISSALS ACT 1977 S15

O'DONNELL v TIPPERARY (SOUTH RIDING) CO COUNCIL 2005 2 ILRM 168 2005/47/9846 2005 IESC 18

MCGOLDRICK v BORD PLEANALA 1997 1 IR 497 1995/10/2825

PARSONS v IARNROD EIREANN 1997 2 IR 523 1997 ELR 203

UNFAIR DISMISSALS ACT 1977 S15(2)

PROTECTION OF EMPLOYEES (FIXED TERM WORK) ACT 2003 S14(2)

PROTECTION OF EMPLOYEES (FIXED TERM WORK) ACT 2003 S15(1)

PROTECTION OF EMPLOYEES (FIXED TERM WORK) ACT 2003 S18

PROTECTION OF EMPLOYEES (FIXED TERM WORK) ACT 2003 S13(1)

PROTECTION OF EMPLOYEES (FIXED TERM WORK) ACT 2003 S14

PROTECTION OF EMPLOYEES (FIXED TERM WORK) ACT 2003 S15(1)(B)

PROTECTION OF EMPLOYEES (FIXED TERM WORK) ACT 2003 S9(3)

LOCAL AUTHORITIES (OFFICERS & EMPLOYEES) ACT 1926

PUBLIC SERVICE MANAGEMENT (RECRUITMENT & APPOINTMENTS) ACT 2004

ADENELER v ELLINIKOS ORGANISMOS GALAKTOS (ELOG) 2007 AER (EC) 82 2006 ECR I-6057 2006 3 CMLR 30 2006 IRLR 716

PROTECTION OF EMPLOYEES (FIXED TERM WORK) ACT 2003 S17

SHEEHY v RYAN & MORIARTY 2004 15 ELR 87 2004/46/10610

REDUNDANCY PAYMENTS ACT 1967

PROTECTION OF EMPLOYEES (FIXED TERM WORK) ACT 2003 S13

SWEENEY v DUGGAN 1997 2 IR 531 1997 2 ILRM 211 1997/6/2236

COLLIER v SUNDAY REFEREE PUBLISHING CO LTD 1940 2 KB 647

EMPLOYMENT:

Fixed term contract

Contract of indefinite duration - Dispute relating to terms contained in such contract -Jurisdiction of court to entertain dispute when statutory redress procedure invoked -Appropriate remedy - Whether court enjoyed jurisdiction to rule on contractual entitlements when dispute under appeal to statutory body - Whether court obliged to consider which forum of redress more appropriate - Whether provisions of Protection of Employees (Fixed-Term Work) Act 2003 take effect irrespective of other legal duties of statutory body - Sweeney v Duggan [1997] 2 IR 531; O'Donnell v Tipperary (South Riding) County Council [2005] IESC 18, [2005] 2 IR 483; McGoldrick v An Bord Pleanála [1997] 1 IR 497 and Parsons v Iarnród Éireann [1997] 2 IR 523 distinguished - Protection of Employees (Fixed-Term Work) Act 2003 (No 29), s 9(1) and (3) - Unfair Dismissals Act 1977 (No 10), s 15 (1) and (2) - Council Directive 1999/70/EC - Plaintiff granted relief (2005/3940P - Laffoy J - 6/7/2006) [2006] IEHC 245

Ahmed v Health Service Executive

Facts section 9(1) of the Protection of Employees (Fixed Term Work) Act 2003 provides, inter alia, that "where on or after the passing of this Act a fixed term employee completes or has completed his...third year of continuous employment with his...employer, his...fixed term contract may be renewed by that employer but on only one occasion and any such renewal shall be for a fixed term of no longer than one year". Section 9(3) provides, inter alia, that "where any term of a fixed term contract purports to contravene subsection (1)...that term shall have no effect and the contract concerned shall be deemed to be a contract of indefinite duration". The plaintiff was a fixed term employee of the defendant when the Act of 2003 came into force. His contract had been extended up to the 1st August, 2004. There was a reorganisation of services within the defendant shortly thereafter. By operation of law, the plaintiff was employed on a contract of indefinite duration thereafter. The plaintiff then presented a complaint to the Rights Commissioner under section 14 of the Act of 2003 that the defendant had contravened the Act. The Rights Commissioner found the complaint well founded. Shortly thereafter the defendant made various proposals as to how the plaintiff was to be posted to certain positions around the area, which the plaintiff did not accept. He sought injunctions seeking to have him placed in the same position in Louth hospital as he had been employed under his contract of employment and/or damages. The defendant contended that as the plaintiff had previously referred a dispute to the Rights Commissioner under the Act of 2003, he was precluded from bringing plenary proceedings.

Held by Ms Justice Laffoy in holding that the defendant had been in breach of the plaintiff's contract of employment in failing to make an offer of an appropriate alternative appointment that the plaintiff, by presenting a claim to the Rights Commissioner under the Act of 2003, was not estopped from pursuing his common law rights. That the position of the plaintiff, who was seeking to enforce private law rights in plenary proceedings, was not analogous to that of an applicant who sought to pursue a public law remedy which was discretionary.

That the terms of the consultants' common contract applied by necessary implication to the plaintiff's employment insofar as those terms were consistent with a fixed term contract and that accordingly, his workplace could be changed in accordance therewith without his consent.

Reporter: P.C.

1

Judgment of Miss Justice Laffoy delivered on 6th July, 2006 .

The parties
2

The plaintiff has been a registered medical practitioner in this jurisdiction since 13th July, 1990. He became a fellow of the Royal College of Surgeons in Ireland in December, 1993. In July, 2000 he was appointed by the North Eastern Health Board as a locum consultant surgeon at Louth County Hospital, which is located in Dundalk, for a fixed term commencing on 14th August, 2000 and ending on 2nd October, 2000. He continued in the employment of the North Eastern Health Board on successive contracts of employments for fixed terms for in excess of three years. When the Protection of Employees (Fixed-Term Work) Act, 2003 (the Act of 2003) came into force, the plaintiff was a fixed-term employee of the North Eastern Health Board.

3

The defendant is a statutory corporation established by the Health Act, 2004. Since 1st January, 2005 the defendant has exercised the statutory functions formerly exercised by the North Eastern Health Board in the North Eastern Area, which, I understand, includes counties Louth, Meath, Monaghan and Cavan. In this judgment references to the defendant include the North Eastern Health Board in relation to events which occurred prior to 1st January, 2005.

4

It is the effect of the Act of 2003 on the plaintiff's employment with the defendant which is at the core of these proceedings.

The Act of 2003
5

The Act of 2003, which came into force on 14th July, 2003, gives effect in this jurisdiction to Council Directive 99/70/EC of 28th June, 1999 on the Framework Agreement on Fixed-Term Work (the Directive). The provision of the Act of 2003 which primarily determines the issues in these proceedings is s. 9. Sub-section (1) of s. 9 provides as follows:

"Subject to subsection (4), where on or after the passing of this Act a fixed-term employee completes or has completed his or her third year of continuous employment with his or her employer or associated employer, his or her fixed-term contract may be renewed by that employer on only one occasion and any such renewal shall be for a fixed term of no longer than one year."

6

Sub-section (3) deals with a purported contravention of sub-s. (1) and provides:

"Where any term of a fixed-term contract purports to contravene subsection (1) ... that term shall have no effect and the contract concerned shall be deemed to be a contract of indefinite duration."

7

It is common case that the plaintiff was a "fixed-term employee" of the defendant on 14th July, 2003 and had been since 14th August, 2000 and that one month after the coming into operation of the Act of 2003 he completed his third year of continuous employment with the defendant.

8

In order to determine the impact of s. 9 on the plaintiff's employment with the defendant, it is necessary to look at his contractual relationship with the defendant more closely.

The plaintiff's contractual relationship with the defendant
9

The plaintiff's initial appointment by the defendant was made by a brief letter from the acting hospital administrator of Louth County Hospital dated 26th July, 2000, in which the plaintiff was informed that it was proposed to appoint him —

"... to the post of Locum Consultant Surgeon at the Louth County Hospital, Dublin Road, Dundalk from 9.00 a.m. Monday 14th August, 2000 until 9.00 a.m. Monday 2nd October, 2000."

10

The first renewal of the plaintiff's contract was by letter dated 13th September, 2000 from the hospital administrator, which merely informed the plaintiff that his "temporary contract as a Locum Consultant Surgeon" had been extended for a further three-month period. Subsequent letters of renewal were similarly brief. After the Act of 2003 came into force, but before he had completed his third year of continuous employment with the defendant, the plaintiff was informed by letter dated 23rd July, 2003 that his contract had been extended for a further six months up to 2nd February, 2004. By letter dated 27th November, 2003, which recorded that the plaintiff's current contract would expire on 2nd February, 2004, the plaintiff was informed of a further extension of his contract to 30th June, 2004. By further letter dated 23rd January, 2004, which incorrectly stated that the plaintiff's contract would expire on 2nd February, 2004, the plaintiff was informed that his contract was extended to 1st August, 2004. There is consensus between the parties that it is at this point that s. 9(3) of...

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