Bennett v Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr Justice Max Barrett
• Judgment Date: 05 May 2017
• Neutral Citation: [2017] IEHC 261
• Court: High Court
• Docket Number: 2017 No. 279 JR
• Date: 05 May 2017

[2017] IEHC 261

THE HIGH COURT

Barrett J.

2017 No. 279 JR

BETWEEN

OLGA BENNETT

AND

MAIREAD MARRON

Applicants

– and –

THE MINISTER FOR JUSTICE AND EQUALITY

Respondent

Employment – S. 2 of the Censorship of Films (Amendment) Act 1992 – Open-ended contract – Termination of position of Assistant Classifiers – Injunction – Mandatory injunction – Strong case

Facts: The applicants had commenced judicial review proceedings against the respondent asking for certain declaratory reliefs. In the within application, the applicants sought an injunction for restraining the respondent from the termination of their respective offices as Assistant Classifiers pending the determination of their judicial review application. The applicants claimed that they were employees and not self-employed persons as they were entitled to receive remuneration under the PAYE system and thus, their removal from the respective positions must be for an identified reason. The respondent claimed that the applicants had been asking for mandatory interlocutory injunction in essence and thus, they should have passed the test laid down in Maha Lingham v HSE [2005] IESC 89 for getting the injunctive reliefs.

Mr. Justice Max Barrett refused to grant the injunction to the applicants. The Court held that since the applicants had been contending that they were the employees, they should have established a strong case in order to get the desired relief, which they failed to do. The Court opined that since the substantive proceedings were the judicial review proceedings, the applicants needed to cross the minimum threshold by showing that their case was arguable. The Court held that there was no allegation of misconduct against the respondent and there was no fault in the alleged decision to terminate the position of the Assistant Classifiers. The Court found that the respondent gave appropriate reasons for the alleged decision to terminate the said position and there was no flaw in that procedure that would warrant the grant of injunction.

JUDGMENT of Mr Justice Max Barrett delivered on 5th May, 2017.

I: Background

1 Back in the 1990s, the applicants were each appointed, pursuant to s.2 of the Censorship of Films (Amendment) Act 1992 and on open-ended contracts that included a provision for dismissal on one month's notice, to the office of Assistant Censor to the Official Censor of Films. (The office of Assistant Censor to the Official Censor of Films has since been transformed by s.71 of the Civil Law (Miscellaneous Provisions) Act 2008 into the office of Assistant Classifier to the Director of Film Classification at the Irish Film Classification Office (the “IFCO”)). From the date of their appointment to April, 2016, it appears that the applicants were treated as self-employed persons, though the applicants contend that when one has due regard to their material terms and conditions, they have never been, in truth, bona fide self-employed persons engaged in business on their own account; this, they maintain, was at all material times obvious to the Minister. In this last respect, the applicants point to the fact that they were notified by the Minister in January, 2016 that from sometime thereafter they would receive ‘ remuneration payments…under the PAYE system’. The first such deductions occurred on 12th April, 2016. The applicants maintain that the fact that they have since the said date been paid ‘ under the PAYE system’ puts beyond doubt the issue that they are employees and not self-employed persons.

2 By letter of 17th August, 2016, the Minister informed the applicants that the contracts of all Assistant Classifiers would cease as of 31st March, 2017. That letter indicated that this was part of a plan whereby the Minister would establish, via the Public Appointments Service, a panel of suitably qualified persons for the position of Assistant Classifier. The letter further indicated that when this scheme of action was first settled upon by the Minister in October, 2014, it was not proposed that either of the two applicants would be required to submit expressions of interest to be considered for the panel. But, the letter continued:

‘[T]he legal position of Assistant Clarifiers has now been clarified. The Department has been advised that all Assistant Clarifiers should be treated in a similar manner in this matter, regardless of their type of contract[1]….Accordingly, I must advise you that should you wish to be considered for inclusion on the new panel, you will have to submit an expression of interest….I would like to take this opportunity to thank you for your many years of service….Your dedication and contribution…have been greatly valued.’

[1] Much was made at the hearing of the within application by counsel for the applicants of the averment of a civil servant at the Department of Justice in certain affidavit evidence, when amplifying upon the position adopted by the Minister, that the reason for the termination ‘ is not that they [the applicants] be treated the same as fixed-term contract holders, rather that all Assistant Classifiers be treated in the same manner’. Counsel protested that having read the text a number of times he still was at a loss to know what distinction it was sought to draw. It seems to the court that the civil servant in question is merely averring that the Minister has never taken the position that Assistant Classifiers on open-ended contracts should be treated the same as Assistant Classifiers on fixed-term contracts; rather her approach has been that all Assistant Classifiers should be on the same form of contract. In the result, the same end is achieved in that all Assistant Classifiers will now be on fixed-term contracts; however, that does not render nugatory or senseless the distinction that the relevant civil servant avers to in this regard.

3 Not surprisingly perhaps, the applicants did not feel greatly valued after reading the letter of 17th August and consulted with a solicitor. By letter of 30th November, 2016, their solicitor raised various concerns with the Minister as to the legality of how she was proceeding. This letter met with the response, albeit somewhat belatedly, on 3rd March, 2017, that, inter alia, (1) the Minister was not considered to have acted unlawfully, (2) the applicable contracts for service expressly stated themselves to be terminable on one month's notice, and (3) pursuant to the decision of the Employment Appeals Tribunal in Keith v. Department of Justice and Equality UD163/2014, an Assistant Classifier was an “office holder” (which would have the effect that the employees did not enjoy the Protection of Employees (Fixed Term Work) Act 2003).

4 In the period between the two letters, the applicants participated in the process of applying to be appointed to to-be-established panel. Despite having 23 and 21 years' experience respectively, they were unsuccessful at interview and received a letter advising them of this on 13th March last. However, by what the applicants maintain is more than chance coincidence (though the Minister denies any wrongdoing), the two (of the three) Assistant Classifiers who, previous to being dismissed, had been on fixed-term contracts, were successful at interview. This had the result that all Assistant Classifiers were now on fixed-term contracts and no Assistant Classifiers were on open-ended contracts.

II: An Aside on Equity

5 There was some dispute at the hearing as to whether the assertions made by the applicants as to the integrity of the dismissal and interview process had the result that when they come to court, as they now do, seeking (equitable) injunctive relief, they fall to be treated as persons in breach of the equitable maxims that “he who seeks equity must do equity” and “he who comes to equity must come with clean hands”.

6 As to the former maxim (“he who seeks equity must do equity”), there is no breach of same at this time. As Professor Biehler notes in Equity and the Law of Trusts in Ireland (6th ed.), 19, ‘[T] he maxim that “he who seeks equity must do equity” is concerned with…likely future conduct’. The only relevance of that maxim in the context of the within application is the usual (though not invariable) requirement as to an undertaking in damages, if injunctive relief issues, and the applicants (not uncourageously) have each indicated their respective willingness to give such an undertaking.

7 As to the latter maxim, (“he who comes to equity must come with clean hands”), it has been clear since at least the time of the decision of the Supreme Court in Curust Financial Services Ltd. v. Loewe-Lack-Werk Otto Loewe GmbH & Co KG [1993] ILRM 723 that “clean hands” need not be spotless hands; to borrow from the phraseology of the judgment of Finlay C.J. in Curust, at 731, ‘ this phrase must of necessity involve an element of turpitude’. The Oxford Online Dictionary defines ‘ turpitude’ as meaning ‘ depraved or wicked behaviour or character’ and there is nothing in the aspersions made by the applicants as regards the process whereby they were dismissed and have not been re-engaged that could be described as “depraved or wicked behaviour”, albeit that those aspersions could perhaps be criticised as resting on supposition, rather than demonstrable facts. But even allowing for the just-mentioned possible criticism, the court's impression of the argument made for the Minister in this regard is that it is, with every respect, somewhat over-stated. It is difficult to see how the applicants could bring the case they are seeking to bring without alleging that they have been the victims of what might colloquially be described as a “stitch-up” and, in essence, they have done no more than that. If in making this case the applicants or their representatives have sometimes deployed somewhat (though not especially) emotive wording, that is unsurprising in a...