Castleisland Cattle Breeding v Minister for Social Welfare

JurisdictionIreland
CourtSupreme Court
Judgment Date15 July 2004
Neutral Citation[2004] IESC 40
Docket Number[S.C. Nos. 408 & 418 of 2003]
Date15 July 2004
CASTLEISLAND CATTLE BREEDING SOCIETY LTD v. MINISTER FOR SOCIAL & FAMILY AFFAIRS
BETWEEN/
CASTLEISLAND CATTLE BREEDING SOCIETY LIMITED
Plaintiff/Respondent

and

MINISTER FOR SOCIAL AND FAMILY AFFAIRS
Defendant/Appellant

[2004] IESC 40

Denham J.

Murray J.

McGuinness J.

Hardiman J.

Geoghegan J.

408 & 418/03

THE SUPREME COURT

Abstract:

Employment - Contract of service or contract for services - Appeal from decision of appeals officer - Procedural confusion - Social Welfare (Consolidation) Act 1993, s. 271

Facts: There was a difference between one Michael Walsh and the plaintiff, his employer, as to whether his contract was a contract of service or a contract for services. A deciding officer in the Department of Social and Family Affairs determined Mr. Walsh was employed under a contract for services. Mr. Walsh appealed that decision to an appeals officer and the decision was overturned. The plaintiff requested the chief appeals officer to review the decision but he simply indicated that he could find nothing erroneous in the decision. The plaintiff appealed under s. 217 of the Social Welfare (Consolidation) Act 1993 requesting, inter alia, an order that Mr. Walsh was an independent contractor.

Held by the Supreme Court (Denham, Murrary, McGuinness, Hardiman and Geoghegan JJ) in dismissing the appeal and affirming the High Court order with variations, inter alia, that the order should expressly state that the decision of the appeals office be set aside and the decision of the deciding officer restored that the case that Mr. Walsh was an independent contractor was so overwhelming that it was not open to the appeals officer to arrive at the conclusion which she made.

Reporter: R.W.

Citations:

SOCIAL WELFARE (CONSOLIDATION) ACT 1993 S263

SOCIAL WELFARE (CONSOLIDATION) ACT 1993 S271

HENRY DENNY & SONS (IRL) LTD V MIN FOR SOCIAL WELFARE 1998 1 IR 34

MARA V HUMMINGBIRD LTD 1982 ILRM 421

1

15th day of July 2004

2

This appeal has its origins in a classic type of dispute between one Michael Walsh, a cattle inseminator, and the plaintiff/respondent ( "Castleisland") his employer, as to whether his contract was a contract of service or a contract for services or in other words as to whether he was a "servant" of the respondent or on independent contractor providing services to it. A deciding officer in the Department of Social and Family Affairs determined that Mr. Walsh was employed under a contract for services. Mr. Walsh appealed that decision to an appeals officer under the provisions of the Social Welfare (Consolidation) Act, 1993and the decision was overturned. The appeals officer had conducted an oral hearing in Tralee, Co. Kerry. Under the provisions of s. 263 of that Act "the Chief Appeals Officer" may, at any time, revise any decision of an appeals officer, if it appears to him that the decision was erroneous by reason of some mistake having been made in relation to the law or the facts. I would comment in passing that s. 263 does not appear by its terms to be conferring a double appeal. What seems to be envisaged is that the Chief Appeals Officer may go through the materials which were before the appeals officer and check whether there was any error in law or on the facts. If he were to find that the appeals officer did not have enough facts or the facts which were before him or her were ambiguous there may be circumstances in which the Chief Appeals Officer would require additional evidence, but essentially it is a revising rather than an appellate procedure.

3

In the light of the view which I have taken in this case nothing much turns on that distinction. The respondent did request the Chief Appeals Officer in this case to revise the decision of the appeals officer. In a letter of 6 th July, 2001 the Chief Appeals Officer simply indicated that he had found nothing erroneous in law or on the facts in the decision of the appeals officer, a finding expanded though only in a very general way in an enclosed memorandum.

4

There was still a remedy available to the respondent namely, an appeal on a question of law to the High Court. The respondent seems to have considered that it was entitled to bring two such appeals having regard to the wording of s. 271 of the 1993 Act. That section reads as follows:

"271. — Any person who is dissatisfied with—"

(a) the decision of an appeals officer, or

(b) the revised decision of the Chief Appeals Officer,

5

on any question, other than a question to which section 265 applies, may appeal that decision or revised decision, as the case may be, to the High Court on any question of law."

6

I will return to the procedural history of the case, but I think it appropriate to refer first to the evidence at the oral hearing before the appeals officer.

7

That evidence is to be found in a written report of the oral hearing which took place in Tralee on the 28 th September, 2000. The oral hearing related to seven appellants in a similar position under the same employer and they included Mr. Michael Walsh. It was explained at the outset by counsel for one of the other appellants that all of these AI men, as they were called, had been under a previous contract of service with Castleisland and were offered redundancy in late 1989. It emerged from the oral hearing that there were two kinds of redundancy packages offered. Those AI men in the employment of Castleisland who did not want to apply to work in the future for the company on an independent contractor basis were to be paid six times the statutory redundancy payment. The others were to be paid twice the statutory redundancy payment but were to be allocated an area for carrying out the Al tests on a contract basis. The arrangement was that the balance of the ordinary redundancy payment package was to be treated as the purchase price for the allocated area. Of the forty-eight artificial inseminators employed by Castleisland under an ordinary contract of service prior to this new contractual arrangement most opted to enter into the new type of contract but sixteen of them broke off their connection with Castleisland altogether and took the full redundancy package. At the same time an advertisement was inserted in the newspaper for applicants for these areas and one of the appellants at the Tralee hearing had not been a former employee of Castleisland but was allocated an area in the ordinary way on foot of answering the advertisement. Apparently, he did not make a payment for the area and this was a point to which the appeals officer attached some importance in arriving at the decision which she made.

8

The somewhat strange procedural history of the appeals to the High Court was as follows. A Special summons was issued on behalf of the respondents on the 3 rd August, 2001 incorporating two alternative appeals under s. 271 of the 1993 Act. The special endorsement of claim first sets out in some detail grounds of appeal from the decision of the appeals officer in respect of Michael Walsh. At paragraph 4 there is then set out an alternative appeal from the decision of the Chief Appeals Officer and grounds of appeal against that decision are set out. In the nature of things and having regard to the wording of the Act the two respective decisions appealed against were different. The decision of the appeals officer being appealed against was in the following terms:

"Michael Walsh during the period from 1 st March, 1990 to date, was employed by Castleisland Cattle Breeding Society Limited/Kerry Group in employment which is insurable for all benefits under the Social Welfare Acts at the standard class A rate of contribution subject to the weekly earnings requirement but for occupational injury benefits only under the Social Welfare Acts at the class J rate of contribution in any week where earnings are below the prescribed amount."

9

And the decision was expressed to be on the grounds that

"on examination of the evidence before me I consider that the relationship between Kerry Group and the appellant is that of master / servant and that a contract of service exists between them."

10

The decision of the Chief Appeals Officer appealed against was that the decision of the appeals officer was not erroneous by reason of some mistake having been made in relation to the law or the facts as to warrant a revision of that decision.

11

For some reason or other which is not easy to fathom the clarity of the case made in the special summons, that is to say, that there were two alternative appeals of a different nature became blurred to the extent that the learned trial judge in the High Court (O'Donovan J.) in his comprehensive judgment seems to have treated the entire appeal as an appeal against the decision of the Chief Appeals Officer only though, in the course of that exercise, he expressed views which in reality would have determined the other appeal also if he had addressed himself to it. The learned High Court judge mentions in his judgment that it was conceded on behalf of the respondent on this appeal that when determining an appeal pursuant to s. 271 Social Welfare (Consolidation) Act, 1993:

"The court is only concerned with questions of law arising from the refusal of a Chief Appeals Officer to revise a decision of an appeals officer and, accordingly, when determining this appeal, the court is not concerned with the reality of the relationship between the appellant and Mr. Walsh but rather with whether or not as a matter of law the Chief Appeals Officer was correct when he determined that the decision of the appeals officer was not erroneous by reason of some mistake having been made in relation to the law or the facts so as to require revision."

12

The judge went on to observe that in his view it was entirely appropriate that that concession should have been made because he was satisfied that when...

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