O'Domhnaill v Health Service Executive

• Jurisdiction: Ireland
• Judge: Miss Justice Laffoy
• Judgment Date: 09 November 2011
• Neutral Citation: [2011] IEHC 421
• Court: High Court
• Date: 09 November 2011

O'Domhnaill v Health Service Executive (HSE)

BETWEEN

SEAN O'DOMHNAILL

PLAINTIFF

AND

HEALTH SERVICE EXECUTIVE

DEFENDANT

[2011] IEHC 421

[No. 2512P/2011]

THE HIGH COURT

EMPLOYMENT

Appointment

Temporary medical consultant - Permanent post advertised - Legitimate expectation - Construction of contract - Fixed term work - Whether plaintiff having legitimate expectation to permanent consultant position - Whether plaintiff's employment contract entitling him to permanent consultant position - Whether court having jurisdiction to grant relief pursuant to s 9 of Protection of Employees (Fixed-Term Work) Act 2003 - Parsons v Iarnrod Éireann [1997] 2 IR 523; Glencar Exploration plc v Mayo County Council (No 2) [2002] 1 IR 84; Analog Devices BV v Zurich Insurance Co [2005] IESC 12, [2005] 1 IR 274; Doherty v South Dublin County Council (No 2) [2007] IEHC 4, [2007] 2 IR 696; Nolan v Emo Oil Services Ltd [2009] IEHC 15 (Unrep, HC, Laffoy J, 21/1/2009) considered - Ahmed v Health Service Executive [2006] IEHC 245, [2007] 2 IR 106 distinguished - Protection of Employees (Fixed-Term Work) Act 2003 (No 29), ss 9 & 14 - Claim dismissed (2011/2512P - Laffoy J - 9/11/2011) [2011] IEHC 421

O'Domhnaill v Health Service Executive

PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT 2003 S9(2)

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

PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT 2003 S9(4)

EEC DIR 99/70

GLENCAR EXPLORATION PLC v MAYO COUNTY COUNCIL (NO.2) 2002 1 IR 84

ANALOG DEVICES BV v ZURICH INSURANCE CO 2005 1 IR 274

EMO OIL LTD v SUN ALLIANCE INSURANCE PLC UNREP KEARNS 22.1.2009 2009/20/4795 2009 IESC 2

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

PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT 2003 PART 2

PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT 2003 S6

PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT 2003 S8

PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT 2003 S10

PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT 2003 PART 3

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

DOHERTY v SOUTH DUBLIN COUNTY COUNCIL (NO.2) 2007 2 IR 696

LINGHAM v HEALTH SERVICE EXECUTIVE 2006 17 ELR 137 2005/36/7565 2005 IESC 89

MCGRATH v ATHLONE INSTITUTE OF TECHNOLOGY UNREP HOGAN 14.6.2011 2011 IEHC 254

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

PARSONS v IARNRÓD ÉIREANN 1997 2 IR 523

UNFAIR DISMISSALS ACT 1977 S15

UNFAIR DISMISSALS (AMDT) ACT 1993

AHMED v HEALTH SERVICE EXECUTIVE (HSE) 2007 2 IR 106

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

ORR v ZOMAX LTD 2004 1 IR 486

NOLAN v EMO OIL SERVICES LTD 2009 20 ELR 122 2010 1 ILRM 228 2009/42/10441 2009 IEHC 15

O'DONNELL v TIPPERARY (SOUTH RIDING) COUNTY COUNCIL 2005 2 IR 483

1. Factual background

2 2 1.1 When these proceedings were initiated the plaintiff had been employed by the defendant as a psychiatrist for almost six years. He had been employed in various positions on fixed-term contracts: as locum consultant psychiatrist; as temporary consultant (general adult) psychiatrist; and as specialist registrar. He held the positions at various locations: St. Loman's Hospital, Mullingar (St. Loman's Hospital); St. Vincent's Hospital, Fairview, Dublin; St. Luke's Hospital, Kilkenny; Our Lady's Hospital, Navan; and St. James's Hospital, Dublin (St. James's Hospital). When the proceedings were initiated, he was employed at St. Loman's Hospital under a contract which he had obtained in the circumstances which I will outline.

3 3 1.2 St. Loman's Hospital is located in the Dublin Mid-Leinster area of the defendant's operations. In early 2010 a post of consultant psychiatrist at St. Loman's Hospital was vacant due to the retirement of the former incumbent. The post was filled on a temporary basis, and had been for some time because the incumbent had been on secondment before he retired. In early March 2010, approval was sought from the relevant unit of the defendant for the appointment of a permanent consultant to replace the retired consultant. Prior to that, the temporary consultant psychiatrist had given notice on 25 ^th January, 2010 of his intention to depart from St. Loman's Hospital. Accordingly, an application was made for the appointment of a temporary consultant to replace the temporary consultant who was leaving. In early March 2010 approval was given for the appointment of a "Temporary Consultant General Adult Psychiatrist". It was made clear that it was to be a temporary appointment, approved on a "Type A" basis under the Consultants' Contract 2008 pending a decision on the application to fill the permanent post and pending the permanent filling of that post. It was stipulated that to qualify for the temporary position, an applicant was required to be registered as a specialist in the Specialist Division of the Register of Medical Practitioners maintained by the Medical Council of Ireland in the speciality of psychiatry. The plaintiff fulfilled that requirement.

4 4 1.3 Having been alerted to the advertisement of the temporary position on a website of the defendant by a former colleague at St. Loman's Hospital, the plaintiff applied for the position. He was one of a number of candidates for the position. The interviews were held on 26 ^th March, 2010. The interview panel comprised two consultant psychiatrists at St. Loman's Hospital, Dr. Mary O'Hanlon and Dr. Ciarán Corcoran and an administrator. The plaintiff was recommended by the interview panel to fill the position, as he had achieved the highest score at interview.

5 5 1.4 By letter dated 30 ^th March, 2010 the plaintiff was offered what was described as the post of "Locum Consultant Psychiatrist" with Longford/Westmeath Health Services based in St. Loman's Hospital. The letter stated that the post was "to provide locum Consultant cover in the Mullingar Sector pending the permanent filling of this post". Certain documentation was sought from the plaintiff, which was duly furnished. The reference to "locum" in that letter was not strictly speaking correct as the purpose of the appointment was not that the plaintiff would stand in temporarily for the holder of a position; the permanent position was vacant. However, I am of the view that the mistaken terminology does not bear on the outcome of these proceedings.

6 6 1.5 By letter dated 12 ^th April, 2010 the plaintiff was sent what was described as a "Specified Purpose Contract" as a temporary consultant psychiatrist for execution and he was told that the contract would be effective from 19 ^th April, 2010 "to provide temporary Consultant cover in the Mullingar Sector pending the permanent filling of this post". The plaintiff signed the contract on 19 ^th April, 2010 and it was also signed on behalf of the defendant. I will return to the terms of the contract (the 2010 Contract) later.

7 7 1.6 On 2 ^nd April, 2010 the relevant unit of the defendant issued approval for the appointment of a "Consultant General Adult Psychiatrist" on a "Type A basis" to be based at St. Loman's Hospital and to serve the Mullingar Sector in replacement of the former permanent incumbent who had retired. Recruitment was to be through the Public Appointment Service (PAS) process. Eventually, around mid-November 2010 the position was advertised on the PAS website.

8 8 1.7 By letter dated 15 ^th November, 2010 to the Local Health Manager of the defendant at Mullingar, the Irish Hospital Consultants' Association (IHCA), on behalf of the plaintiff, claimed that, in accordance with s. 9(2) and s. 9(3) of the Protection of Employees (Fixed-Term Work) Act 2003 (the Act of 2003), the plaintiff was employed on a contract of indefinite duration and sought confirmation of that fact. In support of that contention, it was stated in the letter that the plaintiff had held a total of thirteen contracts with the defendant since 2005 and there had been no lapse in his employment with the defendant since his commencement date. Subsequently, on 17 ^thDecember, 2010, by e-mail to Ms. Mary Gorry, Assistant National Director of Human Resources of the defendant with responsibility for the Dublin Mid-Leinster Area, attaching the letter of 15 ^th November, 2010, the IHCA sought confirmation that the recruitment process to fill the position in St. Loman's Hospital occupied by the plaintiff would not proceed any further and that the plaintiff would be confirmed in the position.

9 9 1.8 The first response to the correspondence from the IHCA was a letter of 25 ^th February, 2011 from the Local Health Manager to the plaintiff. The author, Mr. Joseph Ruane, stated that he had discussed the issue with Ms. Gorry and that it was the view that the plaintiff was "not in a position to be awarded a contract of indefinite duration". That response prompted the involvement of lawyers on behalf of the plaintiff. By letter dated 7 ^th March, 2011, the plaintiff's solicitors wrote to Mr. Ruane asserting that the plaintiff was entitled to continue in the post he occupied pursuant to his existing contract, which it was asserted "must be deemed to continue as a contract of indefinite duration". Confirmation of that was sought and an undertaking was sought that the defendant would immediately desist in taking any further steps to fill the advertised position. The response to that letter came from Ms. Gorry to the plaintiff's solicitors and it was dated 11 ^th March, 2011. The response was that the purpose of the plaintiff's employment as a temporary consultant psychiatrist was to provide cover in the Mullingar Sector pending the post being filled permanently, as was clearly stated in the plaintiff's contract of employment which he signed on 19 ^thApril, 2010. The letter stated that, while it was acknowledged that the plaintiff would have "4-years continuous service" with the defendant in April, 2011, the defendant relied on s. 9(4) of the Act...