Health Service Executive (HSE) Dublin North East v Umar

• Jurisdiction: Ireland
• Judge: Mr. Justice Hedigan
• Judgment Date: 07 April 2011
• Neutral Citation: [2011] IEHC 146
• Court: High Court
• Date: 07 April 2011

[2011] IEHC 146

THE HIGH COURT

[133MCA/2010]

Health Service Executive (HSE) Dublin North East v Umar

[2011] IEHC 146

IN THE MATTER OF AN APPEAL PURSUANT TO SECTION 15(6) OF PROTECTION OF EMPLOYEES (FIXED TERM WORK) ACT 2003

BETWEEN

HEALTH SERVICE EXECUTIVE DUBLIN NORTH EAST

APPELLANT

V.

ALI UMAR

RESPONDENT

RSC O. 84C

PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT 2003 S15(6)

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

PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT 2003 S7

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)

PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT 2003 S7(1)

CASTLEISLAND CATTLE BREEDING SOCIETY LTD v MIN FOR SOCIAL & FAMILY AFFAIRS 2004 4 IR 150 2004/7/1444 2004 IESC 40

NATIONAL UNIVERSITY OF IRELAND CORK v AHERN & ORS 2005 2 IR 577 2005/44/9152 2005 IESC 40

LOCAL AUTHORITIES (OFFICERS AND EMPLOYEES) ACT 1926

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

INOUE v NBK DESIGNS LTD 2003 14 ELR 98

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

HEALTH SERVICE EXECUTIVE NORTH EASTERN AREA v KHAN 2006 17 ELR 313

PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT 2003 S8(1)

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

RUSSELL v MOUNT TEMPLE COMPREHENSIVE SCHOOL UNREP HANNA 4.12.2009 2009/50/12659 2009 IEHC 533

HENRY DENNY & SONS (IRL) LTD T/A KERRY FOODS v MIN FOR SOCIAL WELFARE 1998 1 IR 34 2000/5/1750

LOMMERS v MINISTER VAN LANDBOUW NATUURBEHEER EN VISSERIJ 2002 ECR I-2891 2004 2 CMLR 49 2002 IRLR 430

AHMED v HEALTH SERVICE EXECUTIVE 2007 2 IR 106 2008 19 ELR 117 2006/2/334 2006 IEHC 245

PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT 2003 S17

EEC DIR 1999/70 ANNEX PREAMBLE PARA 2

MULCAHY v MIN FOR MARINE UNREP KEANE 4.11.1994 1995/4/1198

INTERPRETATION ACT 2005 S5(1)

EMPLOYMENT LAW

Labour court

Fixed term employee - Contract of indefinite duration - Appeal on point of law - Hospital consultant - Public appointments service - Series of fixed term contracts for continuous period of four years - Employment terminated - Specified purpose contract - Contract to expire on permanent filling of vacancy - Whether contract became contract of indefinite duration by operation of law - Whether objective grounds for extension of fixed-term contract - Purpose of Act - Test for objective grounds - Statutory duty to inform employee of objective grounds - Whether appellant complied with duty - Whether desire for best available candidate constituted objective ground - Material time - Proportionality of means - Failure to comply with s 8 of Act of 2003 - Whether appellant circumvented terms of statute - Whether reason for renewing fixed-term contract connected to activity of employee - Purposive approach - Whether ambiguity in statute - Whether attempt to amend statute - Castleisland Cattle Breeding Society v Minister for Social Welfare [2004] IESC 40 [2004] 4 IR 150, National Univeristy of Ireland Cork v Aherne [2005] IESC 40 [2005] 2 IR 577, Henry Denny and Sons (Ireland) Limited v Minister for Social Welfare [1998] 1 IR 34 applied - Inoue v MBK Designs [2003] 14 ELR 98, Health Service Executive, North Eastern Area v Khan [2006] 17 ELR 313 and Lommers v Minister Van Landbouw, Natuurbeheer en Visserij [2002] ECR I-2829 considered; Russell v Mount Temple Comprehensive School [2009] IEHC 533 (Unrep, Hanna J, 4/12/2009); [2002] IRLR 430, Ahmed v HSE [2006] IEHC 245 [2007] 2 IR 106, Adeneler v Ellinikos Organismos Galaktos (Case C212/04)[2006] IRLR 716 and Mulcahy v Minister for the Marine (Unrep, Keane J, 4/11/1994) followed - Local Authorities (Officers and Employees) Act 1926 (No 39) - Protection of Employees (Fixed Term Work) Act 2003 (No 29), ss 8 and 9 - Interpretation Act 2005 (No 23), s 5 - Council Directive 1999/70/EC - Appeal upheld (2010/133MCA - Hedigan J - 7/4/2011) [2011] IEHC 146

Health Service Executive Dublin North East v Umar

Facts: The appellant sought to appeal on a point of law against a determination of the Labour Court of 2010, finding that the respondent doctor was entitled to a contract of indefinite duration pursuant to s. 15 of the Protection of Employees (Fixed Term Work) Act 2003. The appellant alleged inter alia that the Labour Court had erred in law in its interpretation of the Act of 2003. The respondent had applied for a temporary vacancy initially successfully and had later applied for a permanent post unsuccessfully. He successfully challenged the decision to terminate his employment thereafter. The respondent alleged he had four years of continuous fixed- term employment since 2008 and that the contract had become one of indefinite duration. The Labour Court had employed a purposive approach to the determination of the provisions of the Act of 2003.

Held by Hedigan J. that there was no obscurity or ambiguity in the provision. It was not therefore permissible to import into the statue something not there by way of a purposive approach. The Labour Court fell into error when it found that the late Dr. Umar's contract had become by operation of law a contract of indefinite duration. The respondent was not entitled to a contract of indefinite duration. There would be an order setting aside the Labour Court's determination to the effect that the appellant breached s. 9 of the Act of 2003 and that the appellant was entitled to a contract of indefinite duration.

Reporter: E.F.

1 Judgment of Mr. Justice Hedigan delivered the 7th day of April 2011.

2 1. The appellant is the Health Service Executive, Dublin North East and has its place of business at Dr Steeven's Hospital, Dublin 8. The respondent was a consultant who resided at 2 the Walls, Drumgala Wood, County Cavan. The respondent is now deceased; his wife replaces him in this action as personal representative of his estate.

3 2. The appellant seeks to appeal on a point of law against the determination of the Labour Court of 20 ^th April, 2010. The appellant seeks the following relief's:-

4 (i) An Order pursuant to the provisions of Order 84(c) of the Rules of the Superior Courts and pursuant to Section 15(6) of the Protection of Employees (Fixed - Term Work) Act 2003 ["the Act"] directing that the part of the aforesaid determination which held that the appellant breached Section 9 of the Act and that the respondent was thereby entitled to a contract of indefinite duration be set aside;

5 (ii) An order for the costs of the Appeal; and

6 (iii) Such further, or other, Order as to this Honourable Court shall seem fit.

7 The grounds upon which the appellant brings this appeal are as follows:

8 (i) That the Labour Court erred in law in its interpretation and application of section 7 of the Act.

9 (ii) That the Labour Court erred in law in its interpretation and application of section 9 of the Act and in particular sub-sections 2, 3 and 4 thereof.

10 (iii) That the Labour Court erred in law in particular in its interpretation of the true meaning and effect of the words "treatment… appropriate and necessary for that purpose" as contained in section 7(1) of the Act.

11 (iv) That the Labour Court erred in law in failing properly or at all to determine, as was required by the terms of section 7(1) of the Act, whether the treatment concerned was appropriate and necessary for the purpose involved, namely, the achievement of the legitimate objective.

12 (v) That the Labour Court erred in law in finding that the appellant had failed to discharge the burden of showing that there were objective grounds for not granting the respondent a contract of indefinite duration.

13 (vi) That the Labour Court erred in law in finding that the respondent became entitled to a contract from the date of his dismissal.

14 (vii) That the Labour Court erred in law in directing that the respondent be reinstated on a contract of indefinite duration.

15 3. The nature of this type of appeal was considered in Castleisland Cattle Breeding Society v. The Minister for Social and Family Affairs [2004] 4 IR 150, where Geoghegan J. stated at 158:-

"Clearly, on the authorities the High Court or this Court on appeal is entitled to consider whether it was open to the appeals officers to come to the decision which she did arrive at and, if not, whether the evidence conclusively established that Mr. Walsh was an independent contractor. If so, the High Court or this Court on appeal can make a declaration to that effect. A statutory appeal on a question of law is not a judicial review and a question of law includes the question of whether the evidence supports only one conclusion."

16 The Supreme Court gave further consideration to the nature of such appeals in the case of NUI Cork v. Aherne [2005] IESC 40, McCracken J. stated:-

"The Respondent submits that the matters determined by the Labour Court were largely questions of fact and that the matters of fact as found by the Labour Court must be accepted by the High Court in any appeal from its findings. As a statement of principle, this is certainly correct. However this is not to say that the High Court or this Court cannot examine the basis upon which the Labour Court found certain facts. The relevance, or indeed admissibility, of the matters relied on by the Labour Court in determining the facts is a question of law. In particular, the question of whether certain matters ought or ought not to have been considered or taken into account by it in determining the facts, is clearly a question of law and can be considered on appeal."

17 Thus in the present case this Court is entitled to examine the question of whether certain matters ought or ought not to have been considered by the Labour Court...