Health Service Executive v Abdel Raouf Sallam
| Jurisdiction | Ireland |
| Judge | Ms. Justice Baker |
| Judgment Date | 09 May 2014 |
| Neutral Citation | [2014] IEHC 298 |
| Court | High Court |
| Date | 09 May 2014 |
[2014] IEHC 298
THE HIGH COURT
BETWEEN
AND
PROTECTION OF EMPLOYEES (FIXED-TERM) ACT 2003 S9(3)
PROTECTION OF EMPLOYEES (FIXED-TERM) ACT 2003 S9(1)
PROTECTION OF EMPLOYEES (FIXED-TERM) ACT 2003 S9(2)
PROTECTION OF EMPLOYEES (FIXED-TERM) ACT 2003 S9(4)
PROTECTION OF EMPLOYEES (FIXED-TERM) ACT 2003 S9(5)
NATIONAL UNIVERSITY OF IRELAND CORK v AHERN & ORS 2005 2 IR 577 2005/44/9152 2005 IESC 40
PROTECTION OF EMPLOYEES (FIXED-TERM) ACT 2003 S8(1)
PROTECTION OF EMPLOYEES (FIXED-TERM) ACT 2003 S8(2)
PROTECTION OF EMPLOYEES (FIXED-TERM) ACT 2003 S13
PROTECTION OF EMPLOYEES (FIXED-TERM) ACT 2003 S15(6)
HEALTH SERVICE EXECUTIVE (HSE) DUBLIN NORTH EAST v UMAR 2011 22 ELR 229 2011/25/6555 2011 IEHC 146
DUNNES STORES v DOYLE UNREP BIRMINGHAM 1.11.2013 (EX TEMPORE) [TRANSCRIPT NOT AVAILABLE]
AN POST v MCNEILL 1998 9 ELR 19 1998/36/13632
ADENELER & ORS v ELLINIKOS ORGANISMOS GALAKTOS (ELOG) 2007 AER (EC) 82 2006 3 CMLR 30 2006 IRLR 716 2006 ECR I-6057
EEC DIR 70/1999 CLAUSE 5
PUPINO, IN RE 2005 3 WLR 1102 2005 2 CMLR 63 2006 QB 83 2006 AER (EC) 142 2005 ECR I-5285
MIN FOR JUSTICE v ALTARAVICIUS 2006 3 IR 148 2006/39/8296 2006 IESC 23
EIRCOM LTD v COMMISSION FOR COMMUNICATIONS REGULATION 2007 1 IR 1 2006 IEHC 138
MACKLIN & MCDONALD v GRAECEN & CO LTD & ORS 1983 IR 61 1982 ILRM 82 1982/7/1218
ANALOG DEVICES BV & ORS v ZURICH INSURANCE CO & AMERICAN GUARANTEE & LIABILITY INSURANCE CO 2005 1 IR 274 2005 2 ILRM 131 2005/2/242 2005 IESC 12
UPM KYMMENE CORPORATION & ORS v BWG LTD UNREP LAFFOY 11.6.1999 1999/24/7894 1999 IEHC 178
NERNEY v THOMAS CROSBIE HOLDINGS LTD 2013 24 ELR 238 2013/39/11404 2013 IEHC 127
RUSSELL v MOUNT TEMPLE COMPREHENSIVE SCHOOL UNREP HANNA 4.12.2009 2009/50/12659 2009 IEHC 533
MIN FOR FINANCE v MCARDLE 2007 2 ILRM 438 2007 18 ELR 165 2007/40/8242 2007 IEHC 98
ST CATHERINE'S COLLEGE FOR HOME ECONOMICS & ANOR v MALONEY & ANOR 2009 20 ELR 143
LOCAL AUTHORITIES (OFFICERS & EMPLOYEES) ACT 1926
LOCAL AUTHORITIES (OFFICERS & EMPLOYEES) ACT 1926 S6(1)
DEL CERRO ALONSO v OSAKIDETZA SERVICIO VASCO DE SALUD 2007 3 CMLR 1492 2008 ICR 145 2007 IRLR 911 2007 AER (D) 87 (SEP) 2007 ECR I-7109
PROTECTION OF EMPLOYEES (FIXED-TERM) ACT 2003 S8(4)
Employment – Contract of employment – Contract of indefinite duration – Respondent challenging the termination of his employment contract – Whether Labour Court has fallen into error
Facts: The respondent (Dr Sallam) is a consultant obstetrician and gynaecologist. He commenced employment with the appellant (Health Service Executive) in 2003 and worked under a series of fixed-term contracts. In 2010 Dr Moore, for whom the respondent was acting as locum, retired from his employment. The respondent was not provided with another written contract. In 2011 the appellant informed the respondent that a successful candidate would be appointed to replace Dr Moore and that the respondent"s Sligo contract would expire on that date. The respondent challenged the termination, arguing that once Dr Moore retired, he was no longer acting as Dr Moore"s locum, but fulfilled the purpose of his contract through performance such that his continued employment was pursuant to a contract of indefinite duration. A hearing of the Rights Commissioner in 2012 found that the respondent"s complaints were not well founded. The respondent appealed to the Labour Court which held in 2013 that he is entitled to a contract of indefinite duration pursuant to s.9(3) of the Protection of Employees (Fixed-Term) Act 2003 and a consequential order for re-engagement in accordance with s.14. The Health Service Executive appealed to the High Court, pleading that the various contracts with the respondent were for a specific period or purpose, and were necessary for the proper management of the appellant"s service needs, within the margin of discretion granted by Council Directive 1999/70/EC.
Held by Baker J that, having considered the Directive, the Labour Court did not err in law in finding that the respondent was continuously employed by a series of fixed-term contracts. Baker J held that the Labour Court was correct in holding that the Sligo contract was one for a fixed purpose and it did not need to engage in the exercise of applying the contra proferentum rule as a tool of interpretation. In the circumstances, Baker J found no error in the conclusion reached by the Labour Court although it made an error in the way in which it applied the canon of construction of contractual terms. Baker J held that there was no error of law in the finding of the Labour Court that the respondent came to be employed on a separate and distinct contract by the appellant following the determination of the locum contract; the finding of fact which follows from this is not one with which the High Court can interfere and it was a finding made on the basis of the view the Labour Court took of the conduct and behaviour of the parties. Baker J held that the Labour Court was wrong in law in finding that the second Sligo contract was a contract of indefinite duration which was deemed to come into existence by the operation of s. 9(3). Baker J held that the Labour Court did not identify the contract which might have been a renewal to which s. 9(1) or (2) might have applied, and in the absence of any finding that the second Sligo contract was such a renewal, the provisions of s. 9(3) do not apply. Baker J held that the Labour Court erred in law insofar as it purported to say that the absence of a written notification for the purposes of s. 8(1), of itself, meant that it was entitled to draw an inference that no objective condition justifying the offering of a fixed-term contract actually existed. Baker J held that the Labour Court's finding that there existed no justifying reason for the creation of a fixed-term contract in regard to the second Sligo contract, insofar as it was based merely on an analysis of the correspondence, is a finding of fact with which the High Court cannot interfere. The final conclusion drawn by the Labour Court namely that a contract of indefinite duration exists as between the respondent and the applicant was held to be incorrect; the Labour Court was entitled to take the view that a second contract of employment came to exist between the respondent and the applicant following the retirement of Dr Moore and this contract arose as a matter of implication from the conduct of the parties, however this is not a contract to which the provisions of the Act of 2003 applied and the Labour Court erred in law in making a declaration under s. 9(3).
Baker J held that that the appellant succeeds to some extent in the appeal. Following the delivery of the judgment the parties agreed that an order was to be made on consent setting aside the determination of the Labour Court, and Baker J so ordered.
Appeal allowed in part.
JUDGMENT of Ms. Justice Baker delivered the 9th day of May, 2014
1. This is an appeal by the HSE from a determination of the Labour Court made on 17 th January, 2013, that the respondent is entitled to a contract of indefinite duration pursuant to s. 9(3) of the Protection of Employees (Fixed-Term) Act 2003 ("Act of 2003"), and a consequential order for the re-engagement of the respondent in accordance with s. 14 of the Act.
2. The respondent is a consultant obstetrician and gynaecologist. He commenced his employment with the appellant on 3 rd June, 2003, and worked a under a series of contracts until the 16 th August, 2011. The table below sets out the series and purpose of the contracts that the respondent had with the appellant:-
| Start date | Finish date | Location | Purpose of contract |
| 3 rd June, 2003 | 2 nd July, 2004 | Wexford General Hospital | Temporary Consultant |
| 3 rd July, 2004 | 30 th June, 2004 | Wexford General Hospital | Temporary Consultant |
| 1 st July, 2004 | 30 th April, 2007 | Wexford General Hospital | Pending permanent filling of post |
| 17 th May, 2007 | 18 th May, 2007 | Portlaoise Hospital | Locum for named doctor |
| 11 th June, 2007 | 29 th June, 2007 | Cavan General Hospital | Locum for a number of named doctors |
| 1 st July, 2007 | Sligo General Hospital | Locum for named doctor | |
| 1 st June, 2010 | Sligo General Hospital | Retirement of named doctor | |
| 16 th August, 2011 | Sligo General Hospital | Employment terminated on appointment of another doctor |
3. The respondent's contract of employment at Sligo General Hospital commenced on 1 st July, 2007, for the position of locum consultant obstetrician and gynaecologist at the hospital. Initially, the respondent was provided with a contract with an expected cessation date of 31 st December, 2007, but upon expressing dissatisfaction with that provision, the respondent was provided with an "Amended Specific Purpose Contract (Temporary)" which did not provide a specific date of cessation and clause 3 whereof set out the purpose and termination of his employment as being for the purpose of Locum Consultant Obstetrician Gynaecologist in the absence of Dr. Victor Moore". An earlier e-mail from the appellant to the respondent, dated 27 th June, 2007, in response to a query from the respondent as to why he was not then been given a contract of indefinite duration, stated:-
You are being offered a Specified Purpose Contract as Locum Consultant to fill the post as Dr. Moore's Locum. You are not being offered a post of indefinite duration as this post is vacant on a temporary basis and the duration of such a post will cease on the...
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