Holland v Athlone Institute of Technology

• Jurisdiction: Ireland
• Judge: Mr. Justice Hogan
• Judgment Date: 26 July 2011
• Neutral Citation: [2011] IEHC 414
• Judgment citation (vLex): [2011] 7 JIC 2602
• Court: High Court
• Date: 26 July 2011

[2011] IEHC 414

THE HIGH COURT

[No. 5598 P/2011]

Holland v Athlone Institute of Technology

BETWEEN

DAVID HOLLAND

PLAINTIFF

AND

ATHLONE INSTITUTE OF TECHNOLOGY

DEFENDANT

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

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 S15(6)

EC DIR 1999/70

QUEEN v SECRETARY OF STATE FOR TRANSPORT EXPARTE FACTORTAME LTD & ORS C-221/89 1990 ECR I-2433

SHEEHY v RYAN 2008 4 IR 258

FORD MOTOR COMPANY v AMALGAMATED UNION OF ENGINEERING WORKERS 1969 2 QB 303

KENNY v AN POST 1988 IR 285

GOULDING CHEMICALS LTD v BOLGER 1977 IR 211

CURRAN v MIN FOR EDUCATION 2009 4 IR 300

WEBB v IRELAND 1988 IR 353

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

EMPLOYMENT LAW

Dismissal

Interlocutory injunction - Fixed term worker - Contract of indefinite duration - Terms - Effective remedy - Whether court obliged to fashion remedy in order to guarantee right to effective remedy - Labour Court - Whether effect of Labour Court finding that plaintiff was entitled to contract of indefinite duration placed plaintiff in superior position to holder of contract whose status was never in doubt - Whether employer entitled to terminate employment of holder of contract of indefinite duration -- Whether departmental circulars incorporated terms preventing dismissal for redundancy into contract - Whether departmental circulars gave rise to legitimate expectation that job security was enhanced - Public service agreement - Croke Park agreement - Justiciability - Whether Government intended to create legal relations in public service agreement - Whether public service agreement conferred rights on third parties - Whether public service agreement capable of giving rise to legitimate expectation - Whether public service agreement applied in political and industrial relations spheres only - Whether language of public service agreement too imprecise, conditional and aspiration to give rise to legitimate expectation - Whether substantial issue raised - McGrath v Athlone Institute of Technology [2011] IEHC 254 (Unrep, Hogan J, 14/6/2011), Curran v Minister for Education [2009] IEHC 378, [2009] 4 IR 300 and Webb v Ireland [1988] IR 353 considered - Sheehy v Ryan [2008] IESC 14, [2008] 4 IR 258 and Maha Lingam v Health Service Executive [2005] IESC 89 (Unrep, SC, 4/10/2005) applied - Ford Motor Company v Amalgamated Union of Engineering Workers [1969] 2 QB 303 approved - Interlocutory injunction granted (2011/5598P - Hogan J - 26/7/2011) [2011] IEHC 414

Holland v Athlone Institute of Technology

Facts The plaintiff had been employed as a lecturer in bricklaying in the Department of Trades with the respondent. The plaintiff had been employed on a fixed term contract and was subsequently employed on a contract which stated that "this contract will continue pending the continuation of apprentice courses in the Brickwork area." It was common case that the demand for the courses had fallen and the defendant sought to make the plaintiff redundant. An interim injunction had been granted restraining the termination of the employment and the plaintiff sought an interlocutory injunction in respect of same. The Labour Court had found that the contract was one of indefinite duration (and had appealed this finding to the High Court). An issue was also raised as to whether the Croke Park Agreement created legal relations capable of creating an enforceable legitimate expectation which the plaintiff could enforce.

Held by Hogan in granting the injunction. The Supreme Court confirmed in Sheehy v. Ryan [2008] IESC 14 that, absent a contractual stipulation to the contrary, employment could be terminated by the employer. The common law was not an impediment to termination and there was nothing in the Protection of Employees (Fixed Term Work) Act, 2003 to suggest that the employment of such a re-instated employee could not be terminated in the future. If that were to happen, the employee must then elect between pursuing the common law remedy of wrongful dismissal or relief under the Unfair Dismissals Acts. The Croke Park Agreement could not be taken to have created enforceable legal rights which were justifiable at the hands of an individual public sector employee nor a legitimate expectation that no person working in the public sector would be subject to redundancy. Given that the plaintiff had satisfied the test as outlined in the case Maha Lingam v. Health Service Executive [2005] IESC 89, an interlocutory injunction would be granted restraining his dismissal pending the trial of the action.

Reporter: R.F.

1 1. This application for an interlocutory injunction should really be read in conjunction with my earlier judgment in McGrath v. Athlone Institute of Technology [2011] IEHC 254. Both cases raises important issues concerning the operation of the Protection of Employees (Fixed Term Work) Act 2003 ("the 2003 Act") and the availability of effective remedies. The present case also raises what is, in essence, a new issue, namely, the enforceability in legal proceedings of the Public Service Agreement 2010/2014. This is commonly known as the Croke Park Agreement and I propose to use that familiar term in this judgment.

2 2. The present case arises in this way. The plaintiff, David Holland, has been employed as a lecturer in bricklaying in the Department of Trades since January 2005. His initial employment was pursuant to a fixed term contract for one year and this was followed a further fixed term contract of two years' duration which expired on 31 ^st December, 2007. This was then followed by a further fixed purpose contract which commenced on 1 ^st January, 2008.

3 3. Clause 4 of the contract provided that:-

"This is a fixed purpose contract between the Institute and the Lecturer. Subject to a satisfactory service, this contract will continue pending the continuation of apprentice courses in the Brickwork area."

4 4. There does not appear to be any real doubt but that the demand for such courses has completely dried up in the present economic climate. The Institute has decided to discontinue such courses and by letter dated 24 ^th January, 2011, it gave the plaintiff notice that it intended to make him redundant with effect from the 20 ^th June, 2011. On that day Irvine J. granted an interim injunction restraining the termination of the employment and that injunction has been continued pending this present decision.

5 5. There has been one development of importance since I first delivered judgment in McGrath on 14 ^th June, 2011. At that time, a decision of the Labour Court was awaited in respect of the plaintiff's entitlement to a contract of indefinite duration. At the time a Rights Commissioner had ruled against the claim, but this was overturned by the Labour Court in its decision of 17 ^th June, 2011. In that decision the Court found that the contract of January, 2008 was not in its own term a fixed term contract. The Court found in the alternative that there were no objective grounds justifying the renewal of the contract as a fixed term contract (assuming such it was), so that any attempt to do so was rendered void by s. 9(2). The contract accordingly became a contract of indefinite duration by virtue of s. 9(3) of the 2003 Act.

6 6. I do not overlook the fact that the Institute has appealed this decision to this Court pursuant to s. 15(6) of the 2003 Act. I propose nevertheless to assume for present purposes that the plaintiff has a contract of indefinite duration. While fully accepting that the decision of the Labour Court is of significance, it has also to be borne in mind that I made exactly the same assumption in favour of the plaintiff in McGrath, albeit that in the latter case the Labour Court had yet to render its decision.

The issue of effective remedies

7 7. A constant theme of the plaintiff's submissions was that this Court was obliged to fashion a remedy to ensure an effective remedy was always available. This was said to be especially so given that the 2003 Act is designed to transpose the provisions of Directive 1999/70EC into law and well known authorities such as Case C-213/89Factortame (No.2) [1990] ECR I-2433 were prayed in aid for this purpose.

8 8. For my part, I am bound to say that this issue is really nihil ad rem so far as the present case is concerned. The question of effective remedies was fully discussed by me in McGrath where I observed that:-

"If, nevertheless, the plaintiff were to be left with the decision of an administrative agency whose efficacy was otherwise wholly undermined if no interim relief could be given by this Court, then in such exceptional cases, this Court must be deemed to enjoy such a jurisdiction, not least by reason of the obligation placed on the judicial organ of the State by the terms of Article 40.3.1 of the Constitution to ensure that legal rights can be appropriately vindicated…"

9 9. I respectfully adhere to these views. Here there is, in fact, no question of the Court being required to grant an injunction in aid of an administrative tribunal. Unlike McGrath, the Labour Court has already given its decision and I am proceeding on the basis that this decision is correct and will ultimately govern Mr. Holland's case.

What is the effect of the Labour Court's decision?

10 10. It must be recalled that the Labour Court actually found that the contracts in question of Mr. Holland and his colleagues was "not fixed-term contracts within the meaning of the Act and that they were, by their own terms, contracts for indefinite duration". It was only by way of an alternative that the Court found that any restrictions...