Hosford v Ireland

• Jurisdiction: Ireland
• Judge: Mr. Justice Garrett Simons
• Judgment Date: 03 March 2021
• Neutral Citation: [2021] IEHC 133
• Docket Number: 2020 No. 161 MCA
• Year: 2021
• Court: High Court

BETWEEN

PASCAL HOSFORD

APPLICANT

AND

IRELAND THE ATTORNEY GENERAL MINISTER FOR SOCIAL PROTECTION MINISTER FOR PUBLIC EXPENDITURE AND REFORM MINISTER FOR BUSINESS ENTERPRISE AND INNOVATION

RESPONDENTS

[2021] IEHC 133

Garrett Simons

2020 No. 161 MCA

THE HIGH COURT

JUDGMENT of Mr. Justice Garrett Simons delivered on 3 March 2021

INTRODUCTION

1 This judgment is delivered in respect of an application to strike out the within proceedings as being irregular in form and as representing an abuse of process. The proceedings have been commenced by way of notice of motion, notwithstanding that the proceedings are not of a type for which an originating notice of motion is permitted under the Rules of the Superior Courts.

2 The applicant is a retired civil servant who had previously worked in what is now known as the Department of Social Protection. In these proceedings, the applicant seeks to agitate for two broad categories of declaratory relief as follows. The first category relates to two incidents in a long running employment dispute between the applicant and the Department. These incidents involved the making of deductions to the applicant's pay and pension on the occasion of his retirement in 2019; and the reassignment of the applicant within the Department for a period of time in 2013.

3 The second category of relief sought consists of declaratory orders to the effect that the applicant and members of the Houses of the Oireachtas would have locus standi to pursue proceedings in respect of the treatment of company directors for social insurance purposes. It should be explained that this is not an issue which affects the applicant personally. The applicant had, however, been employed for a time in a managerial role within the section of the Department which dealt with this issue. The applicant says that it came to his attention in this role that certain classes of company director were (allegedly) being improperly characterised as self-employed for social insurance purposes.

4 The respondents contend that all of the above issues have previously been agitated by the applicant, before the Workplace Relations Commission and before the High Court, respectively. It is further contended that the present proceedings fail to disclose any reasonable cause of action, and are an attempt to reopen matters already decided ( res judicata).

5 One of the principal issues for determination in this judgment is whether it represents an abuse of process for the applicant to pursue his employment grievances in the present proceedings in circumstances where those grievances are in one instance, pending before the Labour Court, and, in the other, the subject of an unappealed judgment of the High Court.

PROCEDURAL HISTORY

6 The present proceedings have their immediate genesis in a complaint made by the applicant to the Workplace Relations Commission in December 2019. As explained below, however, the underlying dispute between the applicant and his former employer has been ongoing for a much longer period of time.

7 The applicant is a retired civil servant who had worked in the Department of Social Protection (“ the Department”) until 1 November 2019. The essence of the complaint to the Workplace Relations Commission had been that the Department had acted unlawfully in making certain deductions from the applicant's pay and pension on the occasion of his retirement. These deductions were made in purported recovery of what the Department maintains was an overpayment of a form of sick pay to the applicant for a period of some four months (25 February to 14 June 2019). The sum involved is €8,866.30. The deductions had been applied to monies owing to the applicant in respect of accrued non-statutory annual leave (€2,163.70) and to the applicant's lump sum pension payment (€6,702.60).

8 The complaint to the Workplace Relations Commission had been the subject of an initial determination by an adjudication officer on 28 May 2020. The determination entailed two principal findings as follows. First, that the adjudication officer did not have jurisdiction under the Payment of Wages Act 1991 to investigate the complaint that the Department had acted unlawfully in making a deduction from the applicant's pension lump sum. This finding is based on the adjudication officer's understanding of the definition of “ wages” under section 1 of the Act. Secondly, that the deduction applied to the pay in respect of the accrued non-statutory leave days had been lawful. The adjudication officer held that the Department had complied with the provisions of section 5(5) of the Payment of Wages Act 1991 with regard to the recoupment of an overpayment of wages to the applicant.

9 The applicant has exercised his statutory right of appeal to the Labour Court against the determination of the adjudication officer. As part of his appeal papers, the applicant has filed a very detailed submission dated 3 July 2020, running to some nine pages. The position adopted by the applicant in this submission is that the adjudication officer and the Labour Court have full jurisdiction to determine his complaint (including the pension aspect). The applicant also contends that any deduction from wages must be “ fair and reasonable” having regard to all the circumstances. It is said that the deductions were made in breach of the applicant's legitimate expectations, and that the Department had not indicated an intention to make such deductions when issues in respect of the applicant's pay came before the Workplace Relations Commission previously in the context of an earlier complaint.

10 The appeal is pending before the Labour Court, and is listed for hearing on 16 March 2021. (The hearing will be a “ virtual” or “ remote” hearing). The applicant confirmed to me that he intends to pursue this appeal, and will be participating at the hearing on 16 March 2021.

11 The within proceedings were commenced by issuing a notice of motion out of the Central Office of the High Court on 21 July 2020. This was done within a matter of weeks of the applicant having submitted his appeal to the Labour Court on 3 July 2020. As discussed under the next heading, the within proceedings are irregular in form.

12 The notice of motion seeks four declaratory orders. Two of these cut against the legal issues arising in the appeal pending before the Labour Court. More specifically, the applicant seeks a declaratory order to the effect that the provisions of section 5(5) of the Payment of Wages Act 1991 are null and void. It is said, in particular, that the provisions of the legislation are repugnant to the Constitution of Ireland and to the European Convention on Human Rights. Allied to this relief is a claim for a declaratory order that the Workplace Relations Commission and the Labour Court have jurisdiction to invalidate national legislation. The judgment of the Court of Justice of the European Union in Case C-378/17, Minister for Justice and Equality v. Workplace Relations Commission is cited as authority for this proposition.

13 Another one of the four reliefs sought in the notice of motion is also directed to what might be described as the long running employment dispute. This relief is directed to the events of September 2013 when the applicant had been reassigned within the Department. The applicant had sought to challenge the reassignment at the time by way of judicial review proceedings. These proceedings were dismissed by the High Court (Noonan J.) by reserved judgment delivered on 6 February 2015, Hosford v. Minister for Social Protection [2015] IEHC 59. The applicant did not appeal against this judgment.

14 The applicant now seeks declaratory relief in the present proceedings to the effect that the submissions made to the High Court on behalf of the Minister for Social Protection in the earlier judicial review proceedings are repugnant to EU law, repugnant to the Constitution of Ireland, and repugnant to the European Convention on Human Rights. More specifically, it appears from the grounding affidavit sworn by the applicant in the present proceedings that the gravamen of his complaint is that the pleas and submissions made on behalf of the Minister in the earlier judicial review proceedings, to the effect that a decision to reassign a civil servant does not attract constitutional justice nor an obligation to state reasons, are incorrect as a matter of law.

15 The fourth and final declaratory relief sought in the present proceedings is directed to the issue underlying “ protected disclosures” which the applicant had made pursuant to the Protected Disclosures Act 2014. In brief, it is the applicant's long held belief that the treatment of certain types of company directors for social insurance purposes is erroneous. More specifically, the applicant alleges that certain proprietary company directors, i.e. directors who hold a particular proportion of the shareholding of the company, were improperly characterised as being self-employed rather than as employees of the relevant company. On his interpretation, a significant number of directors have been paying social insurance contributions at the incorrect rate. The implication being that the companies involved have not paid the proper employer contribution and that the directors involved will not have an entitlement to certain social insurance benefits. This is an issue which the applicant says came to his attention in the course of his employment in the relevant section of the Department which dealt with the treatment of company directors. The applicant regards himself as a “whistle-blower”.

16 Significantly, the declaratory relief sought in the present proceedings is confined to a declaration to the effect that the applicant or, alternatively, a member of the Houses of the Oireachtas, would have locus standi to pursue a legal challenge. No relief is sought in respect of the...