Kirwan and Others v Mental Health Commission
| Jurisdiction | Ireland |
| Judge | Ms. Justice Laffoy |
| Judgment Date | 28 May 2012 |
| Neutral Citation | [2012] IEHC 217 |
| Court | High Court |
| Date | 28 May 2012 |
[2012] IEHC 217
THE HIGH COURT
BETWEEN
AND
MENTAL HEALTH ACT 2001
HENRY DENNY & SONS (IRL) LTD v MIN FOR SOCIAL WELFARE 1998 1 IR 34
MAHA LINGHAM v HEALTH SERVICE EXECUTIVE 2006 17 ELR 137
BERGIN v GALWAY CLINIC DOUGHISKA LTD 2008 2 IR 205
MCGRATH v ATHLONE INSTITUTE OF TECHNOLOGY UNREP HOGAN 14.6.2011 2011/32/8949 2011 IEHC 254
O'DOMHNAILL v HEALTH SERVICE EXECUTIVE UNREP LAFFOY 9.11.2011 2011/41/11663 2011 IEHC 421
PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT 2003 S14
HOLLAND v ATHLONE INSTITUTE OF TECHNOLOGY 2012 23 ELR 1
PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT 2003 S15(6)
IMPACT v MIN FOR AGRICULTURE 2009 AER (EC) 306 2008 ECR I-2483 2008 2 CMLR 47 2008 IRLR 552 2008 PENS LR 323
PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT 2003 PART III
EMPLOYMENT LAW
Interlocutory injunction
Contracts for services - Contracts terminated - Fixed term contracts - Employees - Contracts of indefinite duration - Injunctions preventing termination of contracts - Whether plaintiffs having strong case of likelihood of success at substantive hearing - Maha Lingham v Health Service Executive [2005] IESC 89, (2005) 17 E.L.R. 137 applied; McGrath v Athlone Institute of Technology [2011] IEHC 254 (Unrep, HC, Hogan J, 14/6/2011) and O'Domhnaill v Health Service Executive [2011] IEHC 421 (Unrep, HC, Laffoy J, 9/11/2011) followed - Protection of Employees (Fixed-Term Work) Act 2003 (No 29) - Relief refused (2012/4221P - Laffoy J - 28/5/2012) [2012] IEHC 217
Kirwan v Mental Health Commission
Facts: The plaintiffs had acted as members of panels of Mental Health Clerks which had been formed by the defendant. They were retained under successive contracts with the defendant, each of which was titled a ‘contract for services’. The plaintiffs were notified in February 2012 that their contracts would not be renewed upon expiry in April 2012 due to financial pressures, and sought to claim that they had been at all times had the status of an employee and therefore entitled to the rights and protection that status would require. As part of the litigation on the matter which was to be heard by a Rights Commissioner, the plaintiffs applied for interlocutory injunctions to protect their positions.
Held by Laffoy J, that there were two elements to the plaintiffs” claim. Firstly, that they were employees of the defendant, and secondly that they were entitled to continuing contracts and protection under the provisions of the Protection of Employees (Fixed-Term Work) Act 2003. In regards to the second element, the plaintiffs had failed to make out a strong case that their contracts had not been terminated in April 2012. The remedies available to them if successful in their claim before the Rights Commissioner would be a matter for the Commissioner, and the Court would have no role in this.
Further, the Rights Commissioner had exclusive jurisdiction to consider the strength of the first element of the claim, and it would not be appropriate for the Court to comment on the point. The application was therefore dismissed.
Judgment of Ms. Justice Laffoy delivered on 28th day of May, 2012.
2 1.1 The defendant is a statutory body which was established pursuant to the Mental Health Act 2001 (the Act of 2001). It has statutory responsibility for appointing Mental Health Tribunals to review the involuntary admission of patients pursuant to admissions orders or renewal orders as required by the Act of 2001 and, when so required by the defendant, to make decisions on other matters provided for in the Act of 2001.
3 1.2 Up to and including 30 th April, 2012 each of the plaintiffs was a member of a panel of Mental Health Tribunal clerks established by the defendant. The way the system operated was that a member of the panel who was assigned as a clerk to a particular Mental Health Tribunal performed functions somewhat akin to the functions performed by a court registrar.
4 1.3 On the application to which this judgment relates, which is an application for an interlocutory injunction in the terms which I will outline later, the contractual relationship between each of the plaintiffs and the defendant has been comprehensively outlined in the grounding affidavit of the fourth defendant (Ms. Greene) sworn on 27 th April, 2012 and the documents exhibited therein. The contractual relationship of the remainder of the plaintiffs with the defendant is based on similar facts and documentation.
5 1.4 Ms. Greene acted as clerk to various Mental Health Tribunals over the five and a half year period from 1 st November, 2006 to 30 th April, 2012 under five successive contracts with the defendant, each contract being described as a "Contract for Service".
6 1.5 The first contract was dated 11 th October, 2006 (the 2006 Contract) and was executed by Ms. Greene and by an officer on behalf of the defendant. By way of background, having recited the Act of 2001 and the defendant's functions thereunder, it was recited that the defendant "shall establish and maintain panels of Mental Health Tribunal Clerks who satisfy the required criteria and are willing to provide their services in accordance with the provisions of the [Act of 2001] and the Contract for Service set out herein.". Under the heading "Tenure", Clause 4.1 provided that Ms. Greene "shall hold office for a period not exceeding three years commencing 1 st November, 2006 and ending 31 st October, 2009". It was further provided that she was appointed for an initial trial period of twelve months after which time confirmation of the appointment would be issued, subject to satisfactory performance. That happened and Ms. Greene served for the full term of three years. It was also provided that she should be eligible for re-appointment on the expiration of the term by effluxion of time.
7 1.6 Clause 5 of the 2006 Contract, which was headed "Contract for Service", provided as follows:
"Nothing in this Contract for Service shall give rise to, or be construed as giving rise to, a relationship of employer and employee between the [defendant] and [Ms. Greene]".
As one would expect, it contained provisions in relation to confidentiality, ethics in public office, training, mode of payment, expenses, indemnity and suchlike. As regards fees, it was provided in Clause 11 that there would be a standard scale of fees, as set out in Schedule 1, which would be payable on a per case basis. There was a provision entitling the defendant to remove Ms. Greene from the panel. There were also provisions in relation to the quality of services to be provided by Ms. Greene and the services to be provided were outlined in Schedule 2.
8 1.7 Clause 16 of the 2006 Contract, on which particular reliance has been placed by the plaintiffs, dealt with taxation. Clause 16.1 provided:
"The fees paid to Mental Health Tribunal Clerks are chargeable to tax under Schedule 'E' and subject to deductions of tax, and where appropriate PRSI and the Health Contribution, at source under the PAYE system."
Clause 16.2 stated that the defendant was obliged to comply with the PAYE and PRSI regulations and set out certain steps to be taken by Ms. Greene. Clause 16.3 provided:
"For the avoidance of doubt, notwithstanding the tax treatment of the Mental Health Tribunal Clerk by the Office of the Revenue Commissioners, no employment relationship exists between the Mental Health Tribunal Clerk and the [defendant] in respect of the duration of the … term."
9 1.8 There was a typical "entire agreement" clause in the 2006 Contract. Further, it was provided that the validity, construction and performance of the contract should be governed by Irish law.
10 1.9 The second contract given by the defendant to Ms. Greene was dated 11th November, 2009. It was also executed by Ms. Greene and by an officer of the defendant. The term was one year commencing on 1 st November, 2009 and ending on 31 st October, 2010. Subject to that variation, it was in similar terms to the first 2006 Contract.
11 1.10 The third contract was preceded by a letter dated 21 st October, 2010 from the defendant to Ms. Greene, in which it was stated that the defendant was reviewing the then current arrangements for the provision of services provided by the panel of clerks and it was expected that the review would take some months and that the plaintiff would be informed of the outcome once the review was completed. In the meantime, Ms. Greene was offered an extension of her "contract for services for a period ending on 30 th April, 2011", which she accepted. The third contract, which was undated, was executed by Ms. Greene and an officer of the defendant and, subject to setting out the term as the "period commencing 1 st November, 2010 and ending 30 th April, 2011", it was in the same terms as the 2006 Contract and the second contract.
12 1.11 Prior to the expiration of the term of the third contract, by letter dated 13 th April, 2011 the defendant informed Ms. Greene that the review of the clerking arrangements was ongoing. She was offered another six month period and she accepted it. She was informed that the defendant had "updated the content and format of the contract" and, in particular, her attention was drawn to the fact that "the fees and processes for re-claiming expenses, etc." had been altered. The fourth contract was dated 25 th April, 2011 (the 2011 Contract) and it was executed by an authorised signatory on behalf of the defendant and by the plaintiff. It recited that the defendant was then currently reviewing its clerking arrangements and had decided to extend...
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