Lingam v Health Service Executive

• Jurisdiction: Ireland
• Judge: FENNELLY J
• Judgment Date: 04 October 2005
• Neutral Citation: [2005] IESC 89
• Docket Number: Appeal No. 215/05
• Court: Supreme Court
• Date: 04 October 2005

MAHA LINGAM (ORSE MAHALINGHAM) v HEALTH SERVICE EXECUTIVE (HSE)

BETWEEN

MAHA LINGAM

Applicant

v

HEALTH SERVICE EXECUTIVE

Defendant

[2005] IESC 89

Fennelly J.

McCracken J.

Macken J.

Appeal No. 215/05

THE SUPREME COURT

UNFAIR DISMISSALS ACT 1977

FENNELLY v ASSICURAZIONI GENERALI SPA 1985 3 ILTR 73

EASTWOOD & ANOTHER v MAGNOX ELECTRIC PLC 2004 3 AER 991

PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT 2003

EEC DIR 99/70

1 4th day of October, 2005 by FENNELLY J.

2 This application comes to the court by way of an appeal from the judgment of Miss Justice Carroll in the High Court. On the 11 ^th May this year she dismissed the plaintiff appellant's application for an interlocutory injunction restraining the defendant, the Health Service Executive, as the successor of the Southern Health Board, from dismissing him from a post of temporary orthopaedic surgeon in the employment of that health board but specifically at Cork University Hospital and St Mary's Orthopaedic Hospital in Cork.

3 The facts set out in the judgment of Miss Justice Carroll are not contested in any serious respect. It is sufficient to refer to a very small number of those facts. The applicant is a native of India and he took his initial medical qualifications there and worked there until 1986. However, he did become an Irish citizen in the 1990s and he acquired further high qualifications in surgery, his Primary Fellowship from Edinburgh in 1988 and his final Fellowship in Dublin in 1990. Thereafter he worked at a number of hospitals in Ireland including Sligo, Kilkenny,Beaumont and his connection with Cork began in or about July, 1993. Initially he was employed as a registrar by the Southern Health Board but the employments that culminated in the one which is at issue in this case commenced in or about June of 1994. There followed a number of successive temporary consultant appointments renewed over a number of years on a three or six month basis perfectly regularly apparently by orders made by the health board communicated to the plaintiff/appellant. That went on until 2001.

4 There were already four surgeons in the employment of the board, which at that stage advertised for two other surgeons in effect on a permanent basis. The posts were duly and properly approved by Comhairle na nOspideal and it is part of the background to the plaintiff/appellant's complaints that he was not treated fairly in connection with that application, but in reality neither that application, nor his failure to obtain either of the posts then advertised are material to what is at issue at present, though some of the events that surrounded his failure to obtain either of those posts form part of the grievance that he advances in the present application.

5 Suffice it to say that the plaintiff/appellant's complaint is that as a result of lack of support from his fellow orthopaedic surgeons in the health board he failed to be shortlisted at one stage and, in his contention, he failed to be properly considered for either of those posts and in the event he did not obtain any appointment with the health board at that stage.

6 Nonetheless, he continued in the employment of the health board right up to this year. The basis of his employment is somewhat obscure, because it is contested as to whether the board actually had power to appoint him as what was called "a temporary trauma surgeon". Certainly he was employed. Nonetheless there were difficulties and it is those difficulties that form the background to the present application to a very large extent. There were difficulties in particular with the other surgeons and the lack of support that in part, according to the plaintiff/appellant, contributed to his not obtaining one of the posts in 2001 continued, andaccording to the plaintiff/appellant the behaviour of his colleagues amounted in effect to ethnic or racial slurs upon him. This immediately gives rise to the problem that the only defendant in the present action is the Health Service Executive. None of the other surgeons are defendants and, as has been pointed out in the course of the hearing, the persons against whom those allegations are made are not present in court and have not an opportunity to respond to them. That is one reason for being cautious in making any comments on them and another is that of course this is an interlocutory application and the plaintiff/appellant is perfectly entitled to proceed to the full hearing of the action and nothing the court would say at this stage should prejudice either his position or that of the defendant or indeed of that of the other persons mentioned.

7 It is sufficient to say, for present purposes, that the two aspects of the case that need to be considered by the court are, firstly, that by a letter of the 28 ^th February, 2005, the plaintiff/appellant was given three months notice of termination of his employment as of 31 ^st May, 2005. The defendant contends in the affidavit sworn by Mr McNamara on behalf of the defendant/respondent that the reason for that notice of termination was that the board, now the executive, had been unable to obtain approval for the continued employment of the plaintiff/appellant in such a temporary...