Mahalingham v Health Service Executive

• Jurisdiction: Ireland
• Judge: Carroll J.
• Judgment Date: 11 May 2005
• Neutral Citation: [2005] IEHC 186
• Docket Number: 720p/2005
• Court: High Court
• Date: 11 May 2005

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

BETWEEN

KARRUPIAH MAHALINGHAM

APPLICANT

V.

THE HEALTH SERVICE EXECUTIVE

RESPONDENT

[2005] IEHC 186

720p/2005

THE HIGH COURT

DUBLIN

EMPLOYMENT

termination

Injunction - Interlocutory - Whether interlocutory injunction restraining termination of employment should be granted - Phelan v BIC [1997] ELR 208 considered - Application for interlocutory injunction refused (2005/720P - Carroll - 11/5/2005) [2005] IEHC 186

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

Facts: The plaintiff was a temporary locum consultant orthopaedic surgeon in Cork University Hospital between 1994 and 2002. The plaintiff unsuccessfully applied on two occasions for the position of orthopaedic surgeon and subsequently he was offered a position as temporary trauma surgeon. Subsequently, the plaintiff was notified by letter that his employment was to be terminated at the expiration of three months because the Board could not sustain the temporary appointment any longer. Consequently, the plaintiff sought interlocutory reliefs restraining his dismissal and prohibiting the defendants from interfering with the discharge of his role as orthopaedic surgeon. He also sought a declaration that he was the holder of a post of consultant orthopaedic surgeon and that he was employed on a contract of indefinite nature. The plaintiff claimed that racial prejudice was the reason he was unsuccessful in his applications for the position of orthopaedic surgeon.

Held by Carroll J. in refusing the relief sought: That even if the plaintiff had an indeterminate contract, that would not prevent termination. The plaintiff was given three months notice prior to the termination of his employment and the question of whether that was reasonable was an issue to be determined at the trial and if the notice was found to be unreasonable then the plaintiff would have a remedy in damages. The issues raised by the applicant did not require in the interests of justice that an injunction should be granted restraining the termination of his employment.

Reporter: L.O’S.

PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT 2003

IRANI v SOUTHHAMPTON & SOUTHWESTHAMPSHIRE HEALTH AUTHORITY 1985 ICR 590

EASTOOD & WILLIAMS v MAGNOX ELECTRIC PLC 2004 WLR 322

MALIK v BANK OF CREDIT & COMMERCE INTERNATIONAL (BCCI ) 1998 AC 20 1997 3 AER 1

O'NEILL v CANADA LIFE ASSURANCE (IRL) LTD UNREP MURPHY 27.1.1999 1999/21/6680

PHELAN v BIC (IRL) LTD 1997 ELR 208UNFAIR DISMISSALS ACTS 1977-1993

NOTE OF JUDGMENT

Carroll J.

delivered on the 11th day of May, 2005

1 The plaintiff is Indian in origin but is now an Irish citizen since 1993. He has an Irish partner and three children. He graduated in Madras in 1977 and was in India until 1986. He got his primary fellowship in February 1988 from the Royal College of Surgeons in Edinburgh and his final fellowship in February, 1990, from the Royal College of Surgeons in Ireland. Between then and 1992 he did a postgraduate middle-grade Registrar Training Programme, a year in Kilkenny, a year in Cappagh and then he was registrar in orthopaedic surgery in Beaumont. For the first half of 1993 he was locum consultant in Tullamore and in Letterkenny. He was appointed as registrar in July 1993 at Cork University Hospital and St. Mary's Orthopaedic Hospital.

2 In June 1994 he was appointed temporary consultant orthopaedic surgeon for two years, from 1^st July, 1994, to 30^th June, 1996. There followed a number of fixed term appointments; some six months, some three months. He was not a locum to anyone else but was appointed to reduce waiting lists. There were four permanent orthopaedic surgeons in Cork University Hospital and the Board sought a further two. In mid 2001 the local Appointments Committee advertised two posts for consultant orthopaedic surgeons. The plaintiff applied. He informed his four colleagues and he said; "all of them were hostile to me and two made racist remarks". He was told by the local Appointments Committee he would not be short-listed. He objected, and he was short-listed. He objected to one of his colleagues being on the Board and he removed himself. Another orthopaedic colleague was on the Board but he (the plaintiff) did not object.

3 He objected to a letter of reference by another of his colleagues and he contradicted what was said in the letter and said:-

"It was not necessary to be appointed as specialist registrar in orthopaedics in order to hold the post of consultant orthopaedic surgeon if there was a suitable period of experience."

4 He was interviewed for the post but was not appointed and Mr. Mark Dolan was appointed. He said his four colleagues made efforts to remove him from his post.

5 He applied for 18 posts as an orthopaedic surgeon at different locations around the country but was never short-listed. He claims the management failed in its duty to protect his position as a consultant orthopaedic surgeon and succumbed to pressure by his colleagues and permitted them to interfere with the terms and conditions of his employment.

6 In May, 2002, 8^th May, 2002, there was a letter to say that Mark Dolan would take over as orthopaedic surgeon, the position held by the plaintiff. In a letter of 30^th May, 2002, to the plaintiff from Mr. MacNamee the manager, with reference to "on-going employment" he said that under the Orthopaedic Surgery Waiting List Initiative, he was employed since 1994 and it was always the intention to structure the post as permanent. Approval was achieved in March 2001 and then the person was appointed through normal recruitment channels. It was through Comhairle na nOspidéal and following the local Appointments Committee but the plaintiff competed unsuccessfully. He said that to clarify his position they were offering him a post as temporary trauma surgeon for one year with immediate effect to 29^th May, 2003. The plaintiff claims no such post exists and he says he continued as consultant orthopaedic surgeon, but his operating time was withdrawn from St. Mary's.

7 In November 2002, one of his colleagues said that his appointment as temporary trauma surgeon failed to fulfil any needs in the departments.

8 In April 2003, another letter from his colleagues said that the issues around the plaintiff were a major source of discussion and stress. In a letter of July 2003, it said the proposal to give him a one year term contract was unacceptable.

9 In February 2004, there was reference to a continuing impasse. In August 2004, he was no longer rostered on call. In September 2004, he was excluded from the 'on-call rota'.

10 By letter dated 28^th February, 2005, his employment was terminated with effect from 31^st May, 2005. The letter said that he had been employed as a temporary trauma surgeon and the Board endeavoured to regularise the post in due course, but sanction was not obtained and the Board could not sustain the temporary appointment any longer. Accordingly he got three months notice.

11 The plaintiff claims that his skills were at risk if he had no appointment to practise his skills and that he is unlikely to obtain alternative employment in the public sector. He has a...