Martin v The Minister for Social Protection

• Jurisdiction: Ireland
• Judge: MR. JUSTICE MICHAEL PEART
• Judgment Date: 19 February 2019
• Neutral Citation: [2019] IECA 22
• Docket Number: Record Number: 2017/337
• Court: Court of Appeal (Ireland)
• Date: 19 February 2019

[2019] IECA 22

THE COURT OF APPEAL

Peart J.

Peart J.

Irvine J.

McGovern J.

Record Number: 2017/337

BETWEEN:

TONYA MARTIN

APPLICANT/APPELLANT

- AND -

THE MINISTER FOR SOCIAL PROTECTION

RESPONDENT

Activation programme – Dismissal – Judicial review – Appellant seeking an order quashing a decision to dismiss her from an activation programme operated on behalf of the respondent – Whether the trial judge erred in law and fact by applying the wrong test or standard in determining that the impugned decision was a private law dispute

Facts: The appellant, Ms Martin, sought, inter alia, an order quashing a decision dated 8th March 2016 to dismiss her from the Tús Programme, described as a new activation programme operated on behalf of the respondent, the Minister for Social Protection, by the Tolka Area Partnership. Her dismissal followed an incident of misconduct by her on the 25th February 2016 involving “violent or threatening behaviour [and] malicious mischief resulting in danger to fellow employees or other persons or danger to or destruction of the organisation’s property or equipment”. A consequence of her dismissal from her employment on the programme was her disqualification from receiving Job Seekers Allowance from the Department of Social Protection for a period of 9 weeks. By order of the High Court (Binchy J) made on the 14th June 2017, the appellant’s application for reliefs by way of judicial review was dismissed because the trial judge was satisfied that the decision sought to be quashed was not a decision made by the respondent Minister, but rather by a different entity, namely Tolka Area Partnership, which was not party to the proceedings. The appellant appealed to the Court of Appeal against that finding, submitting that the trial judge: (i) erred in law and fact by applying the wrong test or standard in determining that the impugned decision was a private law dispute; (ii) gave undue weight to the fact that the appellant’s contract of employment was with partnership, and not with the respondent; (iii) failed to have adequate regard to the fact the applicant was required by the respondent to take up employment with the partnership in order to remain eligible for her statutory entitlement to a Jobseekers’ Allowance, and that, as a result of arrangements arrived at by the respondent in exercising public law functions, her dismissal by the partnership gave rise to the loss of her entitlement to Jobseekers’ Allowance to which she would otherwise be statutorily entitled; (iv) failed to have adequate regard to the fact that the breach of fair procedures, dismissal and penalty were inextricably linked to the respondent, and that the respondent had failed to provide a fair or proportionate process leading to the decision impugned, as was the public law duty of the respondent; (v) failed to hold that as a result of procedures designed and adopted by the respondent, it had been determined that the appellant has deprived herself of an entitlement to the payment in question due to her own misconduct, but (a) without providing for hearing on the issue, (b) without ascertaining how or why that conclusion has been arrived at, (c) without adhering to the principle of audi alteram partem, and (d) in circumstances where the appellant was denied the opportunity to attend her own disciplinary hearing having arrived 5 minutes late, and in circumstances where in addition the applicant’s written account of matters was not considered.

Held by Peart J that he found no fault with the reasoning of, and the conclusions reached by the trial judge.

Peart J held that he would dismiss the appeal.

Appeal dismissed.

JUDGMENT OF MR. JUSTICE MICHAEL PEART DELIVERED ON THE 19TH DAY OF FEBRUARY 2019

1 This is an appeal against the order of the High Court (Binchy J.) made on the 14th June 2017 whereby the appellant's application for reliefs by way of judicial review was dismissed because, as explained in a written judgment delivered on the 31st May 2017 ( [2017] IEHC 361), the trial judge was satisfied that the decision sought to be quashed was not a decision made by the respondent Minister, but rather by a different entity, namely Tolka Area Partnership (‘the partnership’) which is not party to the proceedings. The appellant now appeals to this Court against that finding.

2 In her proceedings the appellant sought, inter alia, an order quashing a decision dated 8th March 2016 to dismiss her from the Tús Programme, which is described as a new activation programme operated on behalf of the respondent by the Tolka Area Partnership (‘the partnership’). Her dismissal followed an incident of misconduct by her on the 25th February 2016 involving ‘violent or threatening behaviour [and] malicious mischief resulting in danger to fellow employees or other persons or danger to or destruction of the organisation's property or equipment’. A consequence of her dismissal from her employment on the programme was her disqualification from receiving Job Seekers Allowance from the Department of Social Protection for a period of 9 weeks.

3 The applicant had been in receipt of Jobseekers” Allowance for some 12 months, having been notified by letter dated 30th April 2015 from the partnership that she had been randomly selected by the Department of Social Protection to take part in the Tús Programme in which she had previously indicated an interest.

4 Part of the background of this case is that following the above incident a disciplinary meeting was arranged by the partnership for the 29th February 2016 to which the appellant was summoned to appear. At that meeting she denied the allegations. She was asked to submit a written account of the incident, and the meeting was put back to the 7th March 2016 at 4pm so that she could do so. However, she arrived 5 minutes late for the meeting on the 7th March 2016, and even though she had prepared a written account to submit to the meeting, and had made it known that she had arrived, and the reasons why she was slightly delayed, she was not permitted to participate in the resumed hearing which proceeded to a conclusion in her absence.

5 The appellant was notified of the decision to dismiss her from her employment on the programme by letter from the partnership dated 8th March 2016. She received this letter on the 11th March 2016. Its final paragraph notified her that she was entitled to appeal the decision to dismiss her ‘within three working days of the decision’ [Emphasis provided]. The appellant says that she telephoned her supervisor, and informed her she had no opportunity to appeal within the specified period. She requested an extension of that period, but this was refused. By letter dated 15th March 2016 she was informed that since she had not lodged any appeal within three working days of the days of the hearing as required, her employment with the Tús Programme would cease on the 18th March 2016 and her file would be returned to the Department for Social Protection for review.

6 The appellant received a second letter dated 15th March 2016 from the Department stating that it had been decided that she was disqualified from receiving her Jobseekers” allowance for a period of 9 weeks on the grounds that she had lost her job though her own misconduct. The letter went on to state:

‘The reason for my decision is: you have deprived yourself of an income due to losing your position on the Tús Programme. Additionally, you failed to engage fully with the disciplinary procedures in place which resulted in your dismissal.’

7 The appellant made an appeal to the social welfare appeals office who issued a decision dismissing the appeal on the 6th July 2016, stating: ‘It appears the Department acted in accordance with the legislation when it disqualified the appellant from receiving Jobseeker's Allowance for 9 weeks’.

8 The trial judge made no findings in relation to the appellant's complaints about the fairness of the procedures that led to her dismissal, and stated that any such complaints should be directed to the partnership and not the Minister.

The trial judge's judgment

9 Having set out a summary of the relevant factual background, and the submissions made by the parties, the trial judge expressed his conclusions as follows, commencing at para. 38 of his judgment:

‘38. There cannot be the slightest doubt but that the decision that was taken to dismiss the applicant from her employment by the Partnership, was a decision taken by the Partnership itself, and not the respondent. The mere fact that the respondent has a significant oversight role in relation to the administration of the Scheme, and provides funding for the Scheme, does not and could not serve so as to treat a decision of the Partnership as though it were as a matter of law, a decision of the respondent.

39. The fact that the applicant was required to take up employment with the Partnership in order to remain eligible for Jobseeker's Allowance is not relevant for the purposes of these proceedings; nor is the fact that her dismissal by the Partnership gave rise to the loss of her entitlement to Jobseeker's Allowance (for the limited period of nine weeks, for much of which she received another social welfare benefit that was just €2.00 less per week than Jobseeker's Allowance). It is a matter for the Oireachtas to set the criteria for eligibility for social welfare benefits.

40. The applicant has undoubtedly made out a case that her dismissal from her employment by the Partnership was effected in a manner that is contrary to fair procedures, although because the Partnership is not a party to these proceedings (and nor could it be, it being a private body) the Court does not have the benefit of knowing what the Partnership would have to say in response to the allegations of the applicant. But in any case, those are matters between the applicant and the Partnership, and not between...