McGrath v Athlone Institute of Technology

• Jurisdiction: Ireland
• Judge: Mr. Justice Hogan
• Judgment Date: 14 June 2011
• Neutral Citation: [2011] IEHC 254
• Court: High Court
• Docket Number: [2010 No. 2136
• Date: 14 June 2011

McGrath v Athlone Institute of Technology

BETWEEN

MICHAEL McGRATH

PLAINTIFF

AND

ATHLONE INSTITUTE OF TECHNOLOGY

DEFENDANT

[2011] IEHC 254

[No. 3666P/2011]

THE HIGH COURT

LABOUR LAW

Employment injunction

Interlocutory injunction - Termination of employment - Redundancy - Alleged representations that permanent contract would be given - Claim of privilege where documents handed over in error - Legal professional privilege - Right to take legal advice - Interests of justice - Test for interlocutory injunction in employment matters - Jurisdiction of court - Submission of claim to Labour Court - Whether jurisdiction to grant injunction in aid of Labour Court - Inherent jurisdiction of court - Entitlement of employer to dismiss - Whether implied preclusion of termination where permanent contract - Whether favourable Labour Court decision would in practice improve right to seek injunction - Byrne v Shannon Foynes Port Co [2008] 1 IR 814; Mannix v Pluck [1975] IR 169; R v Cox and Railton (1884) 14 QBD 153; Mutual Insurance Company v Schaefer (1877) 94 US 467; Doherty v South Dublin County Council (No 2) [2007] IEHC 4, [2007] 2 IR 696; Pierse v Dublin Cemeteries Committee (No 1) [2009] IESC 47, [2010] 1 ILRM 349; Albion Properties Ltd v Moonblast Ltd [2011] IEHC 107, (Unrep, Hogan J, 16/3/2011); State (Vozza) v O Floinn [1957] IR 227; Meadows v Minister for Justice, Equality and Law Reform [2010] IESC 3; S v Minister for Justice, Equality and Law Reform [2011] IEHC 31, (Unrep, Hogan J, 21/1/2011); Grant v Roche Products Ltd [2008] IESC 35, [2008] 4 IR 679; Maha Lingham v Health Service Executive [2005] IESC 889, [2006] 17 ELR 137; Sheehy v Ryan [2008] IESC 14, [2008] 4 IR 258 and Nolan v Emo Oil Services Ltd [2009] IEHC 15, (Unrep, Laffoy J, 21/1/2009) considered - Protection of Employees (Fixed Term Work) Act 2003 (No 29), s 9 - Injunction refused (2011/3666P - Hogan J - 14/6/2011) [2011] IEHC 254

McGrath v Athlone Institute of Technology

PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT 2003 S9

BYRNES v SHANNON FOYNES PORT CO 2008 1 IR 814

MANNIX v PLUCK 1975 IR 169

R v COX & RAILTON 1884 14 QBD 153

MUTUAL INSURANCE COMPANY v SCHAEFER 1877 94 US 467

PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT 2003 S14

PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT 2003 S15(1)

PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT 2003 S13

PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT 2003 S15(6)

DOHERTY v SOUTH DUBLIN CO COUNCIL (NO.2) 2007 2 IR 696

CONSTITUTION ART 34.3.1

PIERSE v DUBLIN CEMETERIES COMMITTEE (NO.1) 2010 1 ILRM 349

ALBION PROPERTIES LTD v MOONBLAST LTD UNREP HOGAN 16.3.2011 2011 IEHC 107

GRANT v ROCHE PRODUCTS LTD 2008 4 IR 679

MAHA LINGAM (ORSE MAHALINGHAM) v HEALTH SERVICE EXECUTIVE (HSE) 2006 17 ELR 137

SHEEHY v RYAN 2008 4 IR 258

NOLAN v EMO OIL SERVICES LTD UNREP LAFFOY 21.1.2009 2009/42/10441 2009 IEHC 15

PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT 2003 S14(2)(C)

1 1. This application for an interlocutory injunction seeks to restrain the termination of the plaintiff's employment with the defendant Athlone Institute of Technology which is presently scheduled to take effect on 20 ^th June, 2011. The plaintiff is currently employed as an Assistant Lecturer on the bricklaying course provided by the Institute. The defendant contends that by reason of the prevailing economic conditions, there is no longer any demand for the course and it proposes to make the plaintiff redundant. It is important to stress that there is no suggestion but that the plaintiff has not been a perfectly satisfactory and competent employee. There is,accordingly, no question of any disciplinary issues or of any imputations against the good name of the plaintiff. It is nevertheless perfectly clear that such termination would, unfortunately, have considerable financial implications for the plaintiff given that, in light of his age and the prevailing economic circumstances, he will not easily find other employment.

2 2. The plaintiff claims that by reason of the fact that he was employed pursuant to a series of fixed term contracts he is now a permanent employee by operation of law. Specifically, he contends that he is entitled to the benefit of a contract of indefinite duration by virtue of the provisions of s. 9 of the Protection of Employees (Fixed-Term Work) Act 2003 ("the 2003 Act") in that it is said that the plaintiff was supplied with fixed term contracts, the aggregate duration of which was greater than four years and in respect of which there was no objective grounds justifying a renewal on a fixed term basis. The Labour Court presently stands seised of the question of whether the plaintiff is entitled to such a contract, an issue to which I will later return.

3 3. The plaintiff further claims that various contractual representations were made to him on behalf of the Institute that if he, together with the various apprentices on the course, undertook certain significant construction projects on behalf of the Institute on the College campus that he would be given a permanent contract. It is not in dispute but that such works were carried out. The Institute maintains, however, that such work was done as part of the regular practical training of the employees. Thus, as the President on the Institute, Ciaran O'Cathain, explained in his affidavit:-

"...all work undertaken by the plaintiff of a building nature on the campus was undertaken in circumstances where there was a training benefit to the employees and nototherwise. It goes without saying that brick and block laying apprentices will be required to build walls and the like and it seemed eminently sensible that they would build walls on the campus rather than building walls to be knocked down."

4 4. Various affidavits have also been filed on behalf of the defendant emphatically denying any suggestions of irregularity or that the plaintiff was promised a permanent contract if he engaged in such construction activities. However, before considering the employment injunction related issues, I must first digress to deal with an issue of privilege.

Privilege

5 5. An affidavit has been filed by another lecturer, Mr. David Holland, in support of the plaintiff. Mr. Holland maintains that a few months ago he accessed his personnel file with the Institute with a view to taking legal advice. He says that in the course of perusing his own file he came across legal advices obtained by the Institute pertaining to the position of the plaintiff. Mr. Holland contends that these advices were to the effect that the plaintiff was entitled to a contract of indefinite duration. The Institute for its part maintains that these letter of advices was placed on the wrong file in error and that it was later removed when the error came to light. It contends that no privilege has thereby been waived.

6 6. It is true that legal professional privilege can be waived where documents are handed over in error. In the nature of things, such errors generally arise during the course of the discovery process where privileged documents are handed over in error by one party's legal advisers to the other. The law on this topic was fully explored by Clarke J. in Byrne v. Shannon Foynes Port Co. [2008] 1 I.R. 814, [2007] IEHC 315. In this case Clarke J. approved the following statement from Matthews and Malek on Disclosure:-

"Thus where such circumstances occur in the context of an inspection of documents, such as procuring inspection of the relevant document by fraud or realising the mistake on inspection but saying nothing, the court will in effect allow the mistake to be corrected, and refuse to permit the opposing party to use the privileged document. The test is in two stages:"

(1) Was it evident to the solicitor seeing privilege documents that a mistake had been made?

(2) If not, would it have been obvious to the hypothetical reasonable solicitor that disclosure had occurred as a result of a mistake? If the answer to either is yes then...the court would normally restrain the solicitor if he did not give the documents back and might restrain him from acting further if he had read the documents and it was impossible for the advantage to be removed in any other way."

7 7. It is perfectly clear that such disclosure as there was took place in error. While I appreciate that Mr. Holland is not a solicitor, if one applies the test of whether it would have been obvious to the hypothetical reasonable solicitor that disclosure had occurred as a result of a mistake, then there can be only one answer to that question. The Institute plainly never intended that disclosure of such advices should take place and, hence, there can be absolutely no question of waiver of privilege.

8 8. In any event, even if the Institute did receive advice along these lines, this would be quite irrelevant to any...