McNamara v Health Service Executive (HSE)

JudgeMiss Justice Laffoy
Judgment Date26 May 2009
Neutral Citation[2009] IEHC 418
CourtHigh Court
Date26 May 2009

[2009] IEHC 418


[No. 6113P/2008]
McNamara v Health Service Executive (HSE)






CAHILL v DUBLIN CITY UNIVERSITY 2007 18 ELR 113 2007/8/1579 2007 IEHC 20




Settlement terms - Earlier proceedings settled by parties - Terms of settlement in dispute - Conflicting accounts of terms of settlement - Finding of fact - Obligation on parties to act reasonably - Contract of employment - Career break - Plaintiff seeking reinstatement to original locus - Mandatory injunction - Whether tantamount to specific performance of employment contract - Damages - Whether mandatory injunction appropriate in circumstances - Cahill v Dublin City University [2007] IEHC 20 [2007] ELR 113 considered - Health Act 1970 (No 1) - Declaratory relief granted; injunctive relief refused (2008/6113P - Laffoy J - 26/5/2009) [2009] IEHC 418

McNamara v Health Service Executive

Facts: The plaintiff was a Consultant Orthodontist who was an employee of the defendant and sought a permanent injunction to restrain the defendant from refusing her permission to resume her post at a particular hospital, in addition to damages. A dispute ensued between the plaintiff and the defendant in 2002 and the proceedings were struck out with no order in 2003. The compromise agreement was not reduced to writing. A compromise of the proceedings was reached whereby the plaintiff would remain on special leave. The basis of the compromise was that the plaintiff would take a career break for five years. Following the reconstitution of the Health Boards from 2000, her employment was transferred between the entities as they were reconstituted that would evolve into the Health Services Executive. The defendant maintained that there was no vacancy for her in the Dublin mid-Leinster region to facilitate her return from career break in 2008. In the circumstances, her career break was being extended for a further 12 months while efforts were being made to source a suitable vacancy for her. The plaintiff claimed that the purported extension of her career break for an additional 12 months was in breach of her contract of employment.

Held by the High Court per Laffoy J. that having regard to her contractual rights, the plaintiff was entitled to resume her position as a Consultant Orthodontist with the defendant on the terms of her contract dated from 2008 but without identifying the actual locus where she might be required to provide orthodontic services. She did not have an entitlement to a mandatory order to a position in a particular hospital. She was entitled to be paid her salary and emoluments from 2008.

Reporter: E.F.


Judgment of Miss Justice Laffoy delivered on the 26th day of May, 2009.

The proceedings

The plaintiff in these proceedings is a Consultant Orthodontist, who is an employee of the defendant. She seeks permanent injunctive relief in various forms. The essence of the relief she claims is encapsulated in paragraph (a) of the indorsement of claim on the plenary summons, which issued on 25 th July, 2008, in which she seeks an injunction restraining the defendant from refusing to permit her to resume her post as Consultant Orthodontist at St. James's Hospital. She also seeks damages.

Factual background

The plaintiff commenced her employment with the predecessor of the defendant, the Eastern Health Board, on 1 st July, 1996, having by a letter dated 23 rd March, 1996 to the Chief Executive of the Eastern Health Board indicated that she was prepared to accept an appointment in the capacity as Consultant Orthodontist under the Eastern Health Board subject to the qualifications and to the particulars of office approved by the Minister for Health for the office. The particulars of the office were set out in a three page document, which was accompanied by a one page document headed "Duties". Both documents were of general application and not personalised to the plaintiff. The provisions therein which are relevant to the issues of these proceedings are as follows:


(1) Clause I, which made it clear that the plaintiff had the status of officer and would hold office under Part II of the Health Act 1970 and which also stipulated that the plaintiff would perform such duties as the Chief Executive Officer from time to time determined subject to any directions of the Minister for Health, referring to the one page document showing the "duties already assigned".


(2) Paragraph 1 of the "Duties" document, which provided (in part) as follows:

"To provide in person a consultant orthodontic service for eligible persons at such places and at such times as the Chief Executive Office may determine ……"


(3) Paragraph 6 of the "Duties" document, which provided as follows:

"To perform, if required, duties similar to those above on behalf of or in any hospital or any health board or hospital authority which has entered into agreement with the Health Board for the use of his/her services".


When the plaintiff took up her duties with the Eastern Health Board she was located at St. James's Hospital in Dublin. She remained working at that location until the end of December 2002. In the interim, the Eastern Health Board was dissolved on 29 th February, 2000 and replaced by the Eastern Regional Health Authority (ERHA) and three new Area Health Boards with effect from 1 st March, 2000. The plaintiff's employment was transferred to ERHA with effect from 1 st March, 2000 and she was assigned to the South Western Area Health Board (SWAHB).


Disputes arose between the plaintiff and SWAHB which were the subject of judicial review proceedings in this Court on two occasions - in 2000 and in 2002/2003. The judicial review proceedings in 2000 (2000 No. 628 J.R.) were the subject of a judgment of Kearns J. delivered on 16 th February, 2001. The judicial review proceedings in 2002/2003 (2002 No. 85 J.R.) (the 2002 proceedings), having been at hearing before Gilligan J. for a number of days in March and April 2003, were ultimately compromised on 9 th April, 2003. The dispute between the parties with which these proceedings are concerned arises from that compromise and its consequences. From the point of view of formalities, the 2002 proceedings were struck out by the Court with no order on 9 th April, 2003. The compromise agreement was not reduced to writing.


At the time the 2002 proceedings were compromised the plaintiff was on special leave without pay for domestic purposes from 4 th January, 2003 to 4 th July, 2003 inclusive, because of an illness of a member of her family. To the extent that it is not in dispute, the basis of the compromise was that the plaintiff would take a career break from her position as a consultant orthodontist for a period of five years commencing on 7 th July, 2003, which was the Monday after the special leave without pay would cease and each side would bear its/her own costs of the 2002 proceedings. The kernel of the dispute between the parties in these proceedings is whether the plaintiff was to take a career break "simpliciter" or unconditionally, as the plaintiff contends, or on the terms of various Department of Health circulars commencing with Circular S146/99 dated 16 th March, 1984, as the defendant contends.


In any event, after the compromise the plaintiff remained on special leave and then commenced her career break on 7 th July, 2003 for five years until 7 th July, 2008. In the interim, from 1 st January, 2005 the defendant took over the statutory functions formerly exercised by, inter alia, SWAHB. The plaintiff's employment was transferred from ERHA to the defendant and she became an employee of the defendant.


In anticipation of the cessation of her career break, the plaintiff, by letter dated 3 rd April, 2008, advised the Chief Executive Officer of the defendant that she would "be resuming [her] post as consultant orthodontist, St. James's Hospital, Dublin" on 7 th July, 2008. Following a reminder dated 6 th June, 2008, the plaintiff was informed by letter dated 19 th June, 2008 from the defendant's Acting Assistant Director of Human Resources for the Dublin Mid-Leinster region that no vacancy existed at the time in Dublin Mid-Leinster to facilitate her return from career break on 7 th July, 2008. In the circumstances her career break was being extended for a further 12 months while efforts were being made to source a suitable vacancy for her.


That letter elicited the opening sally in these proceedings when, by letter of 14 th July, 2008, the plaintiff's solicitors informed the defendant that it was not entitled to enforce the decision communicated by the letter of 19 th June, 2008, which, it was alleged, was in clear breach of the plaintiff's contract and the defendant's own career break scheme. It was contended that the plaintiff was entitled to resume her duties forthwith at St. James's Hospital. Proceedings in this Court to compel the defendant to comply with its obligations to the plaintiff were threatened without further notice. The response of the defendant's solicitors, which was preceded by a holding letter, was contained in a letter of 22 nd July, 2008 which adopted exactly the same position as had been adopted in the letter of 19 th June, 2008.

Interlocutory application/course of proceedings

The plaintiff issued a motion seeking interlocutory relief contemporaneously with the plenary summons on 25 th July, 2008. When the matter came before this Court (Sheehan J.) on 29 th July, 2008, the interlocutory application was dealt with on the basis that the defendant undertook to restore the plaintiff's salary as and...

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1 cases
  • Earley v Health Service Executive
    • Ireland
    • High Court
    • 27 November 2015
    ...the decision to reassign was unlawful, and that the Court could adopt the approach of Laffoy J. in McNamara v. Health Service Executive [2009] IEHC 418 where the learned judge expressed confidence that the defendant as a statutory body would act in accordance with the declaration granted. W......
1 books & journal articles
  • Employment injunctions: an over-loose discretion
    • Ireland
    • Irish Judicial Studies Journal No. 2-9, July 2009
    • 1 July 2009
    ...of the matter. These are the ones that I, in any event, have come across: _____________________________________________________ 16[2009] I.E.H.C. 418. 2009] Employment Injunctions 13  The plaintiff seeks an injunction requiring the defendant to reinstate him with immediate effect to his po......

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