Minister for Agriculture v Barry

JurisdictionIreland
JudgeMr. Justice John Edwards
Judgment Date07 July 2008
Neutral Citation[2008] IEHC 216
CourtHigh Court
Docket Number[2007 No. 334 SP]
Date07 July 2008
Min for Agriculture v Barry & Ors
IN THE MATTER OF THE REDUNDANCY PAYMENTS ACTS, 1967 TO
2003
AND IN THE MATTER OF THE MINIMUM NOTICE AND TERMS OF
EMPLOYMENT ACTS, 1973 TO 2001
AND IN THE MATTER OF AN APPEAL FROM DETERMINATION No.
26/43 OF THE EMPLOYMENT APPEALS TRIBUNAL
AND IN THE MATTER OF AN APPEAL BY THE MINISTER FOR
AGRICULTURE AND FOOD

Between:

THE MINISTER FOR AGRICULTURE AND FOOD
Appellant
-AND-
JOHN BARRY, CONOR O'BRIEN, MARY O'CONNOR, MICHAEL SPRATT AND CIARAN DOLAN
Respondents

[2008] IEHC 216

Record No: No. 334 SP/2007

THE HIGH COURT

EMPLOYMENT LAW

Nature of work relationship

Contract for services - Contract of service - Mutuality of obligation - Enterprise test - Control - Integration - Whether tribunal erred in law - Whether tribunal applied incorrect test - Appeal from Employment Appeals Tribunal - Point of law - Jurisdiction of court to review - Principles which apply - Whether any definitive test - Henry Denny & Sons (Ireland) Ltd v Minister for Social Welfare [1998] 1 IR 34, Tierney v An Post [2000] 1 IR 536, Electricity Supply Board v Minister for Social Welfare [2006] IEHC 59, (Unrep, Gilligan J, 21/2/2006), Market Investigations v Minister of Social Security [1969] 2 QB 173 considered; The Moorcock (1889) 14 PD 64 and Shirlaw v Southern Foundries (1926) Ltd. [1939] 2 KB 206 applied; Nethermere (St Neots) Ltd v Gardiner [1984] ICR 612 and Carmichael v National Power plc [1999] ICR 1226 approved - Minister's appeal allowed; matter remitted to EAT (2007/344SP - Edwards J - 7/7/2008) [2008] IEHC 216

Min for Agriculture v Barry & Ors

Facts: the respondents had been appointed as temporary veterinary inspectors by the appellant to work shifts at a meat factory. When that factory ceased operating, the respondents contended that they were servants of the appellant and therefore entitled to payments under the Redundancy Payments Act 1967 and the Minimum Notice and Terms of Employment Act 1973. On appeal to it by the respondent, the Employment Appeals Tribunal, in a preliminary ruling, found that the respondents were employed under a contract of service and therefore employees of the appellant. The appellant appealed that finding as a question of law to the High Court under section 40 of the Act of 1967 and section 11 of the Act of 1973.

Held by Mr Justice Edwards in allowing the appeals that generally courts should be slow to interfere with the decisions of expert tribunals and do so only where it had came to a conclusion on the facts before it based on an erroneous application of the law to be applied to those facts.

That, in considering whether a particular employment was to be regarded as a contract for service or of service, each case had to be considered in the light of its particular facts and it was for the court or tribunal considering those facts to draw the appropriate inferences from them by applying the general principles which the courts had developed. A working relationship between two persons could be subject to one or more contracts, either or none of which could be a contract of service or for service.

That the requirement of mutuality of obligation had to be satisfied if a contract of service was to exist. The mere fact of its existence was not, of itself, determinative of the nature of the relationship and it was necessary to examine the relationship further.

That the Tribunal had fallen into error in formulating the preliminary question in the way that it did and in failing to have regard to whether the relationship between the parties was subject to just one contract or more than one in determining the nature of the work relationship between the parties. That initial error was compounded by a finding of mutuality of obligations on a flawed basis in that it had been predicated on the existence of an implied agreement between the parties which was untenable.

Reporter: P.C.

REDUNDANCY PAYMENTS ACT 1967

REDUNDANCY PAYMENTS ACT 1971

REDUNDANCY PAYMENTS ACT 1979

REDUNDANCY PAYMENTS ACT 2003

MINIMUM NOTICE & TERMS OF EMPLOYMENT ACT 1973 S40

MINIMUM NOTICE & TERMS OF EMPLOYMENT ACT 1973 S11(2)

HENRY DENNY & SONS (IRL) LTD v MIN FOR SOCIAL WELFARE 1998 1 IR 34

NATIONAL UNIVERSITY OF IRELAND CORK v AHERN & ORS 5005 2 IR 577

ANTI-DISCRIMINATION (PAY) ACT 1974 S8(3)

O'KELLY v TRUSTHOUSE FORTE PLC 1993 ICR 728

AIRFIX FOOTWEAR LTD v COPE 1978 ICR 1210

NETHERMERE (ST NEOTS) LTD v GARDINER 1984 ICR 612

CARMICHAEL v NATIONAL POWER PLC 1999 ICR 1226

MOORCOCK, THE 1889 14 PD 64

SHIRLAW v SOUTHERN FOUNDRIES 1939 2 KB 206

TIERNEY v AN POST 2000 1 IR 536 2000 2 ILRM 214 1999 ELR 293

WESTERN PEOPLE NEWSPAPER v A WORKER 24.5.2004 EDA 047

CASTLEISLAND CATTLE BREEDING SOCIETY v MIN FOR SOCIAL & FAMILY AFFAIRS 2004 4 IR 150

ELECTRICITY SUPPLY BOARD v MIN FOR SOCIAL COMMUNITY & FAMILY AFFAIRS UNREP GILLIGAN 21.2.2006 2006/22/4534 2006 IEHC 59

MCAULIFFE v MIN FOR SOCIAL WELFARE 1995 2 IR 238 1995 1 ILRM 189

CASSIDY v MIN FOR HEALTH 1951 2 KB 343

QUEENSLAND STATIONS PROPERTY LTD v FEDERAL COMMISSIONER OF TAXATION 1945 70 CLR 539

MARKET INVESTIGATIONS LTD v MIN FOR SOCIAL SECURITY 1969 2 QB 173, 1969 2 WLR 1, 1968 3 AER 732

GRAHAM v MIN FOR INDUSTRY & COMMERCE 1933 IR 156

SUNDAY TRIBUNE LTD, IN RE 1984 IR 505

REDUNDANCY PAYMENTS ACT 1973 S11(2)

1

Mr. Justice John Edwards delivered on the 7th day of July, 2008

Introduction
2

The respondents are veterinary surgeons who worked for the appellant as Temporary Veterinary Inspectors (hereinafter TVI's) at the Galtee Meats Plant at Mitchelstown Co Cork. Following the closure of that plant in October 2004 the respondents claimed entitlement to payments from the appellant pursuant to the Redundancy Payments Acts 1967 - 2003 and under the Minimum Notice and Terms of Employment Acts 1973-2001. However, any entitlement to the payments claimed was contingent on them having been employees who were employed at all material times by the appellant under a contract of service. The appellant contended that they had not been employees employed under a contract of service and in each case refused to make the payments claimed. Each of the respondents respectively brought an appeal against the refusal in their case to the Employment Appeals Tribunal (hereinafter the EAT). The EAT decided to consider on a conjoined basis a preliminary point in each appeal, namely whether the respondents as TVT's "were employed under a contract of service or a contract for service by the Department of Agriculture and Food." By a determination dated the 12 th of March 2007 the EAT ruled that the respondents were employed under a contract of service, and therefore they were employees.

3

This appeal is brought pursuant to section 40 of the Redundancy Payments Acts 1967- 2003 and section 11 (2) of the Minimum Notice and Terms of Employment Act 1973-2001, which each provide for an appeal on a question of law against a decision of the Employment Appeals Tribunal. The appellant contends that the EAT misdirected itself as to the applicable law, alternatively it failed to correctly apply the law to the facts before it. Specifically it is alleged that the EAT failed to apply the correct test as to whether the respondents had been employed on a contract of service or a contract for services and/or failed to correctly apply that test to the facts before it.

The Court's jurisdiction to review - appeal on a question of law
4

In Henry Denny & Sons (Ireland) Ltd v. Minister for Social Welfare [1998] 1 IR 34 Hamilton C.J. cautioned:

5

"...the courts should be slow to interfere with the decisions of expert administrative tribunals. Where conclusions are based upon an identifiable error of law or an unsustainable finding of fact by a tribunal such conclusions must be corrected. Otherwise it should be recognised that tribunals which have been given statutory tasks to perform and exercise their functions, as is now usually the case, with a high degree of expertise and provide coherent and balanced judgments on the evidence and arguments heard by them it should not be necessary for the courts to review their decisions by way of appeal or judicial review."

6

This begs the question whether a determination by the EAT of the nature of a work relationship between two parties is properly to be characterised as a matter of law, as matter of fact or as a mixed question of law and fact. Some assistance is provided by the case of National University of Ireland Cork v. Ahern [2005] 2.I.R.577 cited by the appellant. In that case the Supreme Court considered what is meant by a " question of law" in the context of an appeal from the Labour Court under section 8(3) of the Anti-Discrimination Pay Act 1974. McCracken J, with whom the other members of the Supreme Court agreed, stated:

"The respondents submit that the matters determined by the Labour Court were largely questions of fact and that matters of fact as found by the Labour Court must be accepted by the High Court in any appeal from its findings. As a statement of principle, this is certainly correct. However, this is not to say that the High Court or this court cannot examine the basis upon which the Labour Court found certain facts. The relevance, or indeed admissibility, of the matters relied on by the Labour Court in determining the facts is a question of law. In particular the question of whether certain matters ought or ought not to have been considered by the Labour Court and ought or ought not to have been taken into account by it in determining the facts, is clearly a question of law, and can be considered on an appeal under s.8(3)."

7

I find the judgment of Sir John Donaldson M.R. in the English case of O'Kelly and others v. Trusthouse Forte P.L. C. [1983] I. C.R 728 also provides me with considerable assistance on this question. At page 761 of the...

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