Power v Health Service Executive

• Jurisdiction: Ireland
• Judge: Mr. Justice Allen
• Judgment Date: 26 June 2019
• Neutral Citation: [2019] IEHC 462
• Court: High Court
• Docket Number: [2019 No. 1637 P.]
• Date: 26 June 2019

BETWEEN

MAURICE POWER

PLAINTIFF

AND

HEALTH SERVICE EXECUTIVE

DEFENDANT

[2019] IEHC 462

Allen J.

[2019 No. 1637 P.]

THE HIGH COURT

Injunctions – Right to an effective remedy – Jurisdiction – Plaintiff seeking injunctions described as orders in aid of the plaintiff being permitted to vindicate his right to an effective remedy – Whether the High Court had jurisdiction to entertain the application

Facts: The plaintiff, Mr Power, applied to the High Court for a variety of injunctions, described as orders in aid of the plaintiff being permitted to vindicate his right to an effective remedy, pending the determination by the Workplace Relations Commission (WRC), or any appeal therefrom, of a claim which had been made by the plaintiff to the WRC pursuant to s. 9 of the Protection of Employees (Fixed-Term Work) Act 2003. The plaintiff had been employed by the defendant, Health Service Executive, since October, 2014 on a series of fixed-term contracts, as interim Chief Executive Officer (CEO) of the Saolta University Health Care Group. In his complaint to the WRC the plaintiff claimed to be entitled, by operation of law, to a contract of indefinite duration in respect of the role of CEO. By this application the plaintiff sought to be kept in post, and on salary, and to prevent the defendant from appointing a replacement CEO, until his claim had been finally determined.

Held by Allen J that the High Court had no jurisdiction to adjudicate either upon the merits of the plaintiff’s claim under the 2003 Act or what the appropriate remedy might be if he were to succeed before the bodies empowered by law to determine the dispute. He held that the High Court has no jurisdiction to make interim or interlocutory orders in cases in which it has no jurisdiction to decide the substance of the dispute. He held that the High Court has no inherent jurisdiction to supplement the statutory remedies made available by the Oireachtas to administrative tribunals for the enforcement of statutory rights. He held that the plaintiff had the right to pursue his statutory claim and that the body charged with adjudicating that claim was the body charged with deciding, if appropriate, which of the statutory remedies was appropriate. He held that the plaintiff’s right to pursue his claim was not in any way ineffective or less meaningful because the available remedy may not be all that he might wish, or might be different to the remedy available to the courts in dealing with common law claims, or other administrative agencies in dealing with other statutory claims. In Allen J’s view, the orders sought by the plaintiff were not orders in aid of his statutory claim but orders directed to attempting to shape the remedy which might be ordered in the event that his claim were to succeed. He held that, apart altogether from anything else, to accede to such an application would be to put the plaintiff in a better position than any of his colleagues whose right to a contract of indefinite duration was never in doubt. For those reasons Allen J accepted the submission on behalf of the defendant that the court did not have jurisdiction to entertain this application.

Allen J held that the application must be refused.

Application refused.

JUDGMENT of Mr. Justice Allen delivered on the 26th day of June, 2019

Introduction

1 This is an application for a variety of injunctions, described as orders in aid of the plaintiff being permitted to vindicate his right to an effective remedy, pending the determination by the Workplace Relations Commission, or any appeal therefrom, of a claim which has been made by the plaintiff to the Workplace Relations Commission pursuant to s. 9 of the Protection of Employees (Fixed-Term Work) Act, 2003.

2 The plaintiff has been employed by the defendant since October, 2014 on a series of fixed-term contracts, as interim Chief Executve Officer of the Saolta University Health Care Group. In his complaint to the WRC the plaintiff claims to be entitled, by operation of law, to a contract of indefinite duration in respect of the role of Chief Executive Officer.

3 By this application the plaintiff seeks to be kept in post, and on salary, and to prevent the defendant from appointing a replacement CEO, until his claim has been finally determined.

Background

4 Saolta University Health Care Group is a group of Health Service Executive hospitals in the West and North of Ireland.

5 The plaintiff is, and since 1999 has been, employed by the defendant in a number of roles. He was first of all employed as a management accountant, then as finance manager of University Hospital Galway, and then as Chief Financial Officer of the defendant's Galway-Roscommon Hospital Group.

6 Upon his appointment as Chief Financial Officer for HSE West on 9th January, 2012, the plaintiff signed a written contract of employment. Subject to successful completion of a period of probation (which the plaintiff successfully completed) the appointment was as a permanent member of staff.

7 In or about October, 2014 the plaintiff was asked by the defendant's National Director of Human Resources to fill in as interim group Chief Executive Officer. A letter dated 20th November, 2014 confirmed his appointment as such from 5th October, 2014 to 31st March, 2015, or until the role was filled on a permanent basis, whichever might be sooner. The letter spelled out that on cessation of his role as Chief Executive Officer the plaintiff's employment would revert to his substantive terms and conditions as a permanent employee of the HSE.

8 The plaintiff's appointment or assignment was continued from time to time, most recently by a letter dated 12th December, 2018 by which the defendant advised the plaintiff that his ‘ temporary reassignment to the position of Interim Chief Executive Officer at Saolta University Health Care Group’ had been renewed from 1st January, 2019. The assignment was said to be on a ‘ fixed term basis’ for the period required to complete the selection and appointment of a successful candidate for the CEO post or pending alternative arrangements.

9 In the series of standard form letters and terms and conditions provided to the plaintiff over the years, the role was sometimes described as interim Chief Executive Officer and sometimes hospital group Chief Executive or Chief Executive Officer of Saolta Hospital Group. It was repeatedly stated that the terms of the ‘ Fixed Term Work Act, 2004’ (sic.) as it related to successive contracts, did not apply to the plaintiff's assignment as he continued to hold a permanent contract at his substantive grade. The letters and terms and conditions variously indicated that on cessation of the plaintiff's role he would revert to his substantive terms and conditions as a permanent employee of the HSE, or would revert to his substantive permanent position on the same terms and conditions applicable to that position, or to an alternative permanent position at the same grade.

10 At the time of the plaintiff's initial assignment in October, 2014 it appears to have been envisaged (or at least the defendant's letter of 20th November, 2014 contemplated) that the position of the Chief Executive Officer of the group might be permanently filled before 31st March, 2015 but the competition for the post did not get underway until October, 2018.

11 By letter dated 14th November, 2018 the plaintiff was informed that his fixed term appointment in the role of Chief Executive Officer was due to expire on 30th December, 2018, which was prior to the expected completion date of the recruitment competition then underway by the Public Appointments Service to fill a number of hospital group Chief Executive Officer positions. It was said that the plaintiff's appointment would be extended from 31st December, 2018 ‘ on a fixed term whole-time basis for the purpose of providing cover for the duration of the time it takes [the Public Appointments Service] to complete the selection process and the successful candidate taking up the CEO position in Saolta University Health Care Group’, which was what was done by the letter of 12th December, 2018, to which I have referred.

12 The plaintiff was well aware of the competition because he was a candidate in it. The competition had been advertised by the Public Appointments Service in September, 2018 with a closing date of 4th October, 2018. It is not apparent from the plaintiff's affidavit but it is from the replying affidavit of Ms. Rosarii Mannion, on behalf of the defendant, that the competition was for appointment for a five-year fixed term contract.

13 In his affidavit grounding this application the plaintiff disclosed that he had applied for the position, had been shortlisted, had attended a preliminary interview, had not been asked to attend a second interview, and had unsuccessfully appealed his non-selection for a second interview. The plaintiff's appeal against the failure to ask him to return for a second interview was by letter dated 7th February, 2019 and the result of his appeal was made known to him by letter dated 19th February, 2019.

14 In his grounding affidavit the plaintiff deposed that in applying for what he characterised as his current role, he was in no sense accepting that the process was legitimate and he said that he had done so under protest, and had clearly communicated this to the defendant. I do not believe that this averment can withstand scrutiny. The plaintiff first asserted his entitlement to a contract of indefinite duration by e-mail of 14th January, 2019, which was about a week before his first interview. He lodged his complaint to the Workplace Relations Commission on 18th February, 2019 and on the same day instructed his solicitors to call upon the defendant to immediately suspend the competition. The plaintiff, by his solicitors' letter of 18th February, 2018, asserted that he had acquired four years'...