Russell v Mount Temple Comprehensive School

JurisdictionIreland
JudgeMr. Justice Michael Hanna
Judgment Date04 December 2009
Neutral Citation[2009] IEHC 533
CourtHigh Court
Date04 December 2009

[2009] IEHC 533

THE HIGH COURT

[No. 176 MCA/2008]
Russell v Mount Temple Comprehensive School
[2009] IEHC 533
IN THE MATTER OF THE PROTECTION OF EMPLOYEES (FIXED TERM WORK) ACT 2003 AND ORDER 80 4C OF THE RULES OF THE SUPERIOR COURTS

BETWEEN

FERGUS RUSSELL
APPLICANT

AND

MOUNT TEMPLE COMPREHENSIVE SCHOOL
RESPONDENT

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

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

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

EEC DIR 1999/70

PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT 2003 S8

PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT 2003 S7(1)

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

PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT 2003 S13(1)(D)

PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT 2003 S9(1)

PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT 2003 S9(4)

PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT 2003 S9(2)

PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT 2003 S9(3)

RUSSELL v MOUNT TEMPLE COMPREHENSIVE SCHOOL 2009 20 ELR 81

MARA (INSPECTOR OF TAXES) v HUMMINGBIRD LTD 1982 ILRM 421

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

BATES & ORS v MODEL BAKERY LTD & CHARLES KELLY LTD 1993 1 IR 359 1993 ILRM 22 1992/8/2550

PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT 2003 S13(1)(A)

PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT 2003 S13(1)(B)

PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT 2003 S13(1)(C)

EMPLOYMENT:

Labour Court

Appeal on point of law - Principles to be adopted by High Court - Succession of fixed term contracts - Whether applicant entitled to full time permanent post once objective grounds for renewal of fixed term contract ceased to exist - Whether non-renewal for avoidance of contract being deemed one of indefinite duration - Whether decision of Labour Court containing error of law - Whether applicant entitled to raise points not canvassed before Labour Court - Bates v Model Bakery Ltd [1993] 1 IR 359 followed; Mara (Inspector of Taxes) v Hummingbird Ltd [1982] ILRM 421; Electricity Supply Board v Minister for Social Community and Family Affairs [2006] IEHC 59, (Unrep, Gilligan J, 26/2/2006); Deely v Information Commissioner [2001] 3 IR 439; Henry Denny & Sons (Ireland) Ltd v Minister for Social Welfare [1998] 1 IR 35; Premier Periclase Ltd. v Commissioner of Valuation (Unrep, Kelly J, 24/6/1999) and Brides v Minister for Agriculture [1998] 4 IR 250 considered - Protection of Employees (Fixed Term Work) Act 2003 (No 29), ss. 7, 8, 9, 13, 14 & 15(6) - Application refused (2008/176MCA - Hanna J - 4/12/2009) [2009] IEHC 533

Russell v Mount Temple Comprehensive School

Practice and procedure - Appeal on point of law - Approach to be adopted - Role of High Court on appeal - Issue estoppel - Whether applicant entitled to advance argument not advanced before Labour Court.

Facts section 8 of the Protection of Employees (Fixed Term Work) Act 2003 provides, inter alia,:- "(2) Where an employer proposes to renew a fixed-term contract, the fixed-term employee shall be informed in writing by the employer of the objective grounds justifying the renewal of the fixed-term contract and the failure to offer a contract of indefinite duration, at the latest by the date of the renewal.

(3) A written statement under subsection (1) or (2) is admissible as evidence in any proceedings under this Act.

(4) If it appears to a rights commissioner or the Labour Court in any proceedings under this Act -

(a) that an employer omitted to provide a written statement, or

(b) that a written statement is evasive or equivocal,

the rights commissioner or the Labour Court may draw any inference he or she or it consider just and equitable in the circumstances."

The applicant brought a successful challenge to the decision to terminate his services to a Rights Commissioner under s. 14 of the Act of 2003. The respondent successfully appealed that decision to the Labour Court pursuant to s. 14 of the Act of 2003. The applicant complained that the decision of the Labour Court was erroneous in law and appealed that decision pursuant to s. 15(6) of the Act of 2003.

Held by Mr. Justice Hanna in refusing the appeal that conclusions by the Appeal Commissioner or Labour Court should not be set aside unless based on a mistaken view of the law or a wrong interpretation of documents unless inferences drawn were ones that no reasonable decision maker could draw. The High Court could not hear, by way of appeal on a point of law, that which had not been in issue in the court below. Its determination had to be kept within the parameters of that body of material and evidence which had been before the Labour Court. On such evidence, the Labour Court found that the applicant had been engaged by way of a series of fixed term contracts. The High Court could not proceed to consider the appeal other than in the light of the finding of fact with regard to the applicant's employment status by the Labour Court.

Bates v. Modern Bakery Ltd. [1993] 1 I.R. 359 applied.

Reporter: P.C.

1

Mr. Justice Michael Hanna delivered on the 4th day of December, 2009

2

1. The applicant in this case is a teacher residing at 90, Larkhill Road, Whitehall, Dublin 9. He was employed by the respondent as a teacher of Engineering, Metalwork and Technical Drawing at Leaving and Junior Certificate level. The background facts are not seriously in dispute, at least in terms of what occurred over the five years during which the applicant worked for the respondent. He complains that he was forced unlawfully to leave that position on 31 st August 2007.

3

2. The applicant claims entitlement to a permanent position in the teaching post in question, placing reliance on s. 9 of the Protection of Employees (Fixed Term Work) Act 2003, (hereafter "the Act"). He brought a challenge to the decision to terminate his services to a Rights Commissioner under s. 14 of the Act. He was successful in that application. The respondent appealed the aforesaid decision of the Rights Commissioner to the Labour Court pursuant to s. 14 of the Act. The Labour Court by a decision/determination dated 9 th October, 2008 and notified subsequently to the applicant, reversed the finding of the Rights Commissioner.

4

3. The applicant complains that the decision of the Labour Court is erroneous in law and appeals that decision pursuant to s. 15(6) of the Act. That subsection provides as follows:

"A party to proceedings before the Labour Court under this section may appeal to the High Court from the determination of the Labour Court on a point of law and the determination of the High Court shall be final and conclusive."

5

4. Turning to the background facts, the applicant was employed by the respondent on a succession of fixed-term contracts commencing on 1 st September, 2002, until 31 st August, 2007, as a teacher of Engineering, Metalwork and Technical Drawing. The applicant took over the duties of a Mr. Vaughan who had departed on a career break. Notwithstanding the fact that the contract was renewed every year up to and including September 2006, only one formal, written contract was ever given to the applicant. This was the first contract and was effective from 1 st September, 2004. Its material provision was as follows:

"The Management Authority agrees to employ the Teacher as a temporary teacher of the School from the 1 st day of September 2004 to the 31 st day of August, 2005, extendable to termination at the career break of Mr Timothy Vaughan."

6

5. Subsequent to the renewal of the contract in September 2006 and during the course of the academic year, more specifically in the month of March 2007, Mr. Vaughan notified the respondent of this intention to resign from his post with effect from the commencement of the next school year i.e. September 2007. When the applicant became aware of this state of affairs, he wrote a letter dated 19 th April 2007 to the principal of the respondent seeking clarity as to his position. He received no response to this. He enquired, again, by letter of 13 th May 2007. In that letter he stated, inter alia, that in the absence of a response to his earlier letter he believed he could reasonably expect to be appointed to the vacant and permanent full-time post with effect from the following academic year.

7

6. This, too, failed to elicit a written response. However, the Principal of the respondent spoke to the applicant and advised him that he could not be appointed directly to the vacant post and that he would have to participate in a competition, in effect to apply for the job like any other applicant. The applicant asserted that he had a legally protected right but this did not alter the Principal's view.

8

7. Matters then proceeded to the advertising of the vacancy in the public press and the applicant, with some reluctance, applied. He was interviewed on 7 th August, 2007. He was, alas, unsuccessful and, on the expiry of his fixed term contract on 31 st of August, 2007, his employment with the respondent ceased and was never renewed. The position was awarded to the spouse of the Deputy Principal. During the course of the hearing before me, Mr. Horan S.C. during his concluding remarks made reference to "nepotism" in a somewhat heated moment in his eloquent presentation of the applicant's case. Such a complaint has never formed any part of the proceedings in this case to date. Accordingly, I disregard the remark and put it down to Mr. Horan's passionate commitment to his client's case.

9

8. It might be useful at this point to set out the relevant sections of the statutory framework with which we are here concerned. The Act of 2003 was enacted with a view to implementing Directive Number 1999/70/EC. That Directive concerned itself with addressing the issue...

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