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High Court of Ireland Decisions |
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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Holland -v- Athlone IT [2011] IEHC 414 (26 July 2011) URL: http://www.bailii.org/ie/cases/IEHC/2011/H414.html Cite as: [2011] IEHC 414 |
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Judgment Title: Holland -v- Athlone IT Composition of Court: Judgment by: Hogan J. Status of Judgment: Approved |
Neutral Citation Number: [2011] IEHC 414 THE HIGH COURT 2011 5598 P BETWEEN DAVID HOLLAND PLAINTIFF AND
ATHLONE INSTITUTE OF TECHNOLOGY DEFENDANT JUDGMENT of Mr. Justice Hogan delivered on the 26th day of July, 2011 1. This application for an interlocutory injunction should really be read in conjunction with my earlier judgment in McGrath v. Athlone Institute of Technology [2011] IEHC 254. Both cases raises important issues concerning the operation of the Protection of Employees (Fixed Term Work) Act 2003 (“the 2003 Act”) and the availability of effective remedies. The present case also raises what is, in essence, a new issue, namely, the enforceability in legal proceedings of the Public Service Agreement 2010/2014. This is commonly known as the Croke Park Agreement and I propose to use that familiar term in this judgment. 2. The present case arises in this way. The plaintiff, David Holland, has been employed as a lecturer in bricklaying in the Department of Trades since January, 2005. His initial employment was pursuant to a fixed term contract for one year and this was followed a further fixed term contract of two years’ duration which expired on 31st December, 2007. This was then followed by a further fixed purpose contract which commenced on 1st January, 2008. 3. Clause 4 of the contract provided that:-
5. There has been one development of importance since I first delivered judgment in McGrath on 14th June, 2011. At that time, a decision of the Labour Court was awaited in respect of the plaintiff’s entitlement to a contract of indefinite duration. At the time a Rights Commissioner had ruled against the claim, but this was overturned by the Labour Court in its decision of 17th June, 2011. In that decision the Court found that the contract of January, 2008 was not in its own term a fixed term contract. The Court found in the alternative that there were no objective grounds justifying the renewal of the contract as a fixed term contract (assuming such it was), so that any attempt to do so was rendered void by s. 9(2). The contract accordingly became a contract of indefinite duration by virtue of s. 9(3) of the 2003 Act. 6. I do not overlook the fact that the Institute has appealed this decision to this Court pursuant to s. 15(6) of the 2003 Act. I propose nevertheless to assume for present purposes that the plaintiff has a contract of indefinite duration. While fully accepting that the decision of the Labour Court is of significance, it has also to be borne in mind that I made exactly the same assumption in favour of the plaintiff in McGrath, albeit that in the latter case the Labour Court had yet to render its decision. The issue of effective remedies 8. For my part, I am bound to say that this issue is really nihil ad rem so far as the present case is concerned. The question of effective remedies was fully discussed by me in McGrath where I observed that:-
What is the effect of the Labour Court’s decision? 11. The real point here, however, is that a finding of this nature does not place such an employee in a superior position to that of an ordinary employee whose status as the holder of a contract of indefinite duration was never in doubt. It is plain from the context of the 2003 Act that the Oireachtas wished to improve the position of fixed-term workers and, perhaps, approximating that status (within recognized limits) to that of ordinary employees who held contracts of indefinite duration. That is underscored by recital 14 to the 1999 Directive which provides that the signatory parties (which include representatives of industry and the trade unions) to the framework agreement on which the Directive is based:-
The Supreme Court’s decision in Sheehy v. Ryan
21. Thus, therefore, even if the various agents of the Institute did make representations to the plaintiff of the kind alleged in respect of the building work and even if it were held that he was thereby entitled to a permanent position as a result of such representations, the Supreme Court’s decision in Sheehy v. Ryan confirms that such employment can be terminated by the employer absent an express clause to the contrary in the actual contract. In the present case, therefore, Sheehy v. Ryan, therefore, rules out any possibility of an injunction insofar as it concerns a contractual claim, not least given that no issue has been taken regarding the adequacy of the notice. 22. By a parity of reasoning, therefore, it follows that this Court has no jurisdiction to restrain the termination of employment in a case such as the present, unless the plaintiff can point to something in the 2003 Act which impliedly precludes termination for redundancy in the event that he is deemed to have a contract of indefinite duration and where the plaintiff would otherwise suffer irremediable loss. While the remedial provisions of the 2003 Act are, perhaps, somewhat obscure in places, the Rights Commissioner (and, on appeal, the Labour Court) could in principle order re-instatement in the same manner as if the employee had been unfairly dismissed for the purposes of the Unfair Dismissals Acts 1977-2005: see s. 14(2)(c) of the 2003 Act. 23. The object of this provision would appear to be to give the Labour Court the power to place the employee who had previously simply been given a fixed term contract in the same position as if he were now or, indeed, always had been on a permanent contract since the relevant date: see, e.g., the comments of Fennelly J. to this effect in Maha Lingham. But, as we have seen from Sheehy v. Ryan, so far as the common law is concerned, that in itself is no impediment to termination and there is nothing in the 2003 Act to suggest that the employment of such a re-instated employee could not be terminated in the future. If that were to happen, then such an employee must then elect as between pursuing the common law remedy of wrongful dismissal and relief under the Unfair Dismissals Acts. 24. If, therefore, the Labour Court were to decide in the plaintiff’s favour and hold that he did enjoy a contract of indefinite duration, this would simply place him in the same situation as if he were a permanent employee. But absent an express contractual stipulation to the contrary, Sheehy v. Ryan makes it plain that such an employee’s contract of employment can be terminated at will in a case such as the present one. If the fairness of that dismissal is to be adjudicated, this can only be done through the mechanism of the Unfair Dismissals Acts.” 15. It is true that departmental circular IT 15/05 provided sample contracts which strongly suggested that the Department of Education was of the view that not only that a contract of indefinite duration should be offered to any qualified lecturer with more than four years of service, but clause 4 of the sample contract further provided that:-
18. For these reasons, I cannot accept that these circulars confer any contractual rights on the plaintiff. 19. In these circumstances, it is plain that, subject to the question of the operation of the Croke Park Agreement and Circulars IT15/05 and 93/2007, the Institute is entitled to terminate the plaintiff’s contract of employment. Of course, the plaintiff may well have remedies available to him under the Unfair Dismissals Acts, but this is not a matter for this Court in these proceedings. The justiciability of the Croke Park Agreement 21. Paragraph 1.6 of the Agreement provides that:-
Was there an intention to create legal relations via the Croke Park Agreement?
25. In this regard, it may be noted that I invited both the Attorney General and the Irish Congress of Trade Unions to intervene in these proceedings should they wish to offer any views on this question. Congress declined the invitation, but its General Secretary, Mr. David Begg, nonetheless instead sent a letter to the Registrar of this Court - which was made available to the parties - which indicated that Congress considered that the Croke Park Agreement was binding merely at a political and industrial relations level and that it was not intended to create justiciable rights enforceable at law. Mr. Begg also noted that that the parties to the Croke Park Agreement have agreed mechanisms to implement the Agreement (paragraphs 1.18 to 1.22) and procedures to resolve disputes that may arise on any matter under the terms of the Agreement (paragraph 1.24 of the Agreement). 26. The Attorney submitted helpful written submissions through counsel at the suggestion of the Court. She took the view that the enforceability of the Agreement could not be determined in the abstract, but that it should not be taken as conferring legal rights on third parties such as the plaintiff. She also stressed that the Agreement was intended principally to operate at the level of a political and industrial relations commitment and not that it conferred legal rights per se. 27. For my part, I do not consider that the Agreement can be taken to have created enforceable legal rights which are justiciable in law at the hands of an individual public sector employee. The commitment given by the Government with regard to public sector redundancies in paragraph 1.6 thus applies in the sphere of political and industrial relations sphere, but not the legal sphere. The proviso to that commitment (“This commitment is subject to compliance with the terms of this Agreement and, in particular, to the agreed flexibility on redeployment being delivered…”) would seem to be at odds with the idea of an enforceable legal right, since it would be extremely difficult for a court to apply legal standards to determine whether, for example, the public sector unions had been sufficiently flexible on redeployment issues. This would seem to be a matter of judgment for either politicians or industrial relations specialists. This in itself demonstrates that the parties never intended thereby to create legal rights, or, at least, that the Agreement was not intended to be enforceable at the hands of third parties such as the plaintiff. 28. For this reason, I do not think that the plaintiff has raised a fair case with regard to the enforceability of the Agreement in legal proceedings. The Croke Park Agreement, the Circulars and Legitimate Expectations 30. Of course, the doctrine of legitimate expectations applies only in the sphere of public law. Given, however, that the Institute is an entity governed by statute, it would seem that in the light of cases such as Curran that a plaintiff can invoke this doctrine. It presupposes, however, that the circular or other similar document gave rise to an expectation and that that expectation is, in fact, a legitimate one. 31. I cannot accept that paragraph 1.6 of the Croke Park Agreement can give rise to a legitimate expectation that no person working in the public sector would be subject to redundancy. The language used is too imprecise, conditional and aspirational to permit of this. 32. It is otherwise so far as Circular 93/2007 is concerned. This clearly conveys the view of the Department of Education that those lecturers who hold a contract of indefinite duration should enjoy a permanency in their employment status akin to that of academics with full tenure. Unlike paragraph 1.6 of the Croke Park Agreement, the terms of this Circular appear to be sufficiently precise and unconditional as to give rise to the type of “unqualified assurance” of which Finlay C.J. spoke in Webb v. Ireland [1988] IR 353, 384 as giving rise to the legitimate expectation in that case. It is at least sufficient to say that the plaintiff has here raised a substantial issue. 33. For completeness, I should add that the existence of these Circulars and their possible import so far as a potential legitimate expectation is concerned was not before the Court in McGrath. Conclusions 35. The plaintiff’s prospects of success rather depend entirely on the potential application of a public law doctrine - legitimate expectations - to the circumstances of his case in the manner which I have just described. In view of this special fact, I consider that the plaintiff can establish - but on this ground alone – that, in the words of Fennelly J. in Maha Lingam v. Health Service Executive [2005] IESC 89, he has “a strong case that he is likely to succeed at the hearing of the action”. This is not to suggest that the plaintiff will in fact succeed. It may transpire, for example, that the Circulars do not apply to the plaintiff’s case or that they have been overtaken by events or that it is even inappropriate to apply the doctrine of legitimate expectations to a body such as the Institute which was the merely the recipient of the Circular. 36. Nevertheless, without offering any view on the ultimate merits, given that the plaintiff has satisfied the Maha Lingam test in this one respect, I propose to grant an interlocutory injunction restraining his dismissal pending the trial of this action. If necessary, I will give directions to ensure that this case comes to trial in very early course.
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