Judgment
Title: | Barry & ors -v- Minister for Agriculture & Food |
Neutral Citation: | [2015] IESC 63 |
Supreme Court Record Number: | 86/11 |
High Court Record Number: | 2009 1132 SP |
Date of Delivery: | 07/16/2015 |
Court: | Supreme Court |
Composition of Court: | MacMenamin J., Laffoy J., Charleton J. |
Judgment by: | Laffoy J. |
Status: | Approved |
Result: | Allow And Set Aside |
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| Judgments by | Link to Judgment | Concurring | MacMenamin J. | | Laffoy J., Charleton J. | Laffoy J. | | MacMenamin J., Charleton J. | Charleton J. | | MacMenamin J., Laffoy J. | |
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THE SUPREME COURT[Appeal No. 86/2011]
MacMenamin J.
Laffoy J.
Charleton J.
IN THE MATTER OF THE REDUNDANCY PAYMENTS ACT 1967 – 2003
AND
IN THE MATTER OF THE MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS 1973 – 2001
JOHN BARRY, CONOR O’BRIEN, MARY O’CONNOR, MICHAEL SPRATT AND CIARAN DOLAN
APPELLANTS
AND
THE MINISTER FOR AGRICULTURE AND FOOD
RESPONDENT
Judgment of Ms. Justice Laffoy delivered the 16th day of July, 2015
Introduction
1. The background and the long drawn-out history of the endeavours of the appellants (the Applicants) to establish entitlement to payments under the Redundancy Payments Acts 1967 – 2003 (the Redundancy Payments Acts) and the Minimum Notice and Terms of Employment Acts 1973 – 2001 (the Minimum Notice Acts) following the termination of their retainer, to use a neutral word, as temporary veterinary inspectors at the Galtee Meats plant in Mitchelstown, County Cork on the closure of that plant in October 2004 is set out in the judgment to be delivered by Charleton J. I agree with the finding of Charleton J. that the decision of the High Court which is the subject of this appeal on a question of law, the judgment and order of the High Court (Hedigan J.) made on 9th February, 2011 (the second High Court order), must be set aside. I understood counsel on both sides to be ad idem that the consequence of such a finding would be that the matter would have to be remitted to the Employment Appeals Tribunal (the Tribunal). I am satisfied that that is what must happen. The purpose of this judgment is not to re-traverse ground which is addressed in the judgment of Charleton J. Rather it is to highlight certain matters which may assist the Tribunal in understanding why its substantial efforts to date have not brought the matter to a conclusion and what its duty is going forward.
First determination of the Tribunal
2. The issue between the Applicants and the respondent (the Minister), who had retained the Applicants as temporary veterinary inspectors, from the outset has been whether the Applicants were employees of the Minister under a contract of service, so as to entitle them to the statutory payments they have claimed. When the matter was first before the Tribunal in 2006 it was decided that the Tribunal would determine, as a preliminary point, whether the Applicants “were employed under a contract of service or a contract for service” by the Minister. Having heard the matter over four days in June and October 2006, the Tribunal gave its determination on 12th March, 2007 (the first determination). In the first determination, the Tribunal comprehensively outlined the Applicants’ case and the Minister’s case and the legal submissions made by counsel for both parties. It then gave a reasoned determination which extended over five pages. The outcome was that the Tribunal determined by a majority, one member of the three member Tribunal dissenting, that “the five [Applicants] were employed by the [Minister], under a contract of service, and therefore they were employees”.
First order of the High Court
3. The Minister appealed against the first determination on a question of law to the High Court pursuant to the Redundancy Payments Acts and the Minimum Terms Acts. The appeal, in which the Applicants were respondents, was heard in the High Court by Edwards J., who gave judgment on 7th July, 2008. The judgment is reported as Minister for Agriculture v. Barry [2009] 1 I.R. 215. The conclusion of the High Court Judge is quoted in the judgment of Charleton J.
4. The order of the High Court was made on 22nd July, 2008 (the first High Court order). Its curial part contained eight declarations in the following terms:
“The Court doth declare that
(i) there was insufficient evidence before the [Tribunal] on which the Tribunal could properly find that the [Applicants] were employed by the [Minister] under a contract of service
(ii) the [Tribunal] erred in law in finding that mutuality of obligation was present in an implied contract between the [Minister] and the [Applicants]
(iii) the [Tribunal] erred in law in finding that there was mutuality of obligation based on an obligation on the part of the [Applicants] alone with no obligation on the part of the [Minister]
(iv) the [Tribunal] erred in law in failing to consider evidence that the [Minister] was not obliged to provide work to the [Applicants] and that the [Applicants] did not have an expectation of a particular level of work
(v) the [Tribunal] erred in law in attaching no weight to the evidence that the [Applicants] were entitled to refuse up to 16% of shifts before action would be taken by the [Minister]
(vi) the [Tribunal] incorrectly distinguished relevant and binding authorities from the facts in the case before it and failed to have regard to same
(vii) the [Tribunal] erred in law in determining that the [Applicants] were employed under a contract of service with the [Minister]
(viii) the claim of the [Applicants] pursuant to [the Redundancy Payments Acts] and [the Minimum Notice Acts] be returned to the [Tribunal]”
5. There was no appeal to this Court against the first High Court order.
Second determination of the Tribunal
6. After the matter was remitted to it by the first High Court order, the Tribunal conducted a further hearing on 8th January, 2009 and heard evidence from the witnesses referred to in the judgment of Charleton J.. It subsequently gave its determination on 31st July, 2009 (the second determination). In the second determination it was recorded that “there was no final objection that further evidence be heard” at the hearing on 8th January, 2009. The Tribunal then recorded the additional evidence which was adduced on behalf of the Applicants and on behalf of the Minister. The decision of the Tribunal in the second determination is quoted in part in the judgment of Charleton J.
7. When one analyses the decision in the second determination, the following features emerge:
The answer to that fundamental question would determine whether the Tribunal had jurisdiction to hear the substantive matter, it stated.
(b) Its findings as to “mutuality of obligation” in the first determination having been declared to be erroneous in the first High Court order, as recorded at para. 4 above, the Tribunal noted that the Redundancy Payments Acts and the Minimum Notice Acts make no reference to “the disputed imported [phrase] of mutuality of obligation”, but stated that it was mindful that it must deal with that issue. It set out to define mutuality of obligation, stating that it can be defined as that the work provider is obliged to provide employment and there is a corresponding obligation on the worker to accept and carry out the work provided. Setting out its decision, following reference to the renewed hearing at which the additional evidence was adduced in January 2009 and its consideration of the written submissions it had obtained from the parties, the Tribunal stated that it still maintained –
“. . . on the balance of probability, by a majority decision that the [Applicants] and the [Minister] were engaged in a working relationship that carried sufficient mutuality of obligation to allow them to be classified as possible employees”.
(c) Having made that finding, the Tribunal stated that the finding allowed it to “consider the various other tests associated with determining whether they were employed under a contract of or for services”. It must be assumed that that conclusion was derived from the characterisation of Edwards J. in his judgment (at para. 47) of the “mutuality of obligation test” as “an important filter”. In any event, the Tribunal then stated:
“In that consideration their determination from March 2007 applies”.
(d) However, the Tribunal went on to reverse its determination of 12th March, 2007, that is to say, its first determination, on the basis of its interpretation of the judgment of Edwards J. and the first High Court order, outlining its understanding in the following passage:
“The judge on that case issued eight declarations concluding that the case be returned to the Tribunal. Two contrasting interpretations emerged from the totality of those declarations. One was that the judge was in effect instructing the Tribunal to change its original determination due to its many errors in law in reaching that determination. Another interpretation was that this ruling was silent on the Tribunal’s original determination but critical of its reasoning and flawed approach in law as to how it reached that decision”.
It was then stated that, notwithstanding the majority view expressed earlier, which I understand to be a reference to the decision that the “determination from March 2007 applies”, it was stated that the Tribunal felt bound to accept the former interpretation, that is to say, that it was instructed to change its original determination.
(e) On that basis, the Tribunal reversed its first determination of 12th March, 2007 and found that the Applicants were engaged under a contract for services with the Minister and that it had no jurisdiction to proceed with the hearing of the substantive issues under the Redundancy Payments Acts and the Minimum Notice Acts.
8. It is absolutely clear from the foregoing outline that the Tribunal misunderstood the effect of the declarations embodied in the first High Court order. Although very specific, in my view, those declarations did not amount to a direction by the High Court to the Tribunal as to the decision it should make when the matter was remitted to it. I agree with the view expressed by Charleton J. that it would not have been open to the High Court on the first appeal to give such a direction. Indeed, on this appeal, there was consensus between counsel on both sides on that point.
The second order of the High Court
9. That leads to the second appeal on a question of law from the Tribunal to the High Court, in which the Applicants were appellants and the Minister was respondent. It is quite clear from the summary of the reliefs sought by the Applicants on that appeal against the second determination of the Tribunal, as set out in paragraph 3 of the judgment of Hedigan J. delivered on 9th February, 2011, that at the core of the appeal was the Applicants’ contention that the Tribunal erred in law in acting on its misunderstanding of the first High Court order in –
(a) believing that it had been directed by the High Court to change its original determination due to its many errors in law in reaching that original determination, and
(b) failing to consider that, having heard additional evidence, it was entitled to apply the legal principles enunciated by the High Court in the first judgment and to make its own determination having regard to the totality of the evidence.
Unfortunately, on the second appeal, Hedigan J. did not identify or address that as the core issue, but rather entered on an assessment of the additional evidence, against the background of the declarations in the first High Court order, in particular, that at the first hearing before the Tribunal there was insufficient evidence on the basis of which a finding could be properly made that the Applicants were employed by the Minister under a contract of service. On the basis of his assessment of the evidence, Hedigan J. concluded (at para. 7.7) that no reasonable Tribunal would be entitled to conclude that the Applicants were employed other than under a contract for service. On that basis, he disallowed the appeal without addressing the real complaint of the Applicants, stating that it was not necessary for him “to consider the issue of express directions to the Tribunal as to the correct application of the law to the facts of this case”.
10. Having regard to the foregoing, the Applicants have unquestionably established that the second High Court order should be set aside on the grounds that it was based on an erroneous failure by Hedigan J. to address the core issue on the appeal, namely, that the Tribunal, in making the second determination had not performed its statutory duty, in that it had wrongly acted on a misinterpretation of the first High Court order in concluding that it had been instructed to reverse its first determination, when it should have made a determination on the basis of the evidence then before it and the proper application of the relevant legal principles.
Remittal to the Tribunal
11. On the remittal from this Court to it, the function of the Tribunal will be to determine whether the Applicants’ claim to be entitled to payments under the Redundancy Payments Acts and the Minimum Notice Acts have been established in accordance with the applicable statutory criteria. That will involve, inter alia, determining whether each of the Applicants was an employee of the Minister in accordance with the application of the relevant legal principles to the evidence before it.
12. I fully agree with the view expressed by Edwards J. in his judgment (at para. 42) that the work relationship between each of the Applicants and the Minister “was a very unusual one, and one which it is not easy to classify”. Notwithstanding that, in making the determination which it will be under a duty to make, the Tribunal will have to assess the evidence as to the work relationship of the Applicants with the Minister adduced by the parties before it by reference to the legal principles which have been established by the courts over the years in order to make a finding as to whether or not each of the Applicants was an employee of the Minister. No doubt the Tribunal will be assisted in that task by the guidance given in the judgment of Edwards J. However, it is for the Tribunal to determine on the basis of the evidence before it as to whether, in accordance with the established principles, each of the Applicants was or was not an employee of the Minister prior to October 2004.