An Chúirt Uachtarach
The Supreme Court
Record Number: 2009/1132SP
Appeal Number: 86/2011
John Barry, Conor O’Brien, Mary O’Connor, Michael Spratt and Ciarán Dolan
The Minister for Agriculture and Food
1. I too would reverse the High Court judgment and order. I adopt the narrative of events set out in Charleton J.’s judgment. I agree with the order which both he and Laffoy J. propose.
2. The Employment Appeals Tribunal erred in concluding that an earlier judgment, delivered in this case by Edwards J. in the High Court, directed the Tribunal to find, as a matter of fact and law, that the appellants were self-employed, and had never been employed by the Minister.
3. In proceeding on this misconception, the Tribunal acted outside the scope of its statutory power as outlined in Charleton J.’s judgment.
4. It was for the Employment Appeals Tribunal itself to determine, on the facts, whether or not an employment relationship existed between the parties. It follows, therefore, that the Tribunal erred in concluding that Edward J’s High Court ruling required it to make a finding in a particular way. In so concluding, it fell into error. It also follows that Hedigan J. erred and his judgment should be set aside. Thus, the matter should be remitted to the Employment Appeals Tribunal to be determined in accordance with its jurisdiction. That this course is necessary is profoundly unfortunate. This case has had a very long duration. It is to be hoped that, ultimately, the matter can achieve finality on remittal.
Management of the Matter As Remitted
(b) That the parties prepare written submissions of no more than fifteen A4 pages. These should address, in sequence, the agreed issues as identified in the issue paper. The sequencing and timing of these submissions are a matter for the Tribunal.
(c) The Tribunal may, thereafter, apportion such time, as may appear to it appropriate, for oral submissions. I note the parties accept that the evidence which has already been heard, may now be accepted by the Tribunal on foot of the transcript. It will be necessary to refer to those transcripts to assist the Tribunal panel now charged with finally concluding the matter.
(d) In the event that the parties disagree in relation to the issues, I would suggest that the Tribunal itself should receive a proposed issue paper from both sides, and should thereafter prepare its own issue paper, identifying the issues which, in turn, should be the subject of written submissions in the sequence therein set out.
Judgment of Ms. Justice Laffoy delivered the 16th day of July, 2015
First determination of the Tribunal
First order of the High Court
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:
(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]”
Second determination of the Tribunal
7. When one analyses the decision in the second determination, the following features emerge:
(i) whether the Applicants were “engaged under a contract of or a contract for services”, and
(ii) whether the Applicants were “employees or contractors of the [Minister]”.
(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.
The second order of the High Court
(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.
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
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.
1. The applicants/appellants are all veterinary surgeons. Each worked over several years in the Galtee Meats Plant in Mitchelstown in County Cork as temporary veterinary inspectors for the respondent Minister. This work involves inspecting animals, in this case it was apparently always pigs, prior to slaughter, to ensure that they are disease free and, upon slaughter, to examine the carcass, with particular attention to the internal organs, for lesions or other signs of illness. This work is standardised throughout the European Union pursuant to legislation, the purpose of which is human health. The plant shut down in October 2004. The vets were informed by the Minister that no more work was available to them. Of the 5 vets, one had worked almost fulltime in the plant, doing the ordinary maximum 4 hour shift on any working days, while the other vets also had a private practice outside those hours. They all claim to have been employees of the Minister. That is the core assertion in their case. It is denied: the Minister argues that, on the arrangements between the Minister and the vets, the vets are self-employed: this despite their shift not being subject to a VAT charge by the vets and despite the Minister apparently deducting the pay related social insurance and pay as you earn income tax, and accounting for same. On their services being no longer called on, the vets claimed statutory entitlements in respect of employees, effectively claiming that they were made redundant. That issue of statutory rights to employment benefits is one within the jurisdiction of the Employment Appeals Tribunal. Pursuant to the statutory appeal mechanism whereby this matter came before the High Court, neither that court nor this Court on appeal is entitled to decide that issue. That point is crucial to this appeal.
3. Entitlements were claimed by the vets under the Redundancy Payments Acts 1967-2003 and the Minimum Notice and Terms of Employment Acts 1973-2001. On the Employment Appeals Tribunal hearing this matter first, over four days in June and October, 2006, a preliminary question was self-set for determination: “Whether the temporary veterinary inspectors were employed under a contract of service or a contract for service by the Department of Agriculture and Food.” That led to a detailed analysis of the precise circumstances whereby the vets were first engaged in the meat plant in Mitchelstown and the individual work history of each vet. In its ruling of 12th of March, 2007, the Employment Appeals Tribunal considered that a proper legal analysis required a judicial tribunal to look “at the contract as a whole” and to ask “is the person in business on his or her own account?” The Employment Appeals Tribunal in its first assessment decided thus:
9. It is not before this Court on this appeal and, further, it was not a matter whereby the High Court could have made a decision for itself as to whether these memoranda coupled with the manner of the operation of the working conditions constituted employment of the vets, as opposed to the engagement of self-employed contractors. It is correct to note, however, as was noted by Edwards J, that there is no universal test whereby it may be said that if a particular indication is met or not met that a person is employed or not. Furthermore, it may need to be factored into any such analysis that it can be that a course of dealings over years may turn from what was initially the engagement of self-employed contractor to do work on a particular basis into an employment relationship. No direction or suggestion is hereby given. As follows from the analysis set forth below, it is for the Employment Appeals Tribunal to make that decision on analysis of the facts individual to each case, and in terms of any entitlement that may result for redundancy payments or minimum notice of the termination of employment to find a point in time, if such exists, whereby a self-employed status turned into an employment relationship, should there be facts whereby that decision might be made.
12. It may be possible to set up tribunals in relation to employment or immigration or any other specialist sphere which are fully judicial in nature. It is also, perhaps, possible to have appeals from quasi-judicial bodies determined by a court rehearing under statute. The determination of such tribunals or courts exercising that kind of appeal might, under such legislation, be such that a re-analysis of the relevant factors afresh or a rehearing of the evidence or a reconsideration of the materials entitles the tribunal to give a fresh appraisal of the facts which is final and determinative. That model has been adopted in the neighbouring kingdom in respect, for instance, of immigration disputes. No comment is made as to whether that model is consistent with constitutional principles in this jurisdiction. It is not, for good or bad, the model that is adopted under this legislation. It is not the jurisdiction which has been given to the High Court in exercising an appeal on a point of law from the Employment Appeals Tribunal.
13. The limited nature of the jurisdiction exercised by the High Court in such circumstances is perhaps more obvious by analogy with judicial review under Order 84 of the Rules of the Superior Courts. There, the entitlement of the High Court in exercising its jurisdiction over lower courts and over tribunals and administrative officials is to rule as to whether the procedure was correct and consistent with the relevant elements of fairness, operated within jurisdiction, in terms of fact did not fly in the face of fundamental reason and common sense and, in terms of the record, was correct. The High Court on judicial review has no entitlement to substitute its own view in terms of fact for that of any statutory body or lower court which is under review despite making a finding that, for instance, an error of law was so important as to amount to an excess of jurisdiction. More fundamentally, it is not the function of the High Court on judicial review to exercise any statutory jurisdiction which by statute is exclusively given to a tribunal. Thus, it is not possible for the High Court to grant planning permission, nor is it possible for the High Court to grant a mining licence or a foreshore licence or an exploration licence upon finding on judicial review that any particular administrative or quasi-judicial decision in relation to such matters cannot stand. Thus, for instance, while it may be within the competence of the High Court to grant a declaration as a matter of law whether a resident of Ireland is liable to pay income tax, it is not for the High Court to exercise in place of the Revenue Commissioners the machinery whereby a taxpayer is assessed to a particular amount of tax for a particular year; see Deighan v Hearne  IR 367.
14. Similarly, when an appeal is taken pursuant to statute which allows resort to a court simply on a point of law, the High Court is entitled and obliged to state what point or principle of law was in error where a statement of law has been made by a lower court or by a quasi-judicial tribunal. There may be some circumstances where the statement of law effectively determines the point under appeal: but even in such a rare case it is a matter for the parties to return to the tribunal with the ruling of the High Court and it is for that tribunal to apply the ruling of law to the facts as found exclusively within the tribunal’s jurisdiction in order to reach a determination. There are no circumstances under which the tribunal may declare that its jurisdiction is spent since, as a creature of statute, the sole and exclusive entitlement to exercise that jurisdiction, which was expressly created for it alone, rests with the tribunal.
16. It is also reasonable to comment in this context that it is far too common for complex issues of law to overwhelm or occlude the clear questions that are necessary to be stated for the decision of any tribunal, or the decision of any court, as to what result should be arrived at. In the rehearing of this matter by the Employment Appeals Tribunal, the courtesy extended to courts whereby it is indicated as to what issues, cast as simple and ordinary questions, need to be decided for the result to go one way or the other should be adopted. This used to be the function of pleadings but this purpose of clarification through pleading has now largely been lost. As a matter of practice, it is for the advocate pursuing a case to put before a tribunal or court such straightforward questions for its determination as will enable a decision to be made.
17. In the result, the ruling Hedigan J in the High Court must be overturned. The case of whether the vets were employed by the respondent Minister or were, instead, self-employed persons doing shifts at the Mitchelstown meat plant is a matter of fact for the Employment Appeals Tribunal on a rehearing of the matter. This judgment also concurs with the separate judgment of Laffoy J.