High Court of Ireland Decisions

Neutral citation no. [2005] IEHC 186

THE HIGH COURT

DUBLIN

2005 720 P.

BETWEEN

KARRUPIAH MAHALINGHAM

APPLICANT

V.

THE HEALTH SERVICE EXECUTIVE

RESPONDENT

NOTE OF JUDGMENT Carroll J. delivered on the 11^th day of May, 2005

The plaintiff is Indian in origin but is now an Irish citizen since 1993. He has an Irish partner and three children. He graduated in Madras in 1977 and was in India until 1986. He got his primary fellowship in February 1988 from the Royal College of Surgeons in Edinburgh and his final fellowship in February, 1990, from the Royal College of Surgeons in Ireland. Between then and 1992 he did a postgraduate middle-grade Registrar Training Programme, a year in Kilkenny, a year in Cappagh and then he was registrar in orthopaedic surgery in Beaumont. For the first half of 1993 he was locum consultant in Tullamore and in Letterkenny. He was appointed as registrar in July 1993 at Cork University Hospital and St. Mary's Orthopaedic Hospital.

In June 1994 he was appointed temporary consultant orthopaedic surgeon for two years, from 1^st July, 1994, to 30^th June, 1996. There followed a number of fixed term appointments; some six months, some three months. He was not a locum to anyone else but was appointed to reduce waiting lists. There were four permanent orthopaedic surgeons in Cork University Hospital and the Board sought a further two. In mid 2001 the local Appointments Committee advertised two posts for consultant orthopaedic surgeons. The plaintiff applied. He informed his four colleagues and he said; "all of them were hostile to me and two made racist remarks". He was told by the local Appointments Committee he would not be short-listed. He objected, and he was short-listed. He objected to one of his colleagues being on the Board and he removed himself. Another orthopaedic colleague was on the Board but he (the plaintiff) did not object.

He objected to a letter of reference by another of his colleagues and he contradicted what was said in the letter and said:-

"It was not necessary to be appointed as specialist registrar in orthopaedics in order to hold the post of consultant orthopaedic surgeon if there was a suitable period of experience."

He was interviewed for the post but was not appointed and Mr. Mark Dolan was appointed. He said his four colleagues made efforts to remove him from his post.

He applied for 18 posts as an orthopaedic surgeon at different locations around the country but was never short-listed. He claims the management failed in its duty to protect his position as a consultant orthopaedic surgeon and succumbed to pressure by his colleagues and permitted them to interfere with the terms and conditions of his employment.

In May, 2002, 8^th May, 2002, there was a letter to say that Mark Dolan would take over as orthopaedic surgeon, the position held by the plaintiff. In a letter of 30^th May, 2002, to the plaintiff from Mr. MacNamee the manager, with reference to "on-going employment" he said that under the Orthopaedic Surgery Waiting List Initiative, he was employed since 1994 and it was always the intention to structure the post as permanent. Approval was achieved in March 2001 and then the person was appointed through normal recruitment channels. It was through Comhairle na nOspidéal and following the local Appointments Committee but the plaintiff competed unsuccessfully. He said that to clarify his position they were offering him a post as temporary trauma surgeon for one year with immediate effect to 29^th May, 2003. The plaintiff claims no such post exists and he says he continued as consultant orthopaedic surgeon, but his operating time was withdrawn from St. Mary's.

In November 2002, one of his colleagues said that his appointment as temporary trauma surgeon failed to fulfil any needs in the departments.

In April 2003, another letter from his colleagues said that the issues around the plaintiff were a major source of discussion and stress. In a letter of July 2003, it said the proposal to give him a one year term contract was unacceptable.

In February 2004, there was reference to a continuing impasse. In August 2004, he was no longer rostered on call. In September 2004, he was excluded from the 'on-call rota'.

By letter dated 28^th February, 2005, his employment was terminated with effect from 31^st May, 2005. The letter said that he had been employed as a temporary trauma surgeon and the Board endeavoured to regularise the post in due course, but sanction was not obtained and the Board could not sustain the temporary appointment any longer. Accordingly he got three months notice.

The plaintiff claims that his skills were at risk if he had no appointment to practise his skills and that he is unlikely to obtain alternative employment in the public sector. He has a private practice in the Bon Secours in Tralee and Shanakill in Cork, but he says this is not enough. He claims that he is the victim of a concerted campaign motivated by racism and because he stood up for his rights in December, 2001. He claims it is detrimental to patients who have to wait or be moved to Dublin. He claims to be entitled to employment of indefinite duration and under the Protection of Employees (Fixed-Term Work) Act, 2003.

For the sixth post in Cork University Hospital the interviews were held on 30^th March, 2005. He was interviewed but he was notified that he did not get the post on 31^st March, 2005. He says the reason for termination is not alleged poor relations with his colleagues but the defendant's failure to manage the Orthopaedic Department.

Mr. Tony McNamara, who is the general manager, sets out what is necessary if a consultant's post is to be filled. They have to apply to the Department of Health for funding and sanction. Now, since 1^st January this function is vested in the Health Services Executive, the defendant and this is apparent from a letter in April 2005 from the department. But if sanction is obtained then there must be an application to Comhairle na nOspidéal and if they approve there is then an appointment by the local Appointments Committee who advertise and carry out the competitive process. He says the defendant had no role in this interview process except that one representative out of the five interviewers is appointed by them. He said that if there is an appointment of a temporary consultant for three months no approval is necessary but if it is for more than that approval of Comhairle na nOspidéal is necessary.

Between 1994 and 2002, the plaintiff was a temporary locum consultant orthopaedic surgeon. When the Board got approval for two further orthopaedic surgeons he (the plaintiff) failed to get either of them, one in 2001 and the other in this year. There is no longer a position as an orthopaedic surgeon. He was offered a position as temporary trauma surgeon and Mr. McNamara said:-

"They created a position to keep him due to his failure to get either of the other two positions."

He said that relations are not good with the other orthopaedic surgeons. However, the defendant has no complaint and holds the plaintiff in high esteem. He said they created a post in 2001 when he was not appointed and when his employment ceases on 31^st May, 2005, the post will cease to exist due to lack of sanction. They were unable to obtain sanction for another post of orthopaedic surgeon. He says poor relations is not the cause. The allegation of racism was never put into writing by the plaintiff and they could not act on a complaint by his partner. The plaintiff says he has appealed the decision of the Public Appointment Service, which is the successor in title to the local Appointments Commissions, not to place him in order of merit and not to short-list him. The plaintiff says the defendant does not say he is not entitled to an indefinite appointment.

But what are the issues? As to the relief sought in the plenary summons, the first two are interlocutory reliefs to restrain his dismissal and from interfering with his discharge of the role as orthopaedic surgeon. Then two declarations; a declaration that he is the holder of a post of consultant orthopaedic surgeon and that is he is employed on a contact of indefinite duration. And then two further interlocutory reliefs; to provide services and facilities and to restrain discrimination. Then there is a claim for damages under six headings; misrepresentation, conspiracy, breach of constitutional rights, wrongful infliction of emotional suffering and breach of contract.

The interlocutory application concerns the four interlocutory reliefs sought in the plenary summons.

The issues which the plaintiff claims arise on the application are:-

"(1) Rights under the Protection of Employees (Fixed-Term Work) Act, 2003, and that he is entitled to a contract of indefinite duration,

(2) Interference by consultants with the plaintiff's employment,
(3) Breach of implied term of mutual trust and confidence,
(4) Racial and ethnic discrimination by consultants,
(5) Damages for breach of constitutional rights."

The defendant says the employment terminated because there was no post for the plaintiff and when the additional two posts were created the plaintiff applied for both and was unsuccessful. The plaintiff sees racial prejudice as the reason he was unsuccessful in 18 applications for a consultant post. He claims he is eligible for appointment, however, it may be that better persons better qualified than him were appointed. In any event, his lack of success is not an issue in this interlocutory application.

What is at issue here is whether following his unsuccessful application for either of the two consultant orthopaedic posts, the defendant must provide a post for him in Cork University hospital. If he is entitled to an indeterminate contract the question arises; does that mean that his employment cannot be terminated? One of the cases cited Irani v. Southampton and Southwest Hampshire Health Authority [1985] Ch.D. 590, is not in point. There, the Health Authority failed to comply with the Statutory Appeal procedure and interlocutory injunction restraining implementation of termination of the contract without first exhausting the proceedings prescribed was granted.

I was also referred to Eastwood & Another .v Magnox Electric Plc 204 WLR at 322. The plaintiff relied on the case of Mahmood v. The Bank of Credit & Commerce International [1998] AC 20, which is mentioned in the judgment quoted. At 325, the House of Lords considered the implied term that an employer will not, without reasonable and proper cause conduct himself in a manner likely to destroy or seriously damage the relationship of confidence and trust between employee and employer.

As mentioned in the judgment at pg. 326:-

"The formulation of a wide ranging 'trust and confidence implied term' emerged in the late 70's and 80's so as to allow a complaint of unfair dismissal for constructive dismissal to be made before an Employment Tribunal. It was extended in the Mahmood case to allow a claim for damages at common law for breach of this term."

In O'Neill v. Canada Life, (Murphy J., Unreported, 27^th January, 1999), Mr. Justice Murphy said that the plaintiff was entitled to amend the pleadings to include a claim for damages for breach of this implied term.

If such a term was accepted as valid law that does not mean that it would prevent termination of contract. Reading on in the judgment of Lord Nichols of Birkenhead in the Eastwood case, the statutory code relating to unfair dismissal would preclude development of the common law. He said it is not for the courts to extend further a common law implied term when this would depart from the balance set by legislature.

In Phelan v. Bic (Ireland) (Employment Law Reports, pg. 208) Mr. Justice Costello said at page 211 that as a general principle the courts do not grant injunctions in cases of termination of contract on the principle that a contract of employment is a contract of personal services but this is subject to qualification in a number of cases and the court has granted interlocutory relief where it was in the interest of justice to do so.

Is this a case where the general principle should be qualified in favour of granting an injunction to prevent termination? All the interlocutory relief claimed depends on whether the defendant should be prevented from terminating the plaintiff's employment.

The plaintiff's last appointment ran out on 29^th May, 2004 and he has continued to be employed. The 14^th July, 2003, was the coming into operation of the 2003 Act. I am prepared to assume that the plaintiff has an indeterminate contract, but this does not prevent termination. He has been given three months notice and the question of whether it is reasonable is the question to be determined at the trial, and if not reasonable, will attract damages. If there is an implied term of mutual trust and confidence in Irish law, and assuming that there is, this does not extend to ousting the statutory scheme under the Unfair Dismissals Acts. If the termination of the plaintiff's employment is wrongful, his remedy is before an Employment Appeals Tribunal and not at common law. If there was an attempt at interference by the consultants with the plaintiff's employment and if there was racial and ethnic discrimination by the consultants, it was not by the defendant. These are issues to be dealt with at the trial and are not issues which would prevent the defendant from terminating the plaintiff's employment.

The last issue relates to damages which is not relevant to an injunction.

I am of opinion that the general principle of not granting an interlocutory injunction in the case of termination of employment applies. The issues raised by the plaintiff in this interlocutory appeal are not such that the requirements of justice would constrain the court at its discretion to prevent termination on an interlocutory basis. The plaintiff has a remedy in damages at common law. Alternatively, he can apply under the statutory scheme to the Employment Tribunal for relief. In an appropriate case the Tribunal can order reinstatement, but it is not for this court to interfere with the legislature's intention to provide a statutory remedy under the Unfair Dismissals Acts.

I refuse the injunction to restrain the defendant from terminating the plaintiff's employment and as all other interlocutory reliefs are consequential on the granting of that, they are also refused.

Approved: Carroll J.