High Court of Ireland Decisions

Judgment Title: Electricity Supply Board -v- Minister for Social Community & Family Affairs & Ors

Neutral Citation: [2006]IEHC 59


High Court Record Number: 2002 113 SP & 2002 187 SP

Date of Delivery: 21/02/2006

Court: High Court

“Since this is an appeal on a point of law, it is not a rehearing. Accordingly, the facts as found by the Labour Court are binding on this court where those facts are supported by credible evidence and this court should be slow to disregard the inferences drawn by the Labour Court from its findings of fact unless the inferences drawn are wholly unwarranted on the findings of fact made. The role of this court has been explained by Kenny J. in the Supreme Court in Mara (Insp. of Taxes) v. Hummingbird [1982] I.L.R.M. 421 at
p. 426 in a case stated where the Income Tax Appeal Commissioners found, as a fact, that Hummingbird purchased premises in Baggot Street, Dublin, as an investment and so its sale was not in the course of trade.

At page 426 Kenny J. said:-

“A case stated consists in part of findings on questions of primary fact, e.g. with what intention did the taxpayer purchase the Baggot Street premises. These findings on primary facts should not be set aside by the courts unless there was no evidence whatever to support them. The commissioner then goes on in the case stated to give his conclusion or inferences from these primary facts. These are mixed questions of fact and law and the court should approach these in a different way. If they are based on the interpretation of documents, the court should reverse them if they are incorrect for it is in as good a position to determine the meaning of documents as is the commissioner. If the conclusions from the primary facts are ones which no reasonable commissioner could draw, the court should set aside his findings on the ground that he must be assumed to have misdirected himself as to the law or made a mistake in reasoning. Finally, if his conclusions show that he has adopted a wrong view of the law, they should be set aside. If however they are not based on a mistaken view of the law or a wrong interpretation of documents, they should not be set aside unless the inferences which he made from the primary facts were ones that no reasonable commissioner could draw. The ways of conducting business have become very complex and the answer to the question whether a transaction was an adventure in the nature of the trade nearly always depends on the importance which the judge or commissioner attaches to some facts. He will have evidence some of which supports the conclusion that the transaction under investigation was an adventure in the nature of trade and he will have some which points to the opposite conclusion. These are essentially matters of degree and his conclusions should not be disturbed (even if the court does not agree with them, for we are not retrying the case) unless they are such that a reasonable commissioner could not draw them or they are based on a mistaken view of the law.”

“…I believe it would be desirable to take this opportunity of expressing the view that the courts should be slow to interfere with the decisions of expert administrative tribunals. Where conclusions are based upon an identifiable error of law or an unsustainable finding of fact by a tribunal such conclusions must be corrected. Otherwise it should be recognised that tribunals which have been given statutory tasks to perform and exercise their functions, as is now usually the case, with a high degree of expertise and provide coherent and balanced judgments on the evidence and arguments heard by them it should not be necessary for the courts to review their decisions by way of appeal or judicial review.”

“In the present case, both the appeals officer and the learned High Court Judge were of the view that the fact that Ms. Mahon was described in the written agreement as being employed as an “independent contractor” was not conclusive. It is accepted that they were correct in so holding. It is correct to say that the appeals officer appears to have taken the view that the importance of the terms of the written contract was somewhat diminished by the fact that Ms. Mahon wanted the job and accordingly had no option but to sign the contract. However, it is also clear from his report that he considered in some detail the actual terms of the written contract and also had regard to the manner in which the work was done by Ms. Mahon.
If the appeals officer had erred in law in his construction of the written contract, then, in accordance with the principles explained by Kenny J., his decision would be liable to be set aside by the High Court. In the present case, however, it has not been shown that the appeals officer in any way misconstrued the written contract: he was, on the contrary, entirely correct in holding that he should not confine his consideration to what was contained in the written contract, but should have regard to all the circumstances of Ms. Mahon’s employment. Equally, the High Court Judge was correct in the view she took that she should not interfere with his findings in this regard unless they were incapable of being supported by the facts or were based on an erroneous view of the law.”

“However, as later authorities demonstrate, that test does not always provide satisfactory guidance. In Cassidy v. Ministry of Health [1951] 2 K.B. 343, it was pointed out that, although the master of a ship is clearly employed under a contract of service, the owners are not entitled to tell him how he should navigate the vessel. Conversely, the fact that one party reserves the right to exercise full control over the method of doing the work may be consistent with the other party being in an independent contractor: see Queensland Stations Property Ltd. v. Federal Commissioner of Taxation [1945] 70 C.L.R. 539.”

“It is, accordingly, clear that, while each case must be determined in the light of its particular facts and circumstances, in general a person will be regarded as providing his or her services under a contract of service and not as an independent contractor where he or she is performing those services for another person and not for himself or herself. The degree of control exercised over how the work is to be performed, although a factor to be taken into account, is not decisive. The inference that the person is engaged in business on his or her own account can be more readily drawn where he or she provides the necessary premises or equipment or some other form of investment, where he or she employs others to assist in the business and where the profit which he or she derives from the business is dependent on the efficiency with which it is conducted by him or her.”

“Any person who is dissatisfied with—
(a) the decision of an appeals officer, or
(b) the revised decision of the Chief Appeals Officer,
on any question, other than a question to which section 265 applies, may appeal that decision or revised decision, as the case may be, to the High Court on any question of law.”

“if the applicant fails to establish that a decision of the Labour Court was irrational in the sense that there was no relevant material upon which it could ground such a decision or that such material could not properly be relied on or that the material and evidence offered by the appellant so conclusively and overwhelmingly trumped such case as was offered by the notice party to such an extent as to render a decision in its favour perverse then, in such circumstances, this aspect of the applicant’s case would have to fail….The question is whether or not I am satisfied that there was no or no sufficient material or evidence before the Labour Court which would enable it to come to the conclusion which it did.”

“In the present case, where there is no reason to think that the clause is a sham, or that it is not a genuine statement of the parties’ intentions, it must be given its proper weight in relation to other clauses in the agreement.”

“If the appeals officer had erred in law in his construction of the written contract, then, in accordance with the principles explained by Kenny J., his decision would be liable to be set aside by the High Court.”

“[T]he wording of a written contract still remains of great importance. It can, however, emerge in evidence that in practice the working arrangements between the parties are consistent only with a different kind of contract or at least are inconsistent with the expressed categorisation of the contract.”

“In the Ready Mix Concrete case, McKenna J. regarded the freedom of the owner/driver to choose a competent driver to take his place at other times as a significant feature leading to the conclusion that the contract in that case was a contract for services and not a contract of service.”

“[I]n my opinion these features are inconsistent with the contract being one of service - they all point rather to its being one for services, in particular the absence of any requirement to perform the work personally and the obligation to provide and furnish the premises in which the work is to be performed. Both these features suggest that the respondent is an independent contractor.”

“the fact remains that it is not normal to find in a contract of service that the employee can hire assistants to perform the work which he or she is employed to do.”