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Cite as: [2015] IEHC 59
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Judgment
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Neutral Citation: [2015] IEHC 59 THE HIGH COURT JUDICIAL REVIEW [2013 No. 805 JR] BETWEEN PASCAL HOSFORD APPLICANT AND
THE MINISTER FOR SOCIAL PROTECTION RESPONDENT JUDGMENT of Mr. Justice Seamus Noonan delivered the 6th day of February, 2015 Introduction Background Facts
4. It would appear that not long after the applicant commenced in the Scope Section, an issue arose as to the appropriate classification of individuals working in companies of which they were directors and shareholders and in particular, whether in certain circumstances such individuals might be classified as self employed for PRSI purposes depending on the nature of their shareholding in the company and other factors. It is fair to say that the applicant developed a very definite and perhaps even passionate view of the law in this regard which he considered should be applied without regard to any policy considerations. The applicant alleges that the Department operated a policy in relation to this issue which was unlawful and he expressed that view on numerous occasions to his superiors and other parties both inside and outside the Department. 5. It is clear that this issue became a source of considerable conflict and friction between the applicant and his superiors within the Department. In November 2012, the applicant threatened to apply to the High Court for a judicial review of what he saw as its unlawful policies and seems to have viewed himself as a whistleblower acting in the public interest. He also complained unsuccessfully to the Ombudsman. He disclosed what the Department viewed as confidential material and privileged legal advice to outside parties including the Ombudsman, the Revenue Commissioners and his own lawyers. 6. In further correspondence later that month, he indicated to a personnel officer in the Department that he intended making what he described as "protected disclosures" under draft whistleblower legislation to a range of bodies including the High Court, the Ombudsman, the Comptroller and Auditor General, Dail Committees and perhaps the troika. Considerable time and effort appears to have been devoted within the Department to dealing with lengthy correspondence from the applicant. Departmental meetings were frequently disrupted where the applicant was involved and he alleges that he was wrongfully expelled from such meetings. Indeed it would appear that the entire decision making process of Scope Section in relation to working directors had to be suspended for a lengthy period. 7. In a replying affidavit filed on behalf of the respondent, Mary Kennedy, the principal officer in Scope Section, sets out a very detailed account of the difficulties encountered with the applicant from the commencement of his assignment to Scope Section. Ms. Kennedy says that the applicant declined on many occasions to follow the instructions of his line managers and not just in relation to the working directors issue and she gives a number of examples. The Social Welfare and Pensions (Miscellaneous Provisions) Act 2013 came into effect on the 28th June, 2013 and one of its effects was that persons who owned or controlled 50% or more of the shareholding in companies in which they were employed and of which they were directors were to be regarded as self-employed for PRSI purposes. 8. Where such persons held less than a 50% shareholding, Department policy determined that they should be assessed on a case by case basis in accordance with criteria determined by the Department and embodied in a code of practice. The applicant appears to have taken it upon himself to decide that he would not implement this policy as he considered it not to be in accordance with law. 9. On the 6th September, 2013, Ms. Kennedy met with the assistant secretary of the Department responsible for Scope Section, Ms. Ryan, who requested that human resources reassign the applicant in the interests of the smooth running of Scope Section having regard to the difficulties that were being encountered with him. On the 23rd September, 2013, Ms. Kennedy and Scope Section assistant principal, Ms. O'Donnell met with the applicant to advise him that he was being reassigned to a new initiative regarding human resources record management called PeoplePoint. 10. The applicant in his affidavit says that he was told at the meeting that he was a good worker and had initiated a number of improvements in the Scope Section. He says he was told that he was being reassigned due to his difficulty in accepting management decisions and carrying out management instructions as directed. The applicant exhibits Ms. O'Donnell's minute of the meeting as evidence of what occurred. In it, Ms. O'Donnell gives examples of improvements made by the applicant in the section. She felt however that there were issues with regard to accepting management decisions and carrying out her instructions as directed. She explained that she needed to be able to rely on her higher executive officer to carry out her instruction and that she felt she was unable to rely on him to do so. Ms O'Donnell explained to the applicant that she found many of their conversations challenging because he was very opinionated and had difficulty listening to other people's point of view. This was having a draining effect on her ability to get changes implemented. She gave a number of examples. 11. Ms. Kennedy avers that the PeoplePoint project is a shared human resources facility for the entire civil service and is a very important high profile project for the Department. The applicant took issue with this description and described his new assignment as "being sent to Siberia." 12. It is common case that the applicant's pay and conditions and promotional prospects are entirely unaffected by his reassignment. No disciplinary action has been taken against him and the respondent says his new role is not a demotion and if anything enhances his experience and thus promotional prospects. The applicant disagrees. Ms. O'Donnell says that since the applicant left Scope Section, there has been a perceptible and significant improvement in the level of engagement by the officers in that section. 13. In fact, in June 2014, the applicant was transferred again to what he himself describes as a key position in the Facilities Management-Finance Unit. This unit is responsible for managing the Department's property portfolio across the State and has an annual budget of some €50m. He makes no complaint in the within proceedings about this reassignment and has not sought to amend his grounds to do so. Submissions 15. Mr. Humphreys SC, on behalf of the respondent, submits that the respondent has the right to transfer officers within her department at her absolute discretion. This right is statutory and is further acknowledged in the applicant's contract as noted above. The applicant accepts this to be so. Such transfer is a purely administrative action which does not engage any rights the applicant enjoys under the Constitution or European Convention on Human Rights. He argues that in view of the seriousness of the applicant's allegations, he carries a heavy burden of proving them and they are unsupported. The onus of proof remains on the applicant and where averments are made and contradicted on affidavit, that burden remains undischarged in the absence of cross-examination. He accepts that a transfer could in theory be challenged if the evidence established that it was capricious or for an improperly punitive purpose but nothing in the applicant's case establishes that. 16. He contends further that the merits of the applicant's transfer are not a matter for the court, which cannot act as an appellate tribunal from the decision of the respondent. Even if it were the case that the transfer had an impermissible objective, which was entirely refuted, the applicant must still establish that this was the primary and dominant purpose of the transfer. 17. Quite apart from the foregoing, the transfer complained of had now expired, there was no complaint about the applicant's current position and his claim was therefore moot. There was no evidence of the applicant having suffered any financial or other loss. He said that the applicant's allegation that his reputation and prospects were somehow damaged was entirely undermined by the fact of his subsequent transfer to an important post which the applicant himself describes as "key". 18. Mr. Humphreys submitted that the reality of the applicant’s claim was that he was seeking to use his transfer as a platform to ventilate his views on the law relating to so called proprietary directors and attempt to cause what he perceives to be embarrassment to the respondent as he has been threatening since 2012. This is a clear abuse of process. Analysis 20. In the present case, the applicant makes a number of very serious allegations against the respondent which are notably unsupported by any evidence other than his own opinion. His views in that regard are entirely contradicted by the respondent’s evidence and the applicant has not sought to cross-examine any of the deponents. There are significant conflicts in the evidence on both sides which clearly cannot be resolved by the court in the absence of cross-examination. One such conflict arises in relation to the central issue in the case, namely, the respondent’s reason for transferring the applicant. The applicant has advanced his belief as to the real reason. 21. The respondent’s senior officers on the other hand have sworn to a number of reasons for the transfer which taken at face value are entirely valid and legitimate reasons. The onus of proving his case rests on the applicant and it seems to me that he has not discharged the onus of establishing any factual basis upon which the court could interfere with the respondent’s decision herein. 22. Even if that were not the case, there is no evidence that the applicant has suffered any detriment whatsoever. Whilst he suggests that his standing and reputation have been damaged, the only evidence of this is his own belief that it is so and that is quite inconsistent with subsequent events which show that he has now been reassigned to a highly responsible position which he himself describes as “key”. Indeed, given his subsequent transfer, about which he makes no complaint, the proceedings are effectively moot and the only issue that could arise is that of costs even were it the position that the applicant had a good case to start with. 23. It seems to me that the applicant has embarked on something of a crusade for the past number of years to champion the public interest, as he sees it, in proving that his view of the law on a particular topic is correct. On more than one occasion during the course of the hearing, he invited me to make determinations regarding the status of proprietary directors for PRSI purposes. He devoted considerable time in his oral and written submissions to an exposition of the law in this area. This drives me to conclude that the respondent’s submission in this respect is well-founded and that the applicant seeks to abuse the process of this court to ventilate issues that are of no relevance to these proceedings. 24. Accordingly I will dismiss this application. |
