In the recent case of Maurice Power v Health Service Executive IEHC 462, Mr Power (the Plaintiff) sought orders from the High Court to prevent his removal from the position of CEO of Saolta University Healthcare Group by his employer, the Health Service Executive (HSE) (the Defendant). He also sought to halt the progressing of a competition to fill this role. The reliefs were sought pending the decision of complaints brought by Mr Power to the Workplace Relations Commission (WRC).
Background
The Plaintiff was employed by the Defendant since 1999 and held a number of posts within it. He was appointed to the permanent position of Chief Financial Officer for HSE West in 2012. In October 2014 he was asked to fill in as interim CEO of the Saolta University Healthcare Group. He was employed in this position on a series of fixed-term contracts. The HSE notified the Plaintiff in 2018 that it intended to hold a competition to appoint a permanent candidate to the CEO role. The Plaintiff took part in the competition but was unsuccessful.
As a result of this, the Plaintiff made a complaint to the WRC claiming to be entitled to a contract of indefinite duration for the role of CEO. Before the WRC had adjudicated on the complaint, the Plaintiff sought an injunction in the High Court to prevent the Defendant removing him from his role as CEO and from further proceeding with the competition to appoint a permanent candidate.
Statutory framework
Section 9 of the Protection of Employees (Fixed-Term Work) Act 2003 (the 2003 Act) provides that where a fixed-term employee is employed by his or her employer on two or more continuous fixed-term contracts, the aggregate duration of such contacts must not exceed four years. Any term of a fixed-term contract contravening this will have no effect and the contract concerned will be deemed to be a contract of indefinite duration. Section 41 of the Workplace Relations Act 2015 and section 14 of the 2003 Act provide jurisdiction for the WRC to hear and adjudicate on complaints made under the 2003 Act.
Jurisdiction
Hearing the application for relief in the High Court, Mr Justice Allen stated that the rights created by section 9 of the 2003 Act were statutory rights to be vindicated and established under the relevant statutory procedures and remedies. Accordingly, the correct body to decide on the alleged breach of such rights was the WRC.
The Judge took the view that since the High Court had no jurisdiction to decide the substance of the dispute, it had no jurisdiction to make an interim or interlocutory order in respect of the rights expressed under the 2003 Act.
The High Court also found that it had no inherent jurisdiction to supplement the statutory remedies made available by the Oireachtas to administrative tribunals for the enforcement of statutory rights. The High Court believed that the Plaintiff was seeking orders that would shape the remedy that might be ordered by the WRC if his claim were to be successful.
Interestingly, Mr Justice Allen, relying on Nolan Transport v Halligan (Unreported, High Court, Keane J., 22 March 1994) also noted that, if the issue had arisen, the Plaintiff’s delay in bringing this action would have disentitled him to the relief sought.
Conclusion
It is clear from this judgment that the High Court will not provide injunctive relief to employees in respect of statutory rights that are exclusively within the jurisdiction of the WRC to vindicate and enforce. This case adds to a growing weight of precedent in favour of employers in actions such as these. In addition, as alluded to by Mr Justice Allen in his judgment, a delay in bringing proceedings by the employee can be fatal to an employee’s claim of interim or interlocutory relief.
Contributed by: Darran Brennan
Follow us @WFEmploymentLaw @WilliamFryLaw
