Supreme Court dismisses appeal, ruling High Court erred by deciding employment status instead of Employment Appeals Tribunal.

An Chúirt Uachtarach

The Supreme Court

Record Number: 2009/1132SP

Appeal Number: 86/2011

MacMenamin J

Laffoy J

Charleton J

Between

John Barry, Conor O’Brien, Mary O’Connor, Michael Spratt and Ciarán Dolan

Applicants/Appellants

And

The Minister for Agriculture and Food

Respondent

Judgment of Mr Justice Charleton delivered on Thursday the 16th day of July 2015

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.

Background

2. It is regrettable to record that this is the eleventh year of this legal dispute. Thus far, there have been two determinations of the

Employment Appeals Tribunal and two judgments of the High Court. This appeal, from the second of those judgments, has not focused

on the tests for determining the circumstances where a person engaged in work is self-employed or, in the alternative, is an employee

of another. Since that matter was not argued, it is unfortunately not possible to give any guidance on the matter. Instead, the

appeal focused solely on the particular history that has led here.

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:

The majority having regard to all the factors in this case herein found that there is little to support the proposition that

the five [vets] were engaged in business on their own account. Rather, the preponderance of evidence suggests that

they undertook a continuing arrangement to provide their own skill and labour in the service of the Department of

Agriculture and Food on a mutually convenient basis as to how and when they would work and that they did so for

remuneration. They were not in a position to be enterprising in relation to their [temporary veterinary inspectors’]

employment. They were paid a salary. This salary was paid by the… Department… in Cavan. The [temporary veterinary

inspectors were not in a position to do their own shifts faster or in a shorter period of time like TB testers were. [They]

simply came in and did their own work, finished their shift and went back to their own business. The fact that four of the

five [vets] had their own business does not preclude them in law from being employees of the Department of Agriculture

and Food. The Tribunal determines by majority decision … that the five [vets] were employed by the [Department] under

a contract of service and therefore they were employees.

4. Pursuant to ss.39 (14) and 40 of the Redundancy Payments Acts and s.11 (2) of the Minimum Notice and Terms of Employment

Acts, an appeal on a question of law may be brought against a decision of the Employment Appeals Tribunal. The Respondent Minister

brought such an appeal to the High Court, Edwards J, claiming a misdirection as to the applicable law or, alternatively, that the law

had been incorrectly applied to the facts. Edwards J overturned the ruling of the Employment Appeals Tribunal on 7th July, 2008;

Barry & Others v. Minister for Agriculture and Food [2009] 1 IR 215 at paragraph 73 and see [2008] IEHC 216. Edwards J was critical

of the decision of the Employment Appeals Tribunal to limit the issue before it to a binary question, recognising that a self-employed

relationship could turn over time into an employment relationship depending on the circumstances. He held that there was no “single

composite test” for determining whether an employment relationship existed; that the “enterprise test” was not necessarily

determinative of the issue; and that “questions of control and integration” were not merely to be regarded as elements to be taken

into account in applying the enterprise test but were, rather, tools whereby appropriate inferences might be drawn. Edwards J at

para.20 of that first judgment in the High Court concluded:

In my view the [Employment Appeals Tribunal]’s fell into error from the very outset in formulating the preliminary question

in the way that it did, and in failing to have regard to all possibilities in determining the nature of the work relationship

between the parties. That initial error was compounded by a finding of mutuality of obligation on a flawed and untenable

basis. Further, the [Employment Appeals Tribunal] misdirected itself in law … based upon a misinterpretation of Keane J’s

judgement in Henry Denney & Sons (Ireland) Ltd v Minister for Social Welfare [1998] 1 IR 34. In all the circumstances I

must allow the appeals… I will hear submissions as to what orders may be appropriate in the circumstances.

5. On the matter returning to the Employment Appeals Tribunal for a second appraisal, further evidence was heard on the 8th

January, 2009. That evidence consisted of testimony from one of the vets, from an official in Veterinary Ireland and from an official of

the Respondent Minister, Michael Mackessy. Written submissions were then made by the parties in preference to oral submissions. A

spoken submission with a chance for the Employment Appeals Tribunal members to ask questions, might well have been more helpful in

the complex circumstances of the wealth of individual tests that might be applied to the circumstances. The Employment Appeals

Tribunal in a final ruling on the matter of 31st July 2009, the second ruling, did not feel itself to be free to make a decision. Instead, it

regarded the judgment of Edwards J as directing it to find as a matter of fact and as a matter of law that the vets in the Michelstown

meat plant were self-employed and had never been in the employment of the respondent Minister. Accordingly, the first determination

of 12th March 2007 was reversed in favour of finding that all of the vets “were engaged in a contract for services with the

respondent” and that it had “no jurisdiction to proceed with substantive hearings on these cases” under the legislation. The operative

part of that second ruling follows:

The question in this preliminary issue concerns the status and working relationship between the [temporary veterinary

inspectors] and the [respondent Minister]. [In other words] were the [vets] engaged under a contract of or a contract

for services?… [The legislation states] that an employee is a person who has entered into or works under a contract of

employment, whether that contract is for manual labour, clerical work or otherwise, is expressed or implied, oral or in

writing, and whether it is a contract of service or apprenticeship or otherwise.… Lack of mutuality of obligation means not

only must the provider not be under any obligation to provide employment, the worker must not be under any obligation to

accept any work that is offered.… [The] tribunal still maintains on the balance of probability, by a majority decision, that

the [vets] and the respondent [Minister] were engaged in a working relationship that carried sufficient mutuality of

obligation to allow them to be classified as possible employees. This allowed the Tribunal to consider the various other

tests associated with determining whether they were employed under a contract of or for services. In that consideration

their determination from March, 2007 applies. However, a ruling from the High Court in this 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. Following further consultations of this division of the Tribunal and notwithstanding the majority view

expressed above and the relevant legislation, the Tribunal feels bound to accept the former interpretation.

6. That ruling was again appealed to the High Court, Hedigan J, this time by the vets. Hedigan J in the second High Court appeal

refused to overturn the ruling, holding that as a matter of law the Tribunal had been correct; Barry & Others v. Minister for

Agriculture and Food [2011] IEHC 43. Hedigan J held that the question of mutuality of obligation is central to the issue that the

Tribunal had decided and that there was “nothing in the additional evidence… which was of such crucial importance that having heard

it no reasonable Tribunal would be entitled to conclude that the [vets] were employed other than under a contract for service.”

Hedigan J on the express issue that has been argued on this appeal, that of the entitlement or non-entitlement of the High Court to

direct the Employment Appeals Tribunal as to their findings, held at para.7.7:

I am obliged therefore to refuse the relief sought by the appellants to have their claim returned to the Employment

Appeals Tribunal. It is therefore not necessary for me to consider the issue of express directions [by Edwards J in the High

Court] to the Tribunal as to the correct application of the law to the facts in this case.

7. That issue as to whether there had been an express direction by Edwards J and if there had been what was to be done about it

was, however, central to the question as to whether the Employment Appeals Tribunal had properly exercised jurisdiction in relation to

this matter.

Contract

8. One of the problems faced by the Employment Appeals Tribunal, and by Edwards J on the first appeal to the High Court, was that

there was little in the way of a written contract that could have assisted in determining whether: the vets in working at the

Middleton meat plant were self-employed contractors; or whether, from the outset, they were employees of the respondent Minister;

or whether, over a period of time, the conditions of engagement changed at a particular point from one to the other. Some details are

available. A notice from the Department of Agriculture and Food dated 28th of August, 1995, specifies that applicants for the work

will be given training and that an inspector in charge at each meat plant “will call upon the services of the panellists at the plant as

and when required on the basis of seniority, availability and suitability, assessed on work performance.” This, presumably, is the

“major agreement” referenced by the Employment Appeals Tribunal, first decision, as “concerning rules of engagement for [temporary

veterinary inspectors]”. Another notice which is stated to be effective as of “1st January, 1999” specifically requires this training but

establishes that there may be “disciplinary action”, where there is inability to attend for a particular shift in the plant. In itself, this is

a peculiar term to apply to a self-employed person, though it is not necessarily determinative of the nature of an employment

relationship in itself. This memorandum provides indications in relation to annual leave, inability to attend for practice reasons, sick

leave, and maternity leave. An update was provided in November, 1999. Then, there is an agreement of the 2nd September, 2003, as

to budget allocations and a new hourly rate of pay was set at €58.35 but subject to adjustments under further national wage

agreements. As of January, 2004, detailed conditions of engagement were set out by the Department in a lengthy document which

provided for remuneration and attendance, absence of payment for lunch breaks, electronic recording of the hours worked, detailed

provisions as to the operation of the panels and as to how shifts were to be changed. Finally, a memorandum from the Department on

16th June 2004 refers to applicants being notified “by Personnel Division as soon as they have been approved for engagement.”

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.

Jurisdiction

10. The Employment Appeals Tribunal was originally established in 1967 as the Redundancy Appeals Tribunal under s.39 of the

Redundancy Payments Act 1967. With the introduction of statutory rights to redundancy on the failure of a business or on surplus

employees being let go, an entitlement was also established with a view to determining rights by ex-employees to redundancy

payments to seek a ruling from a rights commissioner, whose ruling in turn could be appealed to a more formal quasi- judicial tribunal.

Both the rights and the manner of enforcing the rights were new to the legal system and were justiciable not in the courts established

under Article 34 of the Constitution, but through a mechanism of resolution established separately. Procedural rules are contained in

the Redundancy (Redundancy Appeals Tribunal) Regulations 1968, which have been since much amended; SI No.24 of 1968. Hearings

are conducted by a panel of three, with a legally qualified chairperson and hearings are open to the public, save by request.

Complaints of not being given the statutory minimum notice of dismissal may be referred to the Employment Appeals Tribunal under

the Minimum Notice and Terms of the Employment Act 1973 section 4. Upon such a claim succeeding, an award may be made in

compensation for any loss and this is recoverable as a simple contract debt against the employer; section 12 (2). A right of appeal is

provided, as noted above, and this may also be exercised by the relevant Minister; section 12 (3). The extensive jurisdiction of the

Employment Appeals Tribunal includes such legislation as the Maternity Protection Acts 1994-2004 and the Transfer of Undertaking

Regulations 2003; see generally Forde and Byrne, Employment Law 3rd Ed., (Dublin, 2009). The appellate jurisdiction is specifically

defined in s.39 of the Redundancy Payments Act 1967 in providing:

The decision of the Tribunal on any question referred to it under this section shall be final and conclusive, save that any

person dissatisfied with the decision may appeal therefrom to the High Court on a question of law.

11. The Employment Appeals Tribunal is a creature of legislation exercising jurisdiction in the enforcement of modern employment

rights which did not exist at common law and which were created specifically by statute, often pursuant to international convention

obligations, and with precise remedies under legislation, the analysis of which are within the exclusive competence of that statutory

body. The High Court is not mandated to exercise that jurisdiction. Appeals are not by rehearing, with the High Court applying its own

view, but are on the basis of whether there has been an error of law in the reasoning or, alternatively, such a fundamental error of

fact such that an error of law may be inferred. Clarke J in Fitzgibbon v. Law Society of Ireland [2014] IESC 48 (Unreported, Supreme

Court, 29th July, 2014) at para 1.2 commented on the wide range of statutory wordings which can cause confusion;

[The] problem stems from the use of terminology in the context of appeals which can be open to legitimate debate as to

its proper meaning and which can, therefore, lead to significant uncertainty as to the precise form of appeal permitted.

The background to that difficulty is that the term "appeal" covers a wide range of possible forms of process. These

comments are offered in the hope that they may be taken on board by those who are charged, whether in the public or

private spheres, with drafting rules or legislation (whether primary or secondary) which provide for the possibility of an

appeal.

The only body with jurisdiction in respect of redundancy payments and minimum notice payments on the termination of employment is

the Employment Appeals Tribunal. That jurisdiction exists by virtue of statute and its exclusive nature determines that no other body

can make decisions that are mandated solely to the Employment Appeals Tribunal. In reaching the decision which he did, it is clear

that Edwards J was not giving any direction to the Employment Appeals Tribunal as to the decision which it should make; and nor

could he. The appellate jurisdiction exercised in this statutory context by the High Court is one in relation to law only. The statutory

entitlement to appeal is limited and, specifically, this form of appeal is not a rehearing. The High Court cannot substitute its own view

for that of the Tribunal. Indeed, in his decision Hedigan J recognised this in quoting from the decision of Donaldson MR in O’Kelly &

Others v. Trusthouse Forte plc [1983] ICR 723 where it was stated that an appellate court “must loyally accept the conclusions of

fact with which it is presented” on such an appeal despite that exercise being “unpalatable … on occasion.” The trial judge accepted

that unless there has been an express direction of law, deriving an incorrect principle of law from factual analysis by the Tribunal was

a heavy burden. This emphasises the express nature of the jurisdiction of statutory tribunals and the role which they have in fact

finding. This form of statutory appeal, not by way of rehearing, is an exercise in respect for the tribunal tasked with finding facts.

Donaldson MR. held that such tribunals were at large unless “no reasonable tribunal, properly directing itself on the relevant questions

of law could have reached the conclusion under appeal.”

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 [1986] 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.

Result

15. In thus deciding that the High Court, Edwards J, had made a ruling requiring the tribunal to find in favour of the respondent

Minister, the Employment Appeals Tribunal was in error in the second determination. The trial judge in the judicial review of this

second decision, Hedigan J, was unfortunately drawn into an analysis of employment law related to the factual circumstances and the

point which was so clearly identified on this appeal as to jurisdiction was regrettably subsumed in a plethora of legal argument in the

High Court.

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.