In a move that may offer encouragement to other employees dissatisfied with Labour Court findings, the High Court has ordered the HSE to pay the legal costs of an employee’s successful challenge of a Labour Court decision. However, in the words of Mr Justice Simons, this was due largely to the “very particular circumstances” of the case.
The case concerned HSE employee, Maurice Power, chief financial officer at the Saolta Hospital Group, who in October 2014 became Saolta’s interim chief executive - initially until March 2015 (or such time as the job was filled on a permanent basis). He was informed in May 2015 that this was extended until December 2016, when it was again extended until the following December before a final extension was applied running until the end of 2018. Following an unsuccessful application for the chief executive job in 2018/19, Mr Power resumed his role as a chief financial officer in September 2019.
Mr Power went to the Labour Court, arguing that his employment rights had been contravened under the Protection of Employees (Fixed-Term Work) Act 2003. Under S9 of that Act, an employee cannot be employed on two or more continuous fixed-term contracts that have an aggregate duration of more than four years. Where that happens, the contract “shall be deemed to be a contract of indefinite duration” unless “there are objective grounds” that justify its renewal.
The Labour Court, however, said that he lacked standing to bring a claim under the Act on the grounds that an employee cannot be both permanent and fixed term.
One can appeal decisions from the Labour Court to the High Court, but only on a point of law. Costs related to an appeal from the Labour Court are not awarded by the High Court “unless the Court shall by special order allow such costs”, according to Order 105 of the Superior Courts Rules.
In this instance, the High Court recognised the “general public importance” of the case, as the issues reflected a scenario probably faced by employees across the land. It also acknowledged the barrier that such steep costs would present for the vast majority of employees seeking to enforce their rights:
“As illustrated by the costs estimates provided by the parties...the pursuit of a statutory appeal will be out of the reach of many employees...Such a deterrent effect would be unfortunate, not only for the parties immediately involved but also in terms of the public interest in ensuring that employment protection legislation is properly interpreted.”
As a result, the aforementioned special order was made requiring the HSE to pay Mr Power’s costs in this case.
On the actual point of law challenged by Mr Power, the High Court had stated that rather than take the Labour Court’s stance as viewing him as both a permanent and fixed-term employee, “the correct approach is to apply the definition of ‘fixed-term employee’ to the circumstances of (Mr Power’s) employment as interim group chief executive.”
You can read the full judgment on costs here. The original judgment can be accessed here.