The High Court has dismissed a Health Service Executive appeal against a Labour Court determination that consultant anaesthetist Mary Doherty was employed on a contract of indefinite duration and should be reinstated from 1 June 2013.
The appeal, brought on a point of law under section 15(6) of the Protection of Employees (Fixed-Term Work) Act 2003, challenged the Labour Court’s April 2014 decision. Mr Justice Noonan’s judgment, delivered on 9 October 2015, did not make a new employment or reinstatement order. It dismissed the HSE’s appeal, leaving the Labour Court’s determination in place.
Dr Doherty worked for the HSE on successive fixed-term contracts from June 2008 until her employment ended on 31 May 2013. A letter dated 15 February 2013 offered a fixed-term contract through 31 May 2013 but, the High Court noted, stated no purpose for the temporary contract. A further letter dated 19 February offered an extension over the same period, saying the employment would continue until a permanent appointment was finalised. The Labour Court found there was no evidence Dr Doherty accepted the later offer and concluded the earlier contract had become one of indefinite duration by operation of law.
The HSE argued that the February 15 letter had been sent in error and should have been accompanied by the later letter. It also said the need for temporary cover while a permanent consultant was appointed through open competition objectively justified renewing the fixed-term contract. Dr Doherty argued that the HSE was trying to reopen factual issues on an appeal limited to points of law. She had also disputed before the Labour Court that her work was tied to the permanent vacancy.
Justice Noonan said the HSE could not rely on evidence about an alleged dispatch error that had not been put before the Labour Court. He held that the Labour Court’s view of which letter governed the contract was a factual finding that could not be disturbed unless it was unsupported by evidence or irrational or unreasonable. The evidence gave the Labour Court a basis to reach its conclusion, including its assessment of the correspondence and Dr Doherty’s position.
The judge accepted that filling a vacant consultant post through open competition could meet a legitimate employer need. But the HSE still had to establish the statutory grounds for renewing this contract. The Labour Court had found it had not done so, and the High Court held that finding could not be overturned on this appeal. The appeal was dismissed.