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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Minister for Health and Children v. O’Briain [2003] IEHC 25 (1 July 2003) URL: http://www.bailii.org/ie/cases/IEHC/2003/25.html Cite as: [2003] IEHC 25 |
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Minister for Health and Children v. O’Briain [2003] IEHC 25 (1 July 2003)
2002, 195sp
BETWEEN
PLAINTIFF
DEFENDANT
JUDGMENT of O'Higgins J. delivered the 1st day of July, 2003.
This appeal is brought pursuant to the provisions of s.39 (14) of the Redundancy Payments Act, 1967 - 2001 which provides for an appeal on a point of law against the termination of the Employment Appeals Tribunal. The appeal is against a determination of the Tribunal made on the 19th day of April, 2002, granting the defendant's claim under the Redundancy Payments Act.
The plaintiffs submissions are:
(a) That the Tribunal made a fundamental error in law in concluding that the plaintiff was legally responsible in respect of the defendant's entitlement to redundancy.
(b) That the Tribunal failed to address correctly the question as to whether the defendant had been dismissed. Dismissal is a prerequisite to an entitlement to redundancy under the Act.
A. The Responsibility of the Plaintiff.
The plaintiff submitted that the reasoning employed by the Tribunal for attaching liability to the plaintiff was flawed and had no foundation in law. It is
instructive to examine the relevant part of the decision on which the plaintiff relies. It reads as follows:
"The only party which employed the claimant was the NRB, which is now dissolved. There was also no transfer of the business in which the claimant worked, as the particular function in which he was involved was ended when the NRB was dissolved.
The claim against the NRB cannot be allowed because that body no longer exists, and the Tribunal cannot make an award against a non-existent body.
It does seem to us, however, that the Minister is the proper respondent. The NRB was originally established by the Minister, and it was the Minister who dissolved it. From examination of the two ministerial orders it does not appear that the Minister transferred liability for a claim such as this to any of the other statutory bodies involved, and in a sense the residual liability must therefore rest with the Minister. In another sense the Minister is comparable to a liquidator of a company, and therefore is the proper party to answer the claim. A more apt comparison might be with the personal representative of a deceased human person, as a claim could arise against the estate of such a person. Indeed there is provision for such claims under the statutes set out above. We would add that the Minister has one power that is denied to an executor or administrator of a deceased, in that if the Minister established the NRB and dissolved it, he has also the power to re-establish it. No personal representative can resurrect the deceased.
For these reasons we ruled that the claim lies against the Minister as representative of the NRB (Dissolved)."
It is clear from the above that the finding of fact was that the only party which employed the claimant was the National Rehabilitation Board, which is now dissolved.
The Minister for Health and Children, by means of the National Rehabilitation Board Dissolution and Revocation Order 2000 (S.I. No. 171 of 2000) dissolved the National Rehabilitation Board. He expressly distributed certain property rights and liabilities to the Board amongst the Eastern Regional Health Board, Comhairle An Foras Aiseanna Saothair and the National Disability Authority. It was expressly provided in Section 4(1) of the order that any right, privilege, benefit or other entitlement not specifically transferred or distributed by the order, should be transferred or vested in the Regional Health ERHA [Eastern Regional Health Authority]. However the order made no express provision for any liability not specifically transferred or distributed by the order such as the liability to the defendant.
The Health (Corporate Bodies) Act 1961 gave to the Minister the power both to establish and to revoke the establishment of certain bodies. Section 7 of the Act provides as follows:
(1) The Minister may at any time by order revoke an establishment order.
(2) A revoking order shall contain such provisions as the Minister thinks necessary or expedient consequential on the revocation, and, in particular, may make provision for –
(a) the dissolution of the body established by the establishment order and the transfer or distribution of the property, rights and liabilities thereof to any of the following -
(i) the Minister,
(ii) any one or more than one other body established by an establishment order,
(iii) any one or more than one health authority, or
(iv) any one or more than one joint board of health authorities established under section 45 of the Health Act, 1953,
(b) the preservation of continuing contracts made by the dissolved body,
(c) the continuance of pending legal proceedings,
(d) notwithstanding any restriction in any other Act, the transfer of the holder of any office under the dissolved body to a similar office under -
(i) a local authority, or
(ii) any other body established by an establishment order.
The defendant submitted that in order to be intra vires the Act, and in order not to extinguish the employment rights of the defendant, Statutory Instrument 171 of 2000 must be purposively interpreted as distributing all liabilities of the National Rehabilitation Board.
In deeming the plaintiff to be the representative of the National Rehabilitation Board (Dissolved) in respect of a liability which had not been expressly distributed to any other body, Mr. O'Donnell for the defendant submitted that the tribunal rightly so interpreted Statutory Instrument No. 171 of 2000. In the alternative the defendant says that on a purposeful interpretation of the Redundancy Payment Acts the plaintiff is the employer in circumstances where he dissolved the National Rehabilitation Board without providing an express transfer of liability for the defendant's employment.
In support of those contentions I was referred to a passage in the Director of Public Prosecutions (Ivers) v Murphy [1999] 1 IR 98 where Denham J. discussed and adopted the purposive approach stating:
"This rule (the mischief rule) is now more commonly called the purposive approach. In Pepper v. Hart [1993] AC 593 Griffiths L.J. stated at p. 617:
'The days have long passed when the courts adopted a strict constructionist view of interpretation which required them to adopt the literal meaning of the language. The courts now adopt a purposive approach which seeks to give effect of the true purpose of legislation.'
I would concur with this approach. However, no method of interpretation may be such as to encroach on the constitutional role of the Oireachtas as the legislative organ of the State. The rules are applied to interpret the acts passed by the legislature and in so doing afford the respect appropriate from the judicial organ of government to the legislature.
The rules of construction are part of the tools of the court. The literal rule should not be applied if it obtains an absurd result which is pointless and which negates the intention of the legislature. If the purpose of the legislature is clear and may be read in this section without rewriting the section, then that is the appropriate interpretation for the court to take."
I was also referred to a passage in Mulcahy v. The Minister for the Marine, unreported judgment of Keane J. as he then was, 4th November, 1994 at p. 23 where he said:
"While the court is not in the language of constitutional challenge entitled to do a violence to the plain language of an enactment in order to avoid an unjust or an anomalous consequence, that does not preclude the court from departing from the literal construction of an enactment in adopting in its place a teleological or purposive approach if that would more faithfully reflect a true legislative intention gathered from the Act as a whole."
The above passages are aids to the interpretation of statutes and statutory instruments. However, in my view, they do not warrant the insertion of a clause in the statutory instrument to correct what appears to have been an omission. There seems to be no provision in the statute or statutory instrument to provide for people in the position of the defendant in this case. However, it is not the function of the court to correct that omission. In my view the Tribunal was incorrect in attempting to attach responsibility for the Minister as representative of the NRB.
B. The Decision on Dismissal
The plaintiff claims that the Tribunal did not address the question as to whether the claimant was dismissed by reason of redundancy or whether he ended his employment by agreement. A finding of dismissal by reason of redundancy was a prerequisite for the success of the defendant (See 7 Redundancy Payments Act 1967). He relies on the following passage in the decision for his contention.
"It was argued on behalf of the respondents that the claimant was not dismissed, but ended his employment by agreement when he took retirement. In one sense this may be so, but the claimant argued that this situation was forced on him when the NRB was dissolved and no agreement was reached on his transfer to any of the other bodies. There are other factors involved."
This passage taken in isolation would support the plaintiff's contention. However, later on in the decision there is a specific finding of the Tribunal as follows:
"We find, therefore, that the reason for the termination of employment was redundancy, and that the claimant is taken to be dismissed for that reason."
It is clear from that passage that the tribunal did indeed address the question of whether the defendant retired or was made redundant. It found that he was made redundant. The earlier passage was merely a statement of the arguments which were to be considered by the Tribunal. The plaintiffs claims on this ground are not sustained.
I will discuss the appropriate order to be made with counsel.
