A High Court judge has made a special order requiring the HSE to pay a senior employee's estimated €80,000 legal costs of his successful bid to overturn a Labour Court decision preventing him pursuing a case over alleged abuse of the law on fixed-term contracts.
Lawyers for Maurice Power, chief financial officer of the HSE's Saolta group, had estimated his costs at €80,000 but, if the sides cannot agree on a figure, the sum will be decided by a legal costs adjudicator. The HSE's costs are estimated at €45,000.
The general costs rule in High Court cases is that costs of a a successful applicant are paid by the losing side but that does not apply to a statutory appeal from a Labour Court determination.
Another rule, Order 105, provides no costs shall be allowed in such statutory appeals unless the High Court makes a special order.
On Friday, Mr Justice Garret Simons concluded, in the "very particular" circumstances of Mr Power' case, the appropriate order was to allow him recover his reasonable costs against the HSE.
He did so primarily because Mr Power’s case raised a point of law of general public importance in respect of the scope of the Protection of Employees (Fixed-Term Work) Act 2003 and the outcome of his case has implications for other employees.
An employee of the HSE since 1999, Mr Power was appointed in 2012 as chief financial officer of the Saolta group. In 2014, at the HSE’s invitation, he took up the role of interim chief executive of the group on a temporary basis until March 2015 or until the role was filled on a permanent basis. His employment in that role was extended under fixed-term contracts over the next four years.
He was an unsuccessful candidate in a 2018 competition for the post of chief executive for a five-year period and in September 2019 resumed his position as Saolta group chief financial officer.
He appealed to the High Court after the Labour Court decided he lacked standing to bring a claim under the 2003 Act on grounds an employee cannot be both a permanent employee and a fixed term employee.
The 2003 Act provides a person employed, without objective justification, on successive fixed-term contracts with an aggregate duration of more than four years shall be deemed to be employed under a contract of indefinite duration.
The High Court had to decide whether Mr Power, as an “existing employee” of the HSE who fulfils a more senior role within the HSE on a temporary basis, was excluded from the benefit of the Act.
Costs judgment
In his judgment last month, Mr Justice Simons said the Labour Court’s approach, endorsed by the HSE, was “too crude” and “precludes potential abuses being brought to light”.
The correct approach was to apply the definition of fixed-term employee to Mr Power's employment as interim chief executive of the Saolta University Healthcare group over some four years, he held.
In his follow up costs judgment on Friday, the judge said an “overly rigid” application of the costs order concerning statutory appeals to the Labour Court might well deter parties, especially employees, from pursuing a statutory appeal.
As the costs of High Court cases can run to tens of thousands of euro, even with the limited costs protection provided, the pursuit of a statutory appeal will be “out of the reach” of many employees.
The public interest arises in this case because the court had had to rule upon the interpretation of the 2003 Act, with implications for other employment relationships, and the court’s judgment corrected “a long-standing error” in the Labour Court interpretation of the legislation.
A special order requiring the HSE to pay Mr Power’s costs of his challenge to the Labour Court decision should be made, he concluded.
