Duncan Inverarity of A&L Goodbody discusses the top employment cases of the year, including any updates since our Annual Review in November. Christine Quinn of Legal Island will put your questions to Duncan live, so listen in and send in any questions via the chat box.

Each case review will cover:

• A short discussion on the facts and background of the case.
• A short discussion on the decision and why it’s important to you.
• Recommended actions as a result of the decision.
• We’ll also answer your live questions.

Focus on practical solutions to real problems. And get ready to act in 2023.

Recording:

Transcript:

Laura: Good morning, everyone. You're very welcome to the latest webinar by Legal-Island. This one today is in association with A&L Goodbody Solicitors. My name is Laura McKee, and I am part of the Knowledge Team here at Legal-Island. I'm delighted to be joined by employment law expert Duncan Inverarity. Duncan is the head of the employment law group at A&L Goodbody.

So if you were at the Annual Review of Employment Law last November, you will recall that Duncan covered a lot of Irish case law that's relevant in this jurisdiction and that impacts employers here. So today's session is a follow-on session to that. Some of the cases would've been covered in the Annual Review and some of them will be new. Don't worry, we will be sending you notes and slides after this event, so keep an eye out for that email in your inbox.

Also, you will find Duncan's notes in the right-hand side of your screen under the heading of hand-outs, so you can download that and follow through while Duncan is speaking.

So, folks, we've got about 10 cases to get through today. Duncan will speak until approximately 11:45. And if you have any questions, you can put them into the question box, which is just on the right-hand side of your screen.

So before we get started, I would like to tell you about an event that we have coming up online, and that is on 28 February. It is "Key Priorities for HR During a Cost-of-Living Crisis". And we have a fantastic line-up of speakers for that event. They will be exploring some creative ways in which employers can provide support to employees during a cost-of-living crisis.

And just before I hand you over to Duncan, I want to tell you about some of Legal-Island's services. So the first one that many of you already subscribed to is our Employment Law Hub. And if you're not, why not? It's a one-stop shop for all legislative updates, case law reviews, and topical issues. So if you're not a subscriber already, you can avail of a 30-day free trial.

We also have a number of conferences, events, and HR trainings happening throughout the year, and these are all delivered by our employment law and HR experts.

And thirdly, we are Ireland's leading market provider for compliance eLearning training, and we've got two new courses available up on the eLearning website. They are "Social Media in the Workplace" and "ESG in the Workplace". So ESG being the Environmental, Social, and Governance issues, a real buzzword at the moment.

That's it from me. I'd like to hand you over now to Duncan, and Duncan will go through each of the cases. Duncan, it'd be great if you could give us a background to the cases and maybe reflect on some of the key takeaways for employers.

Duncan:  Thanks very much, Laura. Just a big shout out to Laura. I had the pleasure of working with Laura for many years in Goodbody, and she's gone onto grasses greener in Legal-Island. So huge congratulations to Laura in her new endeavours.

Look, there are a few cases to get through, and it's probably best just to dive in to get through the cases within the allotted time. And there are a number of cases that we did touch on in the Annual Review last year, but there are just a couple of cases that I want to bring to your attention.

This is as up to date as I can make it. One of the hardest things to do clearly in this exercise is deciding what are the most important cases to bring to your attention. I hope I've got it right. I may not, and others will probably disagree with me. But look, this is my take on the most interesting cases to come out of 2022 and just creeping into 2023 as well.

So the first is the case of Maurice Power v Health Service Executive. This is in relation to the Fixed-Term Work Act. Always interesting to give the facts. It puts a bit of reality to what the decision is about.

So Mr Power was the CFO of University Healthcare Group. He was appointed to the position of interim Chief Executive Officer for a period of time. And as always happens in these types of situations, his contract in that interim role was renewed and renewed and renewed.

It was to a point where he applied for the job, was unsuccessful in the job, and someone else was successful in being appointed to the job. So he claimed under the Fixed-Term Work Act that, "I have a contracted indefinite duration as the Chief Executive Officer".

So the big issue in this case is does the Fixed-Term Work Act apply to an existing employee as opposed to an employee who was taken on, on a fixed-term contract?

And this case went all the way to the Supreme Court, so it's quite a weighty decision and a very important decision from an employment law perspective.

And what the Supreme Court was asked to consider was whether Mr Power was indeed a fixed-term employee during the times which he acted up into this interim role or, as the HSC were arguing, was this a variation to his existing contract and not indeed a fixed-term contract to the extent that the fixed-term contract didn't apply?

What Supreme Court looked at was the definition of fixed-term employee in the Fixed-Term Work Act. And they said that the relevant definition refers to the contract concerned, and that was a very important distinction for the Supreme Court. And the contract concern was the contract that he was on for the interim role.

And what the Supreme Court determined was that it meant the contract that was operative at the relevant time was a fixed contract, and the fixed contract would fulfil the interim role.

So what is hugely important from this particular case is that the Fixed-Term Work Act applies to employees already in employment, albeit in an interim or acting up role. So it's not a variation of your contract. It is a new contract. It's not a postponement of your contract. It is, as I say, a new fixed-term contract. So, as I say, it was a very important development in the area of Fixed-Term Work Act.

What Mr Justice Woulfe of the Supreme Court said in looking at this case . . . And if the HSC were correct in their argument, he would say it's a variation or a postponement. He said that the effect would be to remove the application of the Act from one entire cohort of employees, that is employees who are already in permanent employment with their employer, but who agree to act up in a higher role on a temporary basis.

And he said the Act doesn't exclude those people, so therefore, they are included. So if you're an existing employee, you still may have access to the Fixed-Term Work Act.

So key takeaway. And I'll try and do this with each of the cases, as Laura said. When putting people in acting up positions, be conscious of the fact that it could probably be a fixed-term contract. And because it's a fixed-term contract, you've got to apply the same principles, and that is that you have to tell them on the date of renewal of a fixed-term contract what the objective grounds are as to why they're not getting a permanent role, and why you have to renew the contract, and so on. So the normal rules that apply to the fixed-term work scenario.

The next case I want to talk to you about is Doolin v Data Protection Commissioner. I think this is a really interesting case for a number of reasons.

Just to give you the background, Mr Doolin worked for a hospice, and there was an incident whereby someone had gone into the lunchroom and had carved graffiti into the lunchroom table. The Guards were called, and the Gardaí said, "You need to look at your CCTV", which they did. And they noticed that Mr Doolin was coming in and going out on unauthorised breaks into the tearoom.

Now, what they were at pains to point out is that they didn't accuse Mr Doolin of carving the graffiti. His problem and the mischief was the fact that he was taking unauthorised breaks. So they reviewed the CCTV, they conducted the disciplinary hearing, and he was disciplined as a result and was dismissed. He made a complaint to the Data Protection Commissioner, who supported the employer's use of the CCTV.

Now, it's important to know what was the CCTV authorised to be used for? There were signs, and the policy provided that the purpose of the CCTV system was to prevent crime and promote staff security and public safety. And there was a sign placed next to the camera, which said, "Images are recorded for the purposes of health, and safety, and crime prevention". So that to the world was what the cameras were being used for.

The employer argued that it was a secondary issue, the fact that they used this . . . or sorry, that the CCTV identified an issue, which they could use for the purposes of a disciplinary matter. The DPC was supportive of the employer.

Now, there are a number of interesting features about this case, but an interesting feature is that Mr Doolin appealed that decision to the Circuit Court. He was unsuccessful. He went to the High Court, and ultimately, this got to the Court of Appeal.

So an issue which you'd think is not that particularly significant is suddenly before the Court of Appeal, and the Court of Appeal are now making pronouncements about the use of CCTV, which is why it's interesting for our purpose.

So I've gone through what the policy said, what the signs next to the CCTV camera said. So the big question is does the review of this CCTV and the policy permit the employer to go through this disciplinary process and use the CCTV image?

The High Court … [break in audio] … way to the Court of Appeal, held that the CCTV footage had been used for a different purpose than that for which it was originally collected. And the High Court said, "The CCTV was collected for the express and exclusive purpose of security", and was used permissibly for that purpose, but was also used for a distinct and separate purpose, that being the application of the disciplinary procedure into the unauthorised breaks that Mr Doolin had been taking. And they said that, therefore, the image had been unlawfully processed.

Court of Appeal considered the issue on appeal from the High Court, and the Data Protection Commissioner appealing the . . . Sorry, they appealed to the Court of Appeal.

They said the basis of the appeal was that the CCTV was used for the purpose of security, which was permitted under the policy. It was further processed for a security purpose, which was to see who had gone in and out of the particular lunchroom, and the fact that it was used in a disciplinary issue was not incompatible with the security purpose.

So they're very much relying on the fact that the policy was right. The fact that it was used for a subsequent disciplinary procedure was not incompatible with a security reason.

Court of Appeal was having none of that, and they said that the information on the CCTV was processed on three occasions, the first being when it was collected, the second when it was being reviewed for the purposes of the security incident, that is the carving on the table in the lunchroom, and finally when it was used as part of the investigation report. And indeed, the CCTV formed part of the investigation report.

So they said it had not only been processed perhaps legitimately to start with, but that legitimacy faded away as time went on, and it was further processed for reasons other than the policy provided.

So Mr Doolin was successful in the Court of Appeal and the CCTV was impermissible.

Now what does this mean? It doesn't say that Mr Doolin succeeded in his unfair dismissal. This case was all about the use of CCTV, not whether or not he had been unfairly dismissed.

But the key takeaway, pretty obviously, is you've got to make sure your policy matches what you use your CCTV footage for. That doesn't give you a carte blanche to have a very broad policy and use the CCTV. There are guidance that the DPC have produced, and I've reproduced the link in my paper for you to have a look at.

But what is absolutely clear from this decision is whatever you use your CCTV for must be provided for in your own policies, in signs, and employees need to be aware of that as well. So just a word of warning.

The next case I want to talk about is Karshan Trading as Domino's Pizza v The Revenue Commissioners. Now, we can see where this case is going. This is all about how you properly classify a person as an employee or an independent contractor.

So this is again a decision of the Court of Appeal. It was taken by the Revenue Commissioners who, as often is the case in these types of matters, determined that the contractors were in fact employees. And this comes down to a tax consideration. So tax hadn't been appropriately or properly paid by Domino's Pizza. So Domino's Pizza challenged the Revenue Commissioner all the way to the Court of Appeal.

And the Court of Appeal, I personally think somewhat surprisingly, have found that these drivers for Domino's Pizza are indeed independent contractors, which was somewhat surprising. And spoiler, but it's now on appeal to the Supreme Court, so we'll see where that goes.

But it was a majority decision of the Court of Appeal, so it wasn't unanimous, which is not unusual. They usually are quite consensus driven, and you would often find that they are unanimous decisions.

The first thing you have to consider whether an employee is an employee or an independent contract is this mutuality of obligation test. So what does that mean? Does the employer have an obligation to provide work? Does the employee have an obligation to perform work? If you don't have that, everything else falls away. So that is the key test in terms of contractor versus employee.

And they said only once the mutuality of obligation is established should the Court look at other matters, to include the right of substitution, so can you substitute your service for that of another which would indicate that it's contract for service, not of service, where you are in the business, the level of integration you have in the business, and then finally the terms of the contract itself.

Now, we all know that just because a contract says you're an independent contractor, that's not determinative. But the big issue here is what is the mutuality of obligation? Is there one? If there isn't one, we can move on and they're an independent contractor.

So the Court of Appeal found that there was no mutuality of obligation between the parties. And on that basis, they were independent contractors and not employees.

Now, it doesn't change the law necessarily in terms of what we understood it to be. The key test is the mutuality of obligation test. But it is fact-specific. It is on appeal to the Supreme Court, and I think this will be a really interesting case to watch. So hopefully when I talk at the next Annual Review, we'll have a decision on this particular case.

But just be aware. Get a code of practice on determining employment status, and I put a link to that paper in my paper. So hopefully that will be of assistance.

Next case is Leonard v Health Service Executive. This is an employment injunction case. We didn't have too many this year, but this is one that we did have.

Now, it involves the HSC, and you might think, "Well, it's going to be very specific to the public sector". It's not. It raises all sorts of issues, which are common across public sector or private sector.

So Mr Leonard was a very senior person within the National Ambulance Service. He was promoted to a position of Business Community Manager. This is all within the HSC, but he was moving between various sections of the HSC. And this was the promotion. As a result of the promotion, he resigned from his job, which was the Paramedic Supervisor in the National Ambulance Service, to take up his new role.

Apparently, there is a form that one fills in called a Form HR106, which is basically akin to a letter of resignation where you come off the system.

So he began his new role as the Business Community Manager in James Connolly Hospital, realised after a very short period of time, I think it was 15 days, "This isn't for me", and wanted to go back to his previous job.

So this is where it gets interesting. When he went to go back to his previous job, he says he was given all sorts of assurances that that would be possible, that he could return to his previous role.

On foot of those representations, he says he resigned from his new role and went to go back to his old role. He had been rostered to work in his old role and, as he said, he was given representations he could return to his old role.

Lo and behold, when he went back to his old role, they said, "No, no, no, you can't come back. You've resigned. You've put in your HR106 Form. In order for us to fill your role, which was vacated by you, we have to go through a public appointments process. It's not within our gift, it's not within our discretion, to simply give you your job back".

So Mr Leonard was clearly falling between stools. He was falling between the Business Community Manager stool and the Paramedic Supervisor stool, and was left without anywhere to sit, to keep the analogy going.

So he went after the High Court, because they had advertised his new role and they were going to fill the new role.

What was he looking for from the High Court? So he's looking for an injunction. He was looking for an injunction restraining the HSE from appointing someone to his previous role of Paramedic Supervisor, and an injunction directing the HSE to pay him his salary and entitlements up to the day of the hearing.

So trying to get a degree of security, insofar as if he was unsuccessful, his role would be filled and he would be without employment. He had two resignations and no job, effectively.

So what did the High Court decide? The High Court were very much on Mr Leonard's side, it has to be said. They said, "Look, we understand you have to establish a fair . . ." This is Ms Justice Roberts. She said, "You have to establish a fair question that you would succeed at trial". But she said, "Look, on the facts as I understand them", and the express representations made to him about his right to return to the role, he not only had a fair case, but he had a strong case that he would likely succeed in the action.

And then she said in looking at the three tests, which is the adequacy of damages, the balance of convenience, and fair issue . . . I've dealt with the fair issue. On the adequacy of damages and the balance of convenience, she said, "If I didn't give this injunction and they filled the role, he would have no chance of getting that job back again". So balance of convenience was very much in his favour.

They said, "Yes, you can employ to the HSE. Yes, you can employ someone on an interim basis, but it has to be on an interim basis, not a permanent basis". And she directed that his salary be paid.

So why this is important is you have to be so careful as to what assurances you give people. There is often a situation where someone resigns from a role, goes to a new role within an organisation.

And his case, Mr Leonard's case, really does succeed on the basis of the assurances that he was given. It's almost like an estoppel point. The HSC now can't turn around . . . Just because a computer says, "No", and we have to go through an appointments process, that's not sufficient because he has certain rights as a matter of common law that he has acquired by representations that have been made to him. So just be careful what you say. We move on to the next slide.

The next decision is Pat Keating v Shannon Foynes Port Company. Again, to give you the facts, this is a High Court decision involving a claim by Mr Keating for performance-related pay.

So Mr Keating was the Chief Executive Officer of the Shannon Foynes Port Company. The case is all about director's duties. Again, it's a semi-state case. Shannon Foynes Port Company, the major shareholders are the Minister, the government effectively. But it's a case about director's duties, whether or not the shareholder's the public sector, or a minister, or a private citizen.

What this case is all about is director's duties. The director's duties are owed to the company and not the shareholder. So that is the fundamental proposition that this case not only established, but probably affirmed. We probably knew that, but this is a really good example of where it fell down in a fairly spectacular way.

So Mr Keating had a contract, which entitled him to 35% performance payment if the remuneration committee approved it having reviewed his performance during the relevant period.

So we have a situation from 2010 to 2017 where the board and the remuneration committee were all in favour of paying the performance-related pay to Mr Keating. So you go, "Well, what's this about? Mr Keating was going to get his money". Not that simple because of the shareholder.

The shareholder was the Minister for Transport and the Minister for Public Expenditure and Reform. They had issued, and this is important, whether it was a policy, a direction, an edict, whatever, that people in particular positions such as Mr Keating should not receive performance-related pay. So that's irrespective of what his contractual entitlement is.

So we have everybody but the shareholder saying that he should be receiving the performance-related pay.

The reason they say, in terms of defending this case, they said that they couldn't discharge the performance-related pay because Shannon Foynes Port Company was at all material times subject to a directive, and that's an important word, directive, issued by the Minister for Transport, with the relevant section in the Harbours Act requiring the defendant to comply with government policy not to pay bonuses to CEOs of commercial state bodies, including Shannon Foynes Port Company.

So the High Court had to look at, "Well, what does that mean? What is that requirement of the board? And does that trump their duties as a director? And also does that trump Mr Keating's contractual entitlement?"

So the High Court having looked at all this, and looked at all the correspondence between the Minister and the Shannon Foynes Port Company, they said that it was actually a policy and not a directive.

So had it been a directive, perhaps the result would've been different, but this was merely a policy and a guide, but no more than a guide. And the obligation of a director to the company outweighs the views, which is reflected in a policy, of the shareholder.

So the shareholder, if they're displeased with the way in which directors have voted, say, for the performance-related pay, like any shareholder, be it in whatever company, can remove the director. But they can't unduly influence a director because the director's obligations are to the company.

And as I say, it is a general proposition across the board insofar as director's duties are concerned. And you had this bizarre situation where everybody bar the shareholder wanted to pay poor old Mr Keating his bonus.

So at the end of the day, Mr Keating was awarded almost €300,000 in unpaid bonuses over a period of seven years.

And the key takeaway here clearly is that the directors should remember, need to remember, their primary obligation is to the company and not to the shareholders. And there are many, many examples of that at the moment where directors are being accused of not taking into account the interests of the company over that of the shareholder.

The next case is Philomena Hennessy v Ladbrooks Payments, which is a case about a waiver agreement. Again, it's relevant to us as employment and HR specialists because we always get employees when walking out the door with a severance payment or an ex gratia payment of some description. We get them to sign a compromise agreement.

Now, Ms Hennessy was no different. She had been employed by Ladbrooks for a good number of years, 1998 to 2015. And she was ultimately made redundant, and this is ultimately the decision of the High Court.

So when she resigned, as I've set out, as in good practice, she was asked to sign a waiver agreement. Now eight months, ink not even dry on the waiver agreement, she put an application into PIAB alleging she had suffered a personal injury whilst employed by Ladbrooks.

So Ladbrooks ultimately came to court last year looking to dismiss the personal injury application. Now, remembering that she'd left in 2016, this is 2022.

So the three grounds that they said were relevant as to why she should not succeed in her action is because, first of all, she'd signed a waiver agreement. Secondly, the proceedings were statute barred. And then finally, the delay that Ms Hennessy had been guilty of was inexcusable, and was inordinate, and therefore she should not be allowed to continue. So they were the three reasons as to why she should not succeed.

So this was the decision of Ms Justice Bolger. She effectively threw out all three reasons as to why the case should not proceed.

The first, and I think probably the most fundamental for our consideration, is that Ms Hennessy had not been advised to seek independent legal advice in relation to the waiver agreement. In addition, she wasn't even afforded the opportunity to seek legal advice.

Ms Hennessy gave evidence on affidavit to the extent that she was told, "You have to take it or leave it. This is the offer, and if you leave it, it'll go to someone else", and she wanted the cash at the time. Which is all well and good, and it's nothing wrong with that in itself, but she wasn't advised on the consequences of taking the deal.

What was worse was the agreement said that she had actually obtained independent legal advice when in reality she hadn't. And that was a source of much criticism from the High Court.

Ms Justice Bolger said that if she had taken independent legal advice, she may have decided differently, but what was absolutely clear was that she hadn't. The agreement did not reflect what happened in reality, and nor was she given the opportunity to take legal advice.

The second reason being that the proceedings were bound to fail because she was statute-barred. Ms Justice Bolger said, "Well, that's to be determined, because the question is at what point did the plaintiff, Ms Hennessy, become aware that she had an injury? And that's not a matter to be determined at the interlocutory stage. That should go to trial".

And then finally, the delay piece, Ms Justice Bolger threw that out on the basis that she wasn't satisfied that the delay was inordinate. And she said that there was no prejudice evidence toward Ladbrooks if this case did proceed.

So clearly, the point is prejudice as a result of the delay, and that hadn't occurred. So for all those reasons, it had been thrown out.

But the key takeaway, I think, from our perspective, from the employment and HR perspective, is this requirement to get legal advice. So at the very, very least, you have to give people the opportunity. They may choose not to take legal advice. You can absolutely lead the horse to water, but you can't make them take advice. That's pretty clear.

The second issue is that if you have an agreement, it needs to reflect the reality of what has in fact gone on. So if you put in that they've taken legal advice and they haven't, then that's problematic.

The other thing to say about taking legal advice is the best way to find out and to confirm that the employee has taken legal advice is to have their legal adviser send their invoice to the company for payment. So that is a record for the company that the person has taken legal advice.

Moving away from waiver agreements to protected disclosures. Now, this is a very topical issue at the moment with the directive and the changes that have been made to our legislation which are now enforced. So protected disclosures, I think, will be a reasonably big feature of 2023. And interesting to look at this case also through "would it have been decided differently with the new legislation?" and I'll just make a really brief comment about that.

This is the case of Nolan v Fingal County Council. So Mr Nolan worked for Fingal County Council, and he was responsible for traveller housing issues. He says he had an unblemished work history, which is somewhat irrelevant to the case.

He says that in 2017 and 2018, he was subjected to instances where he had been harassed and intimidated from a number of service users. And as a result of that complaint, he was moved from his role to a . . . downgraded effectively, and into another role.

He said, "I've made a protected disclosure about the way in which I've been treated". So bracket health and safety. "You have penalised me by downgrading me".

So this worked its way through the WRC, through the Labour Court. Both the WRC and Labour Court found that his complaint did not amount to a relevant wrongdoing because it was his responsibility to investigate these particular issues. So relying on Section 5.5 and Section 5.3 of the Act.

It went to the High Court, and the High Court disagreed with the Labour Court. They said that if you are required to detect, investigate, or prosecute a particular issue, and that then doesn't constitute a relevant wrongdoing, that will remove such a large cohort of people from the protection of this Act that it just can't be right. And it would render the Act essentially ineffective for a huge group of employees.

So the High Court said that the Labour Court got it wrong and have remitted the matter back to the Labour Court.

If you look at it through the eyes of the current legislation, this is about health and safety. So it wasn't about his job was to investigate these particular issues. His complaint was the fact that "I am receiving adverse treatment, which is affecting my health and safety".

Now, the new legislation talks about the exclusion of personal grievances, but what it doesn't do is it doesn't exclude health and safety issues. And so long as it's health and safety about another person, then that will meet the test even under the new legislation.

So I don't think the new legislation would've changed the way in which this particular decision was interpreted.

So moving on to the next slide, Morgan v The Labour Court is a decision all about the Isaac Wunder Principle. Now, for those who don't know what an Isaac Wunder Order is, it's an order which essentially declares someone to be frivolous and vexatious, and that they require the leave of the Court to institute proceedings.

Now, what this case was all about was whether or not a statutory tribunal or someone who comes to a statutory tribunal can be the subject of an Isaac Wunder Order.

And Mr Justice Ferriter in the High Court ultimately held that, yes, it is. So the WRC can seek the protection. It wouldn't be the WRC, but a defendant can seek the protection of an Isaac Wunder Order even though it is a statutory tribunal. So that is quite a development in the area of employment law.

This case involved a teacher by the name of Morgan. She was an art teacher for the Kildare and Wicklow Education and Training Board. She, way back in 2010, made an allegation that she had been sexually harassed by a male student. She withdrew the allegation. The employer continued with the investigation, found it not to be . . . sorry, came to the view that it was unfounded. There followed a series of processes with Ms Morgan, which ultimately resulted in the termination of her employment.

She then brought multiple claims through the WRC based on similar facts and the like and really clogged up the system.

And so unusually, it has to be said, because we've all thought about, "Well, see if we can take an Isaac Wunder Order here", but unusually the defendant took the case to the High Court looking for an Isaac Wunder Order.

And what did the High Court decide? Mr Justice Ferriter said that the case was a manifestly appropriate case for an Isaac Wunder Order. He reviewed the cases that she had taken over the years and he said that, "The appellant has engaged in the habitual and persistent institution of proceedings both before the WRC and in the Courts in respect of issues related to her removal from her office as teacher with the Board".

And he said, "Notwithstanding the fact that she has been subject to binding inclusive prior determination, she has repeatedly engaged in the vexatious repackaging of claims already determined against her".

He said, "Indeed, she made clear to the Court during the hearing of the various matters before me that she intended to continue her campaign of proceedings". So it's interesting the way in which he categorises it. He categorises it as vexatious repackaging of claims and a continued campaign. So he saw this as a campaign on her part and was, I think, only too happy to grant the Isaac Wunder Order.

And of course, like all good vexatious litigants, she's appealed this to the Court of Appeals. So again, we can report on that towards the end of the year.

But as I say, interesting to know it's still a very high bar to get an Isaac Wunder Order. And I think you need to distinguish this case from other cases. For example, I've been involved in a number of cases where employees or applicants keep coming back to the WRC because they have a fresh application. So the facts are different, but the issue itself had been previously determined.

So I'm thinking of things like a right to be forgotten type application. There was a right to be forgotten type application, which is a new application every time because the person still hasn't been forgotten and they still want to be forgotten, which is very hard to determine to be an Isaac Wunder Order because the person has a right to bring the claim. As opposed to this person who is repackaging, to use the words of Mr Justice Ferriter, the issues, but they're the same issues.

The next case I want to talk about is Gerard McVeigh v Dunnes Stores. This is a case involving a termination of employment of Mr McVeigh related to events which have nothing to do with Dunnes Stores. So it's an unfair dismissal. Mr McVeigh worked in night packaging, had been employed by Dunnes Stores since 2007, so had considerable service.

So in 2021, on his way to work, he was arrested outside Dunnes Stores for an offence allegedly contrary to the Sexual Offences Act. When he eventually got to work after being bailed, they sat him down. They said, "What's this about?" He refused to tell them, so they suspended him pending the outcome of an investigation. Investigation starts, they say, "What's this about?" He continually refuses to tell them what it's about.

There are newspaper clippings involving this particular individual that Dunnes Stores would present to him. He continued to refuse on the advice of his solicitor to say what it was about. Assume for self-incrimination reasons. One never knows.

He then was terminated. His employment was terminated having gone through the process. He appealed the decision, which was unsuccessful.

Important to know Dunnes Stores have a code of conduct, which says that you can't bring the company into disrepute and you have to conduct yourself in a particular way such that that will not occur.

Anyway, Mr McVeigh goes to the WRC alleging unfair dismissal for the following reasons. He'd not been told of the nature and the specifics of why the meetings were being held. He'd not been told that the meetings were going to lead to the termination of the employment, or could. He'd not been aware of the seriousness of the matter. He was denied the opportunity to have a trade union representative, and that the store manager operated both as investigator and decision-maker.

Now, the WRC were quite sympathetic towards Dunnes Stores and said, "Look, in circumstances where he refused to cooperate, where he refused to answer questions, you had a policy to deal with this particular situation whereby an employee was bringing the employer potentially to disrepute. An investigation had been conducted, was hampered by Mr McVeigh's attitude to the investigation. He could have a trade union representative. He was never denied a trade union representative". They didn't accept that he didn't understand the seriousness of the issue and that the investigator didn't act in a way which was other than impartial.

So they found that it was within the reasonable bounds of what an employer could do. So he was dismissed and he was unsuccessful in this unfair dismissal application.

Now, this does not constitute a free pass for all employers to be dismissing people for things that happen outside work. They're very fact-specific.

I have a number of cases where a client will ring me and say, "Something has happened outside work", someone has been convicted of a criminal offence, or is in the process of going through the criminal process. It's not that straightforward, but at the very least, the policy should have something about bringing the company into disrepute. But that has to be real, and it has to be disrepute and not just something less than that.

Final case I want to talk about. It would not be an employment law discussion if I don't mention Mr Burke and his battle with the Board of Management of Wilson's Hospital. So when I prepared this paper, I had a decision in there from Mr Justice O'Moore from December 2022 when Justice O'Moore released Mr Burke from prison after 108 days.

Really quickly on that particular ruling from Mr Justice O'Moore, he said that he was released, it's very well known in the press that he was released, and he said, "I appreciate that Mr Burke is continuing to fail to obey the order, but not everyone who disobeys an order should remain in jail".

He said, "The reason I'm releasing is because of the school's attitude. There is the Christmas holiday period when the school will be closed. The appalling use of public funds whereby we're paying his salary as a teacher and we are putting him up in Mountjoy jail. There are alternatives to jailing Mr Burke. And Mr Burke's motivation, which is one of publicity. He's publicising his case and we are just adding to the publicity issue by keeping him in jail".

He said that a refusal to comply with the court order does not automatically mean that you are to stay in prison, and he was released.

Mr Burke, I think, described it as a Christmas gift and one that he didn't want, but he was released. And as we sit here today, Mr Burke is still flouting the orders by attending the school. And he's being fined €700 a day.

It's a very, very interesting case from an employment law perspective insofar as how do you enforce an order of court when the person against whom the order is made does not want to comply with the order?

We had, I think, a very strange situation where Mr Burke then sought injunctive relief from the High Court in relation to the disciplinary proceeding, and that was in January of this year.

And the High Court . . . I'm not going to say sympathetic, but Mr Burke did have some legal arguments to make which could possibly ground an injunction. But the High Court said, "In circumstances where he's not complying with the court order, he cannot come to this case with the classic clean hands". If you are looking for an equitable relief, you have to have clean hands, and Mr Burke doesn't have clean hands because he is disregarding a court order.

So if it suits him to get a court order, he will comply. But if it doesn't, he won't. And the High Court said, "We simply cannot . . ." Amongst other things, but one of the messages was, "We simply cannot grant you an injunction almost no matter how compelling your case may be in circumstances where you are flouting an existing court order".

So I just wanted to mention that case. It's one to watch. It doesn't look like it's going to go away any time soon. It's quite an emotive, volatile issue. But I think if one just steps back and looks at this dispassionately from an employment law perspective, it is quite fascinating.

So look, that's a very whistle-stop tour in 45 minutes. And as Laura said at the beginning, I'm happy to take any questions.

Laura:  Brilliant. Thank you so much, Duncan. And that's exactly 11:45 on the dot, so very impressed with getting through those 10 cases in that time and for giving us a really comprehensive overview.

Folks, if you do have any burning questions, please drop them into the question box, which should be on the right-hand side of your screen.

Yes, Duncan, on the Enoch Burke case, I don't think we've heard the end of that one yet. So thank you for covering that today.

There's just a comment here. I think your line may have dropped when you were discussing the Gerard McVeigh and Dunnes Stores case. Could you just give us an overview again of what the WRC's decision was there? I think some people may have missed that.

Duncan:  Sorry. And I said to Laura at the beginning just before we came on screen about the technology. I am not a fan of technology when it comes to these things, so I apologise if I did drop out. I have no idea when I'm dropping out. It could be just Laura and I having a chat here.

Look, the McVeigh decision simply is this. If there are circumstances outside of your employment which bring the company into disrepute, and you have a policy which talks about bringing the company into disrepute, you can look at that circumstance and see if it warrants a disciplinary sanction up to and including dismissal.

In the case of Mr McVeigh, I don't even know what the offence is, but it was in contravention of the Sexual Offences Act. So reasonably serious.

Dunnes Stores, very conservative company. And they said, "You are bringing us into disrepute". Mr McVeigh refused to cooperate with the investigation process. He was ultimately dismissed. He went to the WRC. His complaint was, as you would expect, all about process. "I didn't know it was that serious. Never had a right of representation. I didn't know I was going to lose my job".

And the WRC said the decision of Dunnes Stores was ultimately within the reasonable bounds of what an employer could do. And the fact that Mr McVeigh did not cooperate needs also to be taken into account of process. So he was unsuccessful.

But the takeaway I just wanted to give people is don't run off and think just because someone does something naughty outside work that you can sack them. It's very fact-specific. It has to be of a magnitude which is warranted, such as things like . . . I have cases that I have been involved in involving child pornography, fraud not related to work, but fraud outside of work, social welfare fraud, a whole bunch of issues.

Laura: Yeah. So it seems that that case is very fact-specific, but in a way, do you think it gives more scope to employers to look at conducting a disciplinary procedure for something that happens, some misconduct that happens outside of the workplace?

I'm just thinking of something like if somebody's working from home and an assault happens within the home, or something happens, say, at a work Christmas party, do employers have . . . can they look at misconduct that happens there and conduct . . . even though it's not happening in the actual workplace?

Duncan:  Absolutely. I mean, it's always a very busy time for employment lawyers, December and January, dealing with workplace Christmas parties or work Christmas parties. Where does the work stop and where does it start? A Christmas party, does it stop when everyone leaves the venue, or does it stop when everyone goes home and wakes up the next morning?

Employers have obligations to employees, and I think the law is certainly getting a broader concept of the workplace for the purposes of those types of issues.

I think the problem with activity outside of work, which is potentially misconduct or whatever, I think where it gets difficult is how you investigate that in terms of being able to investigate it when it's not actually in the workplace. But also, as I said, just putting some sort of parameter around "What is the workplace and when does your obligation start and stop?"

So for example, I had a case involving . . . there was a staff . . . It started at the office, it went to a pub, and then there was an allegation of sexual assault even after the pub. So on that continuum, where is the employer out of the picture? That's a really difficult one.

So the decision was made at no stage was the employer out of the picture, because the ultimate event was between two work colleagues. There were always two work colleagues throughout this continuum, so the employer took it upon themselves to investigate everything, which was the right thing to do. But where does it stop? That's the difficult issue.

Laura: Very difficult to define what the boundaries are there with work and outside of work.

We're getting some questions here just on fixed-term contracts. So going back to that very first case, Maurice Power v The HSE, someone's question here, "On fixed-term contracts, if a contract has not been renewed or terminated at the end of the first contract and the employee continues to work, what is their employment status?" So they're looking . . . Yeah, go ahead.

Duncan:  I was going to say I'd certainly be arguing they're on a contract of indefinite duration. The legislation is pretty clear that prior to the expiration of the contract, you need to do certain things. And if you don't do those certain things and the person goes over the contract, they are on a permanent contract on the terms and conditions, with the exception of the provision which says, "This is a fixed-term contract". So I think it's a fairly compelling argument to say they're on a permanent contract.

Laura: So it seems that's going to be really important for employers just to keep regularly reviewing where they're using fixed-term contracts, and this piece about objectively justifying renewing a fixed-term contract. Do we have any guidance on what objective justification looks like? Or is that just something we're picking out of thin air?

Duncan:  So in the paper, I've given some tips as to what objective justification is. So it's things like . . . we talk about things like succession planning, health and safety. They're reasonably amorphous.

I always find it interesting just because someone comes to the end of contract, why isn't that contract renewed? And why are you not employing someone else into that particular role? Succession and stuff like that is more on retirement, but that still involves fixed-term contracts as well.

But why is it a fixed-term contract? Is it the fact that the need for the fixed-term nature of the contract has come to an end? So you are employing someone for a fixed term because it's maternity leave come up. You've built a bridge, the bridge is built. There's got to be a reason and you're not just trying to circumvent permanent employment.

Laura: And presumably, a prudent employer would have something in writing, something backed up by documentation with their objective justification.

Duncan:  Yeah. And you need to do it. Section 8 of the act talks about you need to tell the employee prior to the expiration of the fixed-term contract why it's not going to be a contract of indefinite duration. That's if you're renewing. And if you're terminating, you would need objective justification. Absolutely, you'd need to record why it's objectively justifiable.

By the time someone . . . they have six months to make a complaint. It may take six months for a complaint to come to the WRC. You've forgotten potentially what the objective justification was. Absolutely a good tip, Laura.

Laura: Yeah. So just some questions coming in on the Isaac Wunder order. Good question here about whether that would be an order for the Wilson's Hospital case potentially.

Duncan:  That's a really, really good question. And the answer is going to be no, because he's not bringing cases. He's just not complying with court orders. So it's a different scenario.

It's not as if he's a serial user of the system. He has been the subject. So he was the defendant. Isaac Wunder Orders are only ever going to be against plaintiffs, right? And I know he's taken some cases, but he's not frivolous or vexatious. As I said, he has some reasonable legal arguments for his injunction application, but because he hadn't complied with the previous order, they weren't going to give it to him.

So it is only plaintiffs who keep coming and repackaging issues. He simply is not complying.

And I think really interesting issue there is what do you do with someone who won't comply? You can't leave them in jail. You can't keep finning them. I don't know, but I would imagine Mr Burke has no assets. He has no income. He has no job, so they can't garnish his wages. He's living at home. So what is the point of a €700-a-day fine?

Laura: Yeah. So presumably he's not paying that at the moment. It's just adding up.

Duncan:  As far as I know, he's not going to pay it. He wouldn't pay it unless he's got some backer, some funding somewhere. And even then, whether that's accessible to sequestrate or to obtain, I don't know. So I think the bigger issue is what do you do with someone who's not going to comply?

Laura: Yeah. And just on the Isaac Wunder Orders, like you were saying, it has to be a continued campaign and it's a really high bar. Is that something you would apply through the civil courts? It's not the WRC that's going to be making a decision on that. Is that correct?

Duncan:  Correct. Yeah. The WRC is a statutory body. They don't have the power to make an Isaac Wunder Order. It has to be one of the superior courts who'd make that order.

Laura:  And I suppose do we know how many complaints are too many? Or is that something the courts would decide?

Duncan:  You'd often think you'd know because you have some litigants who . . . And it's always a lay litigant, to be fair. Not wanting to take anything against lay litigants, but . . .

I have a couple of cases where the company has left Ireland and has left Ireland for about 15 years. And there is a post box here. It's a big European company. But this one employee keeps going, keeps going. And there are costs orders to beat the band against him, but he just keeps going.

And one of the reasons he keeps going is he had success on one occasion, which was 15 years ago. But is the client going to spend that much money going for an Isaac Wunder order? Probably not. I don't know.

But it's very hard to determine how much is too much, which makes you think Ms Morgan must have really pushed the boat out in terms of the number of cases that she's taken against Kildare and Wicklow Education Training Board.

Laura: So it's very effective, but probably very expensive as well to go through the process of getting . . .

Duncan:  Yeah, because you do have to go to the superior court. So this is a WRC Mickey Mouse, no-cost jurisdiction case that ends up in the High Court. I mean, every citizen in Ireland has a right to go to the superior courts within the reason. So from the WRC points of law and all that good stuff, they have a right. No matter how unmeritorious that right is, they have a right to do that. Unless they do it repeatedly and repackage issues, then it's just going to happen. They keep lawyers employed.

Laura: Absolutely. We have another kind of very interesting question on the Hennessy v Ladbrooks case. It seems to me that the compromise and waiver agreements, settlement agreements in Ireland, they tend to maybe be moving in the UK direction where you have to get legal advice for the agreement itself to be enforceable. I know we're not quite there, but from that decision it seems it's imperative that the employee does get legal advice before they sign.

Just a question on how much time should employers give employees to get legal advice if they're just refusing to get it, you're giving them an opportunity to get it? Is it a day? Is it a couple of days? What kind of timeframe would you be looking at?

Duncan:  I always say five working days, because you just need to get a hold of a lawyer. That's a rule of thumb. As I said, you can't make them take legal advice, but you have to give them the opportunity.

And even to say the compromise agreement, the employee has been given the opportunity but has declined to take legal advice. So it's not just the opportunity. I think you need to go further.

The UK, as you said, Laura, there are certificates that you have to sign. Not the case in Ireland. But this is testament to the fact that unless you get legal advice, it's going to be hard to rely on the agreement.

But the big mistake in that case, of course, was the fact that they said she had and she hadn't. It's just wrong.

So look, of course I say that because I'm a lawyer, but you do need to take legal advice on agreements.

Laura: And I suppose there are some things maybe an employer can do, could give recommendations of employee solicitors, or even pay a contribution towards the fees. That's something that they could do to encourage employees to get the legal advice.

Duncan:  Yeah. So I always say to clients, "You need to make a contribution to the legal cost". You do. And again, the only way you're going to get proof that they've got legal advice is if you discharge the fee or a contribution to the fee and the lawyer sends you their invoice. Then you know they've got legal advice.

Laura: Yeah, absolutely. Just one final question on the Karshan case. Really interesting that it's going all the way to the Supreme Court now. And we'll await that decision.

Obviously, there are going to be huge tax implications there. But from an employment law perspective, at the moment, if employers are worried that their independent contractors could claim that they are employees, does that mean, if they found that they were employees, that they'd be entitled to all the employment rights that a normal employee would be entitled to, such as holiday pay?

So if employers have concern about that at the moment, is there anything they should be doing? Or is it just kind of look, wait, and see what happens with the Supreme Court?

Duncan:  Yeah, there's always the element of do you really want to poke the bear here? If you've got a great relationship with your independent contractor . . . Well, let's call them an independent contractor. And then you say, "I'm not sure you're an independent contract. We'll need to regularise that", there's risk. Be careful what you wish for. All these types of expressions. Poking the bear. Do you really want to do that?

So it's just a call you're going to have to make, and depending on the numbers of people you've got. But for example, you get a tax audit that could cause you difficulties. There are obviously back tax fines/penalties associated with incorrectly categorising and so on.

And then you have things like . . . We have legislation on the blocks, or not quite on the blocks yet, but about bogus self-employed, all that sort of stuff, which may ultimately result in a criminal prosecution if you are taking people on as independent contractors when they are really in fact employees.

You have the way it's going in the UK, which is more to the worker as opposed to the employee. So the Uber case, all that good stuff that's going on there, which is going the other way from the Karshan case, which is finding these people to be employees, not to be independent contractors.

Which is why I think it is quite an unusual case. Interesting to see what the Supreme Court does. I certainly think the pendulum is going to categorising people like Domino's Pizza drivers as workers, and then it's only a short step there to employee.

Laura: Yeah, very interesting. Well, look, I think we'll have to leave it at that there, folks. Thank you very much, Duncan, for taking us through all those cases, and hopefully we'll see you again in November for our Annual Review. You won't want to miss that.

I know some people are looking for a recording of this webinar. That will be available. All of the notes and slides will also be available, so keep an eye out for the email that will come post-webinar.

And don't forget to take advantage of the free trial of the Employment Law Hub.

Thank you so much, everybody, for listening, and we'll see you next time. Take care.

Duncan:  Thank you.

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