High Court of Ireland Decisions

Judgment Title: Minister for Agriculture & Food -v- Barry & Ors

Neutral Citation: [2008] IEHC 216


High Court Record Number: 2007 334 SP

Date of Delivery: 07 July 2008

Court: High Court

“ …the courts should be slow to interfere with the decisions of expert administrative tribunals. Where conclusions are based upon an identifiable error of law or an unsustainable finding of fact by a tribunal such conclusions must be corrected. Otherwise it should be recognised that tribunals which have been given statutory tasks to perform and exercise their functions, as is now usually the case, with a high degree of expertise and provide coherent and balanced judgments on the evidence and arguments heard by them it should not be necessary for the courts to review their decisions by way of appeal or judicial review.”

“The respondents submit that the matters determined by the Labour Court were largely questions of fact and that matters of fact as found by the Labour Court must be accepted by the High Court in any appeal from its findings. As a statement of principle, this is certainly correct. However, this is not to say that the High Court or this court cannot examine the basis upon which the Labour Court found certain facts. The relevance, or indeed admissibility, of the matters relied on by the Labour Court in determining the facts is a question of law. In particular the question of whether certain matters ought or ought not to have been considered by the Labour Court and ought or ought not to have been taken into account by it in determining the facts, is clearly a question of law, and can be considered on an appeal under s. 8(3).”

“The judgment of the appeal tribunal in this case suggests that there is a difference of judicial view as to whether the question ‘Is a contract a contract of employment or a contract for services?’ is a mixed question of fact and law or a question of law, but I do rather doubt whether the triple categorisation of issues as ‘fact’ ‘law’ and ‘mixed fact and law’ is very helpful in the context of the jurisdiction of the appeal tribunal.

The appeal tribunal is a court with a statutory jurisdiction. So far as is material, that jurisdiction is limited to hearing appeals on questions of law arising from any decision of, or arising in any proceedings before, an industrial tribunal: s.136 (1) of the Employment Protection (Consolidation) Act 1978. If it is to vary or reverse a decision of an industrial tribunal it has to be satisfied that the tribunal has erred on a question of law.

Whilst it may be convenient for some purposes to refer to questions of "pure" law as contrasted with "mixed" questions of fact and law. the fact is that the appeal tribunal has no jurisdiction to consider any question of mixed fact and law until it has purified or distilled the mixture and extracted a question of pure law.

The purification methods are well known. In the last analysis all courts have to direct themselves as to the law and then apply those directions in finding the facts (in relation to admissibility and relevance) and to the facts as so found. When reviewing such a decision, the only problem is to divine the direction on law which the lower court gave to itself. Sometimes it will have been expressed in its reasons, but more often it has to be inferred. This is the point of temptation for the appellate court. It may well have a shrewd suspicion, or gut reaction, that it would have reached a different decision, but it must never forget that this may be because it thinks that it would have found or weighed the facts differently. Unpalatable though it may be on occasion, it must loyally accept the conclusions of fact with which it is presented and, accepting those conclusions, it must be satisfied that there must have been a misdirection on a question of law before it can intervene. Unless the direction on law has been expressed it can only be so satisfied if, in its opinion, no reasonable tribunal, properly directing itself on the relevant questions of law, could have reached the conclusion under appeal. This is a heavy burden on an appellant. I would have thought that all this was trite law, but if it is not, it is set out with the greatest possible clarity in Edwards v. Bairstow, [1956] AC 14.”

“There is no doubt that there are pure questions of law which throw a court back to questions of fact. The most obvious example is what length of notice is required to terminate a contract which does not expressly make provision for termination. This is a pure question of law and the answer is ‘Such time as is reasonable in all the circumstances.’ Applying that direction to facts whose nature, quality and degree are known with complete precision will no doubt always produce the same answer. But this is not real life. In reality every tribunal of fact will find and assess the factual circumstances in ways which differ to a greater or lesser extent and so can give rise to different conclusions, each of which is unassailable on appeal. In this sense, but in this sense alone, their conclusions are conclusions of fact. More accurately they are conclusions of law which are wholly dependent upon conclusions of fact.

The test to be applied in identifying whether a contract is one of employment or for services is a pure question of law and so is its application to the facts. But it is for the tribunal of fact not only to find those facts but to assess them qualitatively and within limits, which are indefinable in the abstract; those findings and that assessment will dictate the correct legal answer. In the familiar phrase ‘it is all a question of fact and degree.’”

“The above-entitled claims have been instituted pursuant to the Redundancy Payments Acts, 1967-2007 and pursuant to the Minimum Notice and Terms of Employment Acts, 1973-2001. All five of the respondents are qualified Veterinary Surgeons and all of them worked as Temporary Veterinary Inspectors (“TVI’s” or in the singular “TVI”) for the appellant, in the Galtee Meat Processing Plant, in Mitchelstown, County Cork, which said Plant closed in October 2004, resulting in the termination of the respondents’ employment with the Appellant.

The respondents lodged claims with the Employment Appeals Tribunal on 21 April 2005. It is the contention of the respondents, that they worked under a “contract of service” for the appellant, and they are entitled to redundancy payments, as well as payments pursuant to the Minimum Notice and Terms of Employment Acts, 1973-2001. The appellant entered an Appearance on 3 June 2005. The appellant contends that the five respondents who worked as TVI’s were engaged by the Appellant at meat plants on a “contract for services” basis (i.e. contractors) to assist the Appellant’s full-time veterinary staff at the plants, as an integral part of the appellant’s Meat Inspection Service (MIS).

The appellant has asserted that this was reflected in the fact that the TVI’s were private veterinary practitioners who were also in business on their own account, and that they could and did continue in private practice alongside undertaking TVI work for the appellant. It is accepted that four out of the five respondents worked as Veterinary Surgeons in private practices. The appellant has accepted that the remuneration, which was paid to the respondents, was paid on an hourly fee basis at rates which were fixed at intervals between the appellant and the respondents’ Union, namely Veterinary Ireland. Veterinary Ireland is a Trade Union, affiliated to the Irish Congress of Trade Unions (ICTU). The appellant was the only potential employer of TVI’s as the appellant is the only body with the requirement of the services of TVI’s in Ireland.

The respondents are all members of the Trade Union, Veterinary Ireland. One of them was the Union Shop Steward at the Mitchelstown plant. Examples of the Union raising the question of the TVI’s status over many years were cited to the Employment Appeals Tribunal, and evidence was given that the appellants ‘generally shun it and say no’.

The general lack of clear legal definitions on employment status for many years led to considerable confusion. The situation, however, was regularised in 2001 with the publication of a Code of Practice, arising from the Report of the Employment Status Group, established under the Programme for Prosperity and Fairness (PPF). Represented on this Group were Department of Finance, IBEC, ICTU, The Department of Social and Family Affairs and The Revenue Commissioners.

This Report sets out an extensive check-list of criteria to be used in determining whether an individual is an employee. As was presented in evidence to the Employment Appeals Tribunal, analysis of the criteria established by this key Employment Status Group indicated clearly that TVI’s fit into the “Employee” category under each and every relevant heading.

The Appellant and the Irish Veterinary Union (an earlier name for Veterinary Ireland) negotiated and provided the respondents, and all TVI’s nationwide, with written conditions, in respect of the Operation of TVI Panels in January 1999. On appointment by the Appellant, each TVI was provided with “Conditions of Engagement of Part-Time Temporary Veterinary Inspectors” (the “Conditions”), which were subsequently updated at various times up to June 2004 (See Exhibit A).

All of the respondents were TVI’s. In order to become a TVI, each respondent had to apply for approval from the appellant. Once Departmental approval had been granted, each respondent had to then complete a two week training course in meat inspection, at his or her own expense. He/She then applied in writing to the appellant’s Personnel Division for inclusion in a TVI panel or panels at one or more of the meat factories. It was pre-determined that a TVI could not be listed on more than four panels at any one time, and that the TVI could only hold one regular shift.

Functions of TVI’s
The Conditions set out the functions of a TVI as follows:
“The functions of the TVI’s are to assist the permanent veterinary staff at meat plants. The TVI’s will be assigned to and perform these functions by direction of the VI at the meat plant. The VI has overall responsibility for setting the manning levels (i.e. the number of TVI’s required (1) to cover the inspection points in the slaughter hall and (2) to be engaged during the day for ante-mortem duties), for the control and monitoring of meat inspection operations and ensuring that TVI’s perform their allocated duties satisfactorily.”
Reporting Structure:

Personal Protective Equipment (“PPE”) and Materials – Investment in the Enterprise:

Hours of Work:

Absence from Panels – Disciplinary Action:

cases notice must be given to the VI at the meat plant);

“…in the case herein the five TVI’s have an implied agreement reached with the Department of Agriculture & Food and the TVI’s to carry out inspection of meat and certification of same on behalf of the Department of Agriculture & Food on an ongoing basis, hence the majority finds there is mutuality of obligation.”

“Although I, like the appeal tribunal, am content to accept the industrial tribunal's conclusion that there was no overall or umbrella contract, I think that there is a shorter answer. It is that giving the applicants' evidence its fullest possible weight, all that could emerge was an umbrella or master contract for, not of, employment, It would be a contract to offer and accept individual contracts of employment and, as such, outside the scope of the unfair dismissal provisions.”

“Prima facie that which in any contract is left to be implied and need not be expressed is something so obvious that it goes without saying; so that, if while the parties were making their bargain, an officious bystander were to suggest some express provision for it in their agreement, they would testily suppress him with a common ‘Oh, of course’.”

“The second stage of the test in the process requires a determination as to whether the contract binding the parties is one of service or one for service. The fundamental test for determining this question was set down in the English decision of Market Investigations v. Minister for Social Welfare (1969) 2 QB 173. Here it was held that the Court should consider if the person was performing the service as a person in business on his own account. If the answer to that question is yes then the contract is one for service. If the answer is no then the contract is one of service.

This approach was adopted in this jurisdiction by the Supreme Court in the case of Henry Denny & Sons (Ireland) Ltd v. Minister for Social Welfare, [1998] 1 IR 34”

“Following the decision in the Supreme Court in the case of Henry Denny & Sons (Ireland) Ltd v. Minister for Social Welfare and Tierney v. An Post there is now a single composite test for determining if a person is engaged on a contract of service or a contract for service. It involves looking at the contract as a whole and asking is the person in business on his or her own account? If the answer is yes then the contract is one for service. If the answer is no then the contract is one of service.

The question of control and integration should no longer be regarded as conclusive tests in themselves but as elements to be taken into account in applying the enterprise test.”

“The criteria which should be adopted in considering whether a particular employment, in the context of legislation such as the Act of 1981, is to be regarded as a contract "for service" or a contract "of services" have been the subject of a number of decisions in Ireland and England. In some of the cases, different terminology is used and the distinction is stated as being between a "servant" and "independent contractor".However, there is a consensus to be found in the authorities that each case must be considered in the light of its particular facts and of the general principles which the courts have developed: see the observations of Barr J., in McAuliffe v. Minister for Social Welfare [1995] 2 I.R. 238.

At one stage, the extent and degree of the control which was exercised by one party over the other in the performance of the work was regarded as decisive. However, as later authorities demonstrate, that test does not always provide satisfactory guidance. In Cassidy v. Ministry of Health [1951] 2 K.B. 343, it was pointed out that, although the master of a ship is clearly employed under a contract of service, the owners are not entitled to tell him how he should navigate the vessel. Conversely, the fact that one party reserves the right to exercise full control over the method of doing the work may be consistent with the other party being an independent contractor: see Queensland Stations Property Ltd. v. Federal Comissioner of Taxation [1945] 70 C.L.R. 539.

"The observations of Lord Wright, of Denning L. J. and of the judges of the Supreme Court suggest that the fundamental test to be applied is this: 'Is the person who has engaged himself to perform these services performing them as a person in business on his own account?'. If the answer to that question is 'yes', then the contract is a contract for services. If the answer is 'no', then the contract is a contract of service. No exhaustive list has been compiled and perhaps no exhaustive list can be compiled of considerations which are relevant in determining that question, nor can strict rules be laid down as to the relative weight which the various considerations should carry in particular cases. The most that can be said is that control will no doubt always have to be considered, although it can no longer be regarded as the sole determining factor; and that factors which may be of importance are such matters as whether the man performing the services provides his own equipment, whether he hires his own helpers, what degree of financial risk he takes, what degree of responsibility for investment and management he has, and whether and how far he has an opportunity of profiting from sound management in the performance of his task."

“7.6 … at what it described as the second stage of the process, the EAT applied an incorrect test to establish the existence of a contract of service/contract for services.

7.7 Contrary to what is expressly stated in its decision, the so-called enterprise test is not determinative of the issue. That conclusion appears to be grounded in a misconstruction of the passages from the judgment of Keane J in Henry Denny & Sons (Ireland) Ltd v. Minister for Social Welfare [1998] 1 IR 34 set out at paragraph 5.2, above. Moreover it is incorrect to assert that questions of control and integration are to be regarded merely as elements to be taken into account in applying the enterprise test.

7.8 Far from relying principally upon what the EAT describes as “the enterprise test”, that described by Keane J contains the following four elements at least:

“Redmond, in her book, ‘Dismissal Law in Ireland’, 2nd Edition, 2007, sets out at Page 35 that “In Ireland the criterion traditionally applied by the Civil Courts to determine the relationship of employee was that of control, whereby the subordinate nature of the relationship is regarded as central to the contract of employment: Roche. v. Kelly & Co., Limited, [1969] I.R. 100”.
Redmond sets out that the ‘control test’ then gave way to the so-called ‘integration test’ which asked “Did the servant form part of the alleged master’s organisation?”. She sets out that likewise, this failed to provide a clear answer and a ‘mixed test’ was then developed. Redmond sets out that “This is applied in two stages. The first question to ask is whether there is control. This is a necessary but not a sufficient test. It must then be determined whether the provisions of the contract are consistent with it’s being a contract of service. There may be indications, for example, that a worker is an entrepreneur rather than an employee. In this event the fundamental test to be applied is whether the person who has engaged himself to perform particular services is in business on his own account”. Having reviewed the case law, Redmond concludes at Page 40, that “Each case must depend on its own facts”.

“It is, accordingly, clear that, while each case must be determined in the light of its particular facts and circumstances, in general a person will be regarded as providing his or her services under a contract of service and not as an independent contractor where he or she is performing those services for another person and not for himself or herself. The degree of control exercised over how the work is to be performed, although a factor to be taken into account, is not decisive. The inference that the person is engaged in business on his or her own account can be more readily drawn where he or she provides the necessary premises or equipment or some other form of investment, where he or she employs others to assist in the business and where the profit which he or she derives from the business is dependent on the efficiency with which it is conducted by him or her.”

“This conclusion is open to criticism. It adopts what Cooke J in Market Investigations v Minister of Social Security, (1969) 2 QB 173, 184G had called 'the fundamental test'. Megaw and Browne L.JJ had found that test 'very helpful' in Ferguson v John Dawson & Partners (Contractors) Ltd [1976] 1 WLR 1213. In Young & Woods Ltd v. West [1980] IRLR 201 I adopted it and Ackner L.J., at p.208, obtained much assistance from it. But to accept it as the 'fundamental' test is I think misleading, for it is no more than a useful test. Furthermore, it can only be applicable at all where there is nothing but a choice between the two kinds of contract, of service or for services. Here the form of the preliminary issue made the test apposite, though not fundamental; but, as I have indicated, it ruled out the question whether on the evidence there was a third kind of contract or even no contract at all, which would be as effective to deprive the industrial tribunal of jurisdiction as a contract for services.”

“I do, however, for my part, find the use of the word 'fundamental' somewhat misleading. In some cases, as for instance, with a jobbing gardener or a carpenter or a music teacher, who is found to be carrying on the activities in question for several customers or clients as part of his or her own business, the test may be very helpful indeed, but in many other cases the answer to the question whether the person concerned is carrying on business on his or her own account can only come as the corollary of the answer to the question whether he or she was employed under a contract of service. I note that in the Market Investigations case Mr Justice Cooke had referred to a statement by Lord Wright in Montreal v. Montreal Locomotive Works Ltd, (1947) 1 D.L.R. 161, 169 that

‘ . . . it is in some cases possible to decide the issue by raising as the crucial question whose business is it, or in other words by asking whether the party is carrying on the business, in the sense of carrying it on for himself or on his own behalf and not merely for a superior’.

It is important to have in mind that each case must depend on its facts, and the same question, as an aid to appreciating the facts, will not necessarily be crucial or fundamental in every case.”

“…., while each case must be determined in the light of its particular facts and circumstances, in general a person will be regarded as providing his or her services under a contract of service and not as an independent contractor where he or she is performing those services for another person and not for himself or herself.” (my emphasis)

1. They were incorrect in their belief that the Supreme Court in Henry Denny & Sons (Ireland) Ltd v. Minister for Social Welfare approved “a single composite test”;

2. They were incorrect in regarding the so-called enterprise test as determinative of the issue. It was not necessarily going to be determinative of the issue, and they were wrong in proceeding on the assumption that it would be. In the circumstances of the case it might legitimately have been applied as an aid to the drawing of appropriate inferences, and it was likely to be useful in that regard, but they were incorrect to apply it in a formulaic way for the purpose of determining the issue;

3. It was incorrect to assert that questions of control and integration are to be regarded merely as elements to be taken into account in applying the enterprise test. They are not. Like the question of enterprise, questions of control and integration may also provide a court or tribunal with valuable assistance in drawing the appropriate inferences. All potential aids to the drawing of the appropriate inferences from the primary facts as found stand in their own stead, and no one is subsumed by another. Moreover, those mentioned do not represent an exhaustive list. There could be other factors that might also assist. However, depending on the circumstances of the particular case, some aids may prove more helpful or more useful than others. In the words of Dillon L.J., “the same question, as an aid to appreciating the facts, will not necessarily be crucial or fundamental in every case”. It is for a court or tribunal seized of the issue to identify those aids of greatest potential assistance to them in the circumstances of the particular case and to use those aids appropriately.