Supporting Documents:
 55-2019 Resp Notice.Web.pdf 055-2019.AFL.Web.doc
An Chúirt Uachtarach
The Supreme Court
DETERMINATION
TONYA MARTIN APPLICANT AND
THE MINISTER FOR SOCIAL PROTECTION
RESPONDENT
APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.3° OF THE CONSTITUTION APPLIES
RESULT: The Court does not grant leave to the Applicant to appeal to this Court from the Court of Appeal
REASONS GIVEN:
ORDER SOUGHT TO BE APPEALED
| COURT: Court of Appeal |
DATE OF JUDGMENT OR RULING: 19th February, 2019 |
DATE OF ORDER: 5th March, 2019 |
DATE OF PERFECTION OF ORDER: 5th March, 2019 |
THE APPLICATION FOR LEAVE TO APPEAL WAS MADE ON 26th March, 2019 AND WAS IN TIME. |
1. This determination concerns a decision of the Court of Appeal of 19 February 2019 ([2019] IECA 22), which upheld a decision of the High Court handed down on 31 May 2017([2017] IEHC 361). The Court of Appeal affirmed the dismissal of the applicant’s judicial review proceedings against the respondent Minister. It is in respect of this judgment that the applicant now seeks leave to appeal.
2. Having been unemployed for a period of 12 months, the applicant received a letter from Tolka Area Partnership informing her that she had been selected by the department of social protection to take part in the Tús Programme. These proceedings arise from an incident involving the applicant that occurred on 25 February 2016 which involved “violent of threatening behaviour [and] malicious mischief resulting in danger to fellow employees or other persons or danger to r destruction of the organisation’s property or equipment.” A disciplinary meeting was called at which the applicant denied the allegations, and the meeting was put back to 7 March 2016 so that she could prepare a written account of the incident. She was somewhat late for the meeting. She was notified in a letter from the partnership dated 8 March 2016 of the decision to dismiss her, which stipulated that there was a right to appeal the decision within three working days. As the applicant did not receive this letter until 11 March 2016, outside of the three-day period, she had no opportunity to lodge an appeal. She was informed by a letter of 15 March that, as she had not appealed, her employment with the Tús programme would cease on 18 March 2016. She received a letter on the same date stating she would no longer receive jobseekers’ allowance as she had lost her job through her own misconduct.
3. The applicant was granted leave to bring judicial review proceedings to challenge the decision to dismiss her, but named the Minister for Social Protection and not the Tolka Area Partnership as the respondent to the proceedings. She alleged that the Minister had failed to provide a suitable process during the disciplinary hearing and that the Minister was responsible for the decision of the private employer to dismiss the applicant. No comment as to the fairness of the procedure leading to the dismissal of the applicant was made in the High Court or the Court of Appeal, and nor will any adjudication in that regard be made in this determination. Instead, this matter turns on whether the correct respondent in these proceedings is the partnership or the Minister, and therefore whether the decision to dismiss the applicant is amenable to judicial review proceedings.
4. The applicant’s judicial review was heard by Binchy J in the High Court and the resulting judgment was handed down on 31 May 2017. In brief, Binchy J found that the decision to dismiss the applicant was made by the partnership, a private employer, and not by the respondent. The Court held that the responsibility for the administration of the schemes and for all matters regarding employment lay with the partnership, and the respondent merely funded the schemes. The Court held that due to the private contract of employment between the applicant and the partnership, this matter was a private law dispute and therefore could not be the subject of judicial review proceedings. The applicant appealed to the Court of Appeal, where Peart J in a judgment of 19 February 2019 upheld the findings of the High Court. The salient paragraphs of his judgement merit reproduction:
33 … Like the trial judge, I too am satisfied that the impugned decision taken by the Partnership to remove the appellant from the programme for stated misbehaviour is a decision that cannot be imputed to the Minister on the basis that the Partnership was in effect and/or as a matter of law the agent of the Minister. I fully appreciate that in its own terms the programme was a government initiative for the benefit of the long-term unemployed, and that it is funded by the Minister. But in my view that is not sufficient, even if one aggregates the other matters to which the appellant has referred in relation to the Conditions and Rules contained in the Tús – Community Work Placement Initiative document to which the Court has been referred. The executive arm of the State reaches deep into society in so many different ways through bodies of one kind or another that receive funding from central government in order to perform their tasks. The respondent gave the area of education as an example where, in fulfilment of its duty under Article 42.4 of the Constitution, the State is required to provide for free primary education, and that it does so, inter alia, by the provision of funding for teachers” salaries, yet the teachers in question are engaged by Boards of Management on foot of private contracts entered into between the teacher and the Board of Management of a particular school. It is not the case that where such a teacher is dismissed by the Board of Management there is a cause of action against the Minister, whether by way of judicial review of the decision to dismiss him or her, or otherwise. The Board of Management is in no way the agent of the Minister. That, in my view, is an apposite example.
34 Another example of such arrangements that was referred to in the course of the argument before this Court concerns the Courts Service and its staff. That service receives funding from central government in order to provide for the administration of justice in the State. If some administrative decision is made which is sought to be judicially reviewed (leaving aside the question of whether it is public law or private law) the Courts Service and not the Minister for Justice and Equality will be the appropriate respondent to be named in the proceedings. Similarly, in the present case it is the Partnership with whom the appellant entered into her contract of employment, and it is the Partnership that made the decision to remove her from the Tús programme. In my view the trial judge was correct to conclude that ‘the mere fact that the respondent has a significant oversight role in relation to the administration of the Scheme, and provides funding for the Scheme, does not and could not serve so as to treat a decision of the Partnership as though it were as a matter of law, a decision of the respondent’.
35 Furthermore, I do not accept, as is contended for in the appellant's notice of appeal, that the trial judge ‘gave undue weight to the fact that the appellant's contract of employment was with the Scheme and not the Respondent in the particular circumstances of the case’. He was correct to rely upon the existence of that contract of employment, and to reject the contention that the particular circumstances of the case, such as the nature of the back to work scheme, its funding by the respondent, and the respondent's other links to the scheme, were sufficient to create a relationship of agency between the Partnership and the Minister, such that the Minister should be seen as the principal in the relationship to the appellant, and therefore the appropriate respondent in these proceedings. The appellant could have named the partnership as the respondent, but clearly, for some reason that has not been explained, chose not to do so. Equally, the appellant might have sought to challenge the Minister's decision dated 15th of March 2016 to disqualify her from receiving the payment for nine weeks, in which case clearly the Minister would have been the appropriate respondent. But it was not open to the appellant to seek to impugn the decision of the Partnership in proceedings in which only the Minister is named as a respondent. In my view the trial judge was correct to so decide.
36 I would also uphold the trial judge's conclusion that the decision by the Partnership is in the realm of private law and not public law, and as such, is not amenable to challenge by way of judicial review, even if the Partnership had been the named respondent. The present case is to be distinguished from those other cases to which the Court has been referred by the appellant, where certain decisions were found to be in the realm of public law, notwithstanding that they were decisions made by private bodies such as the Turf Club, the Institute of Chartered Accountants, and Tipperary (South Riding) County Council, or on foot of a contract of employment between a trainee garda and the Commissioner of An Garda Síochána.
5. Statements in the last paragraph as to the applicability of public law are obiter. In any event this Court has dealt with that point in Shatter v Guerin [2019] IESC 9. The applicant now seeks leave to appeal to this Court. In arguing that her case raises points of general public importance, the applicant notes that the effect of the decision of the Court of Appeal is that the respondent Minister can outsource the administration of departmental schemes to private companies. Decisions taken in the scope of administering these schemes can result in a loss of statutory entitlements by participants to those schemes, as occurred in this case. She alleges that the decision effectively grants the Minister an immunity from judicial scrutiny as to the way schemes funded by the public purse are managed by private companies, and as to decisions taken by private companies operating these schemes that result in a loss of statutory entitlements. This, she claims, amounts to a delegation of public functions and responsibilities to private companies and thereby avoids the possibility of oversight by means of judicial review. Given the thousands of jobseekers on similar work placement initiatives, it is a matter of great public importance if individuals who suffer a breach of fair procedures due to a decision made by an agent of the Department, as opposed to the Department itself, may not pursue public law remedies. She further claims that the appeal is necessary in the interests of justice as her sight lapse in promptitude before the disciplinary hearing did not justify it hearing her case in her absence, and that she was afforded no opportunity to deny the allegation of misconduct or given a substantial opportunity to challenge.
6. By way of response, the respondent refutes that there had been a delegation of public functions to a private body and asserts that the decision of the partnership cannot be imputed to the respondent. The respondent argues that both the High Court and the Court of Appeal correctly applied the law in this jurisdiction relating to the amenability of decisions to judicial review, and that the applicant failed to identify errors of law in the decisions of the lower courts. The respondent also argues that the interests of justice do not require that this appeal be heard, as she did not disclose in the judicial review proceedings that she had in fact entered into a private employment contract with the partnership. The respondent claims that these proceedings are for the purpose of seeking an injunction restraining the respondent Minister from implementing the decision to disqualify her from job-seekers’ allowance, but did not seek certiorari of that decision at any stage.
7. The general principles applied by this Court in determining whether to grant or refuse leave to appeal having regard to the criteria incorporated into the Constitution as a result of the 33rd Amendment have now been considered in a large number of determinations and are fully addressed in both a determination issued by a panel consisting of all of the members of this Court in B.S. v Director of Public Prosecutions [2017] IESCDET 134 and in a unanimous judgment of a full Court in Price Waterhouse Coopers (A Firm) v Quinn Insurance Ltd. (Under Administration) [2017] IESC 73. Accordingly, it is unnecessary to revisit the new constitutional architecture for the purpose of this determination.
8. The application for leave filed, and the respondent’s notice thereto, are both published along with this determination (subject only to any redaction required by law) and it is therefore unnecessary to set out the position of the parties in further detail.
9. The court is not for pursuing further appeals without the benefit of the constitutional test being met. No aspect of this ruling has precedential value as a matter of law.
10. As to whether the Minister or a body set up by the Minister is an appropriate respondent to judicial review was decided by the application of well-considered principles. There is nothing to convince the Court that the existing decisions should be reviewed or reversed. Nor is the constitutional threshold as to the interests of justice engaged.
The Court therefore declines the application for leave to appeal
AND IT IS HEREBY SO ORDERED ACCORDINGLY
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