Why minister should first check up on contract law if axe is to fall on O’Brien
THE recent controversy in relation to the smear test scandal has led to demands that the Health Minister dismiss the director general of the HSE, Mr Tony O’Brien.
Mr O’Brien has held the office of director general of the HSE for two three-year terms. In March 2018, he announced that he was not going to seek to apply for a new contract. Therefore, he will cease to hold office at the end of July 2018 irrespective of anything that happens in relation to the smear test scandal.
If Mr O’Brien was the chief executive of a privatesector business and his employer did not want him to work out the balance of his term then the obvious way to proceed would be terminate Mr O’Brien’s contract without cause by paying him the balance of his entitlements under the contract.
Employment contracts – even contracts for a fixed term – invariably provided for termination “for good reason, bad reason or no reason at all” on the giving of notice. They also typically provide for payment in lieu of notice. This type of dismissal is called a “nofault” dismissal.
Where an employer exercises the right to terminate on the giving of notice and provide that the employer makes it clear that the termination is not for cause then an employee has little or no recourse other than bringing a claim for unfair dismissal. An employee on a fixedterm contract – such as Mr O’Brien – has even less options.
In the hypothetical ‘private-sector’ scenario outlined above, by paying Mr O’Brien the balance of his remuneration under his contract and by making clear that the dismissal was not for cause, a private sector employer could send Mr O’Brien home now with no exposure to legal risk.
It is important to note that there are cases that say that an employee who is “no faulted” cannot bring court proceedings on the basis that the real reason for his or her dismissal was misconduct and that he or she is therefore entitled to fair procedures.
The Courts have said they will not interrogate the motivation for the dismissal provided the stated reason is that it is not for cause.
The problem for Health Minister Simon Harris is that the demands to dismiss Mr O’Brien are based upon the proposition that he bears culpable responsibility for the smear test scandal and should therefore be punished.
Dismissing Mr O’Brien on that basis is not compatible with the conservative and risk adverse “no-fault” approach explained above.
Under the relevant legislation, Mr Harris may at any time remove the director general from office for a number of stated reasons which include a situation if – “in the minister’s opinion” – the director general has “committed stated misbehaviour” or if it “appears to the minister to be necessary for the [HSE] to perform its functions in an effective manner” or if he “has consistently failed to have regard to the requirements in relation to his or her functions under this act.”
Relying upon any of these grounds as a ground for dismissing Mr O’Brien would expose the Health Minister to the risk of court proceedings in which it would be inevitably alleged that Mr O’Brien is being dismissed for misconduct and is therefore entitled to fair procedures.
The precise status of individuals in the position of Mr O’Brien – whether they are employees or “office holders” – is a complex question as is the extent to which the powers given to the minister can be the subject of challenge or review.
However, in the famous case of Garvey v Ireland, the Supreme Court found that the commissioner of An Garda Síochána – a pure office holder who served at the will of the minister – was entitled to fair procedures where he was being dismissed for cause.
The precise status of individuals in his position is a complex question
IN conclusion, given that Mr O’Brien is going to be finishing work at the end of July 2018 it makes little or no sense for the minister to go down the road of attempting to dismiss him for cause.
It might also be observed that in Ireland there is no established culture of executives accepting corporate responsibility for failures that occur “on their watch” even if they are not personally implicated in them.
It is often said that this is particularly the case where the executive in question is a government minister.
This feeds into the analysis set out above, ie that dismissing somebody in the position of Mr O’Brien in the teeth of a scandal and public outrage is equivalent to firing somebody for wrongdoing without giving them the benefit of a fair hearing.