Claiming one thing and then denying it*
This is an issue which comes up and is referred to as the issue relating to “approbate and reprobate”
This issue was addressed by the Labour Court back in October 2013 in a case of Dublin Institute of Technology and Noelle Cunning FTD1326.
In that case the Labour Court held that the employee was relying on the validity of a subsequent fixed term contract for the purposes of establishing locus standi under the Act while repudiating their validity for the purposes of advancing her claim to permanent status. The Labour Court in that case stated that that amounted to the Complainant seeking to approbate and reprobate. The Court quoted the case of Superwood Holdings PLC -v- Sun Alliance and London Insurance PLC 1995 3IR303 where Mr Justice Blayney quoted with approval the decision of Mr Justice Budd in Coen -v- Employers Liability Assurance Corporation 1962 I.R.314 where it was said:
“…the repudiating party cannot be allowed to approbate and reprobate.
He cannot thus be allowed to say “I deny the existence of the contract which you say exists between us, I also rely on the terms of that contract…”
A similar position was adapted by Mr Justice McMahon in Manor Park Home Builders Limited -v- AIG Europe (Ireland) Limited 2009 1ILR9190.
A further useful decision on this issue arises in a case of a Consultant Doctor and a Hospital ADJ-00009074. That is a case involving Hand -v- Football Association of Ireland FTD143. That was a case where the claimant was held by the Labour Court to be an independent contractor not an employee. The claimant had previously represented to Revenue that he was self-employed but then asserted to the Labour Court that he was an employee with an entitlement to a contract of indefinite duration. The Labour Court held that the claimant could not blow “hot and cold” in respect of whether he was an employee.
This is an issue which is coming up quite often now that an employee will seek to rely on one thing but actually claim something entirely to the opposite but use the document that they are denying to base that claim.
It’s surprising how often this comes up.
We thought it would be useful to set out the cases on this for colleagues who come across this argument.
*Before acting or refraining from acting on anything in this guide, legal advice should be sought from a solicitor.
*In contentious cases a solicitor may not charge fees or expenses as a proportion or percentage of any award or settlement.