Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Carr v. City of Limerick Vocational Education Committee [1987] IEHC 36 (22 May 1987)
URL: http://www.bailii.org/ie/cases/IEHC/1987/1987_IEHC_36.html
Cite as: [1987] IEHC 36
[New search] [Printable RTF version] [Help]
Carr v. City of Limerick Vocational Education Committee [1987] IEHC 36 (22 May 1987)\
3650P/1982
THE HIGH COURT
LUCY CARR
PLAINTIFF
AND
THE CITY OF LIMERICK VOCATIONAL EDUCATION COMMITTEE
AND THE MINISTER FOR EDUCATION AND IRELAND
AND THE ATTORNEY GENERAL
DEFENDANTS
Judgment of Mr. Justice Murphy delivered on 22nd day of May 1987.
The Plaintiff is a teacher. On the 20th of December 1971 she was appointed principal of St. Anne's Post Primary School by the Limerick Vocational Education Committee. The terms of her employment were set out in a contract in writing which included the following provisions:-
"The appointment is terminable by three months' notice, in writing, on either side. The.person appointed may, at any time, be reverted to the status and salary of previous post should her work as principal be deemed unsatisfactory.
She may also be transferred as principal to another school under the Committee's jurisdiction with the appropriate allowance applicable to such school".
In the Spring of 1976 certain decisions were made by the Limerick Vocational Education Committee (the V.E.C.) with regard to the re-organisation of the schools under their control. A decision ' was made to close St. Anne's Post Primary School. The staff of St. Anne's were invited to express their view as to whether St. Anne's should be relocated as a separate entity within the Limerick School of Commerce or whether it should be integrated with that school. At the time when this election was to be made Miss. Carr was absent on sick leave. She was, however, kept informed about the proposals generally and in particular the unanimous decision of the Vice Principal Miss Deighnan and the other teachers in St. Anne's to opt for full integration with the School of Commerce. However, before the negotiations in relation to the closure of St. Anne's were finalised Miss. Carr was notified by letter, dated the 21st of June, 197 6 from Maurice 0'Kelly the CEO of the Limerick V.E.C. that she, Miss. Carr, had been suspended from office pursuant to Section 7 of the Vocational Education (Amendment) Act 1944 whilst the Minister for Education conducted an inquiry into allegations of insubordination by her.
Unhappily almost four years elapsed before the decision of the Minister based on the inquiry was announced. This lapse of time and more particularly the fundamental change which took place during Miss. Carr's absence gave rise to serious legal problems. In addition there was the very practical problem that Miss. Carr was deprived of her salary and indeed precluded from drawing any social welfare benefits during that four year period. On the other hand it is proper to say that at an early stage, in September 1976, the Minister agreed to remove the suspension of Miss. Carr pending the outcome of the inquiry. In addition, the Minister did indicate from time to time his anxiety to have the dispute resolved amicably.
Ultimately, by letter dated the 25th of July, 1980, the V.E.C. notified Miss. Carr that the Minister had in exercise of the powers conferred on him by Section 7 of The Vocational Education P (Amendment) Act 1944 decided that the suspension should be terminated and that the remuneration which the Plaintiff would have received had she not been suspended should be paid to her. The letter went on to say that the Plaintiff was requested to resume duty under the V.E.C. as from the commencement of the school year 1980/81 and to report for duty to the School of Commerce, Musgrave Street on the 1st of September 1980. At the same time the V.E.C. forwarded to the Plaintiff a Pay Order for her arrears of salary amounting to £22,504.51. To those communications the Plaintiff replied on the 31st of July 1980 by a letter marked "Without Prejudice" and expressed in the following terms:
"Dear Sir,
I return herewith your cheque for £22,504.
Your Committee should not attempt to make any settlement with me as it is simply a party to the public sworn inquiry of 1977 to which I was subjected in 1977.
I will not ever settle direct with Limerick V.E.C. Kindly note that and do not write again.
Yours faithfully,
Lucy Carr".
The cheque was, as the letter had said, enclosed.
Miss. Carr explained in evidence that she had been offended by the fact that it was the V.E.C. who informed her of the Minister's decision. She felt, perhaps with some justification, that the Minister should himself have communicated his decision to her. Nonetheless she recognised that her action in writing this abrasive letter had been imprudent. Notwithstanding the inclusion of the words "without prejudice" it would have been difficult for the V.E.C. to treat this communication in a casual fashion. Its terms could not have been expressed more clearly and the remission of a cheque for four years net salary was an extraordinary guarantee of the sincerity and finality of the views expressed therein.
In any event it appears that the Plaintiff tactics succeeded to the extent that on the 14th of August 1980 the Minister did write to the Plaintiff informing her of the termination of her suspension and of his direction that the arrears of remuneration should be recouped to her. The letter from the Minister concluded with a paragraph in the following terms:
"I am also to request that you will be good enough to confirm to the Department before the 25th of August 1980 that you will resume duty under the City of Limerick Vocational Education Committee on the 1st September 1980.”
To that letter the Plaintiff on the 15th of August 1980 replied in the following terms:
"Dear Mr. Minister,
I regard your C O’Domhnaill's letter of the 14th instant as a ruse on your part.
You have a statutory obligation to provide a result of the inquiry (public sworn) held by you in my case in March 1977.
I intend to have that result, and, unless you furnish it together with a copy of the transcript of the evidence within 14 days of the date of this letter I will ask the High Court to order you to do so.
Yours faithfully,
Lucy Carr".
The effect of the evidence of the Plaintiff in relation to that letter was first that she was seeking to manoeuvre the Minister into a position in which he would provide her with a transcript of the evidence of the public inquiry and secondly that she had in fact decided at that time to resume her position as a teacher with the V.E.C. on the 1st of September 1980.
What happened next gives rise to one of the few conflicts of fact between the parties.
On Saturday the 30th of August 1980 Doctor Brendan O’Regan a Senior Inspector in the Department of Education called on the Plaintiff at her home in Limerick. The Plaintiff explained that she had by that time heard of the death of Mr. Ryan the principal in the School of Commerce in Limerick. She speculated that the call might have something to do with inviting her to fill some vacancy which would be created indirectly as a result of Mr. Ryan's death. Miss. Carr made it clear that she never expected to be offered the position of principal of the School of Commerce as that was a more prestigious position than that which she had previously occupied. However, whatever her thinking may have been it was Miss. Carr's evidence that Doctor 0'Regan informed her that she would return as a Class III teacher. That she would be back in her original position. The position which she had occupied as a teacher when she first qualified. It was her evidence that she told Doctor O’Regan that she would take legal action to get back her status. Miss. Carr said that Doctor O'Regan informed her that the question of her being given a position of Grade A or Grade B responsibility or that of Deputy Principalship never arose. The importance of this evidence is that Miss. Carr explained that it was Doctor 0’Regan's rejection of her claim to some position of responsibility or status over and above that of teaching rank (and apparently all teachers are graded as Class III) which finally decided her against attending at the School of Commerce on Monday the 1st of September 1980.
In fact Doctor O’Regan's evidence of the same meeting whilst similar insofar as it related to inconsequential detail was diametrically opposite with regard to the fundamental facts. Doctor O1Regan explained that he enquired from Miss. Carr whether she would be returning to the School of Commerce on the following Monday. Her reply was to the effect that she could not discuss the case with him. However, most important of all was that Doctor 0'Regan emphasised that he did not and could not have discussed with Miss. Carr any aspect of the posts or positions which would or might have been available to her.. He explained he was wholly unfamiliar with the facts of the case and he was acting solely as a messenger from a Senior Officer in the Department to impress upon Miss. Carr the importance to her of resuming her duties at the beginning of the school term. I have no difficulty in accepting fully the evidence of Doctor 01Regan on this point. His version is fully corroborated by departmental records which were put in evidence at the request of both parties. The first of these records is a Minute dated the 26th of August 1980 in which Mr. 0 Domhnaill recommends personal contact between an Official of the Department and Miss. Carr and the second record is a Memorandum by Doctor 0'Regan dated the 1st of September 1980 recording his note of his conversation with the Plaintiff. Indeed Counsel for the Plaintiff was compelled to accept that quite apart from any want of authority in the matter Doctor O1Regan had not been involved in the dispute in any way and would have been incapable of expressing any opinion less still of giving any direction in relation to the matters of which the Plaintiff had given evidence.
Accordingly, in relation to this area of conflict I fully accept the evidence given by Doctor O’Regan and of necessity reject the account given by Miss. Carr. However, it may be fair and proper to record that Miss. Carr had been under considerable stress - a fact which may be reflected in the intemperate letters she wrote to the V.E.C. and to the Minister for Education – and that in the following month, September 1980 she was hospitalised with some nervous or psychiatric disorder.
In fact Miss. Carr maintained legal proceedings against the Minister seeking a Mandatory Order directing the Minister to produce the Report of the Public Inquiry. Those proceedings were discontinued in the Summer of 1981 and the present action commenced in March of 1982. However, between August of 1980 and July of 1981 there was effectively no communication between the Plaintiff and the V.E.C. As far as the V.E.C. was concerned Miss. Carr had made it clear that she did not wish to hear from them and she did not herself initiate any contact. Certainly she did not attend at the School of Commerce on the 1st of September 1980 or indeed at any time thereafter. It was suggested that the V.E.C. was well aware of the communications between the Plaintiff and the Minister and indeed the litigation in relation to the public sworn inquiry. This aspect of the matter was pursued through discovery and in cross examination of the Defendant's witnesses. Surprising though it may seem it is in fact quite clear that the V.E.C. and its Chief Executive Officer was in no way involved in or consulted with regard to the litigation between the Plaintiff and the Minister which was discontinued in the Summer of 1981. There was no collusion between those two authorities. Improbable
though it may seem the V.E.C. was simply left in the position that Miss. Carr was invited to attend at the School of Commerce on the 1st of September 1980 and that she did not attend then of give any reason for her non-attendance or communicate directly or indirectly with the V.E.C. before the month of July 1981. In those circumstances it was the contention on behalf of the V.E.C. that the Plaintiff had repudiated her contract of employment and that the V.E.C. had, as they were entitled to do, accepted that repudiation.
The case as pleaded by the Plaintiff is that she was entitled to reinstatement in the employment of the first named Defendants in the capacity or position which she held prior to the 22nd of June 1976: that the Plaintiff was so reinstated by Order of the second, third and fourthly named Defendants and a Mandatory Injunction directing the first named Defendants to comply with the Orders of the other Defendants. In other words that the V.E.C. had failed and neglected to reinstate the Plaintiff as they the V.E.C. had been directed so to do. Whilst the pleadings were amended from time to time this remained the gist of the Plaintiff's case. In essence it was said that the Defendants failed and neglected to reinstate her. On the other hand it was accepted by the Plaintiffs and by all of the Defendants that it would be unrealistic to suggest that the Plaintiff should be restored to her position as Principal of St. Anne's School. That position had been abolished with the closure of that school sometime in August of 1976. In the circumstances the complaint related to a narrower area. It was said that the V.E.C. and the Minister had failed to identify the post which the Plaintiff was to fill and the authority which she was to exercise. Indeed it was pointed out that the particular subjects which the Plaintiff was to teach had not been identified to her before the commencement of the school term in September 1980. To a large extent the debate in relation to the period in August/September 1980 concerned whether the Plaintiff was in all of the circumstances more at fault in failing to attend at or subsequent to the opening of the new academic term than were the Defendants in failing to facilitate or encourage the Plaintiff in the resumption of her duties. With regard to the position in the following year when the matter was reopened in correspondence between the Plaintiff and the V.E.C. it does appear that eventually - in December 1981 - the Chief Executive Officer of the V.E.C. made it clear that they did not consider it open to them to offer Miss. Carr employment at that stage. On the other hand let it be said that the Chief Executive Officer made it clear in evidence that in fact a vacancy had been reserved and was still reserved for Miss. Carr in case either the Minister or the Court should direct her reinstatement even at this late stage.
With very considerable hesitation I reached the conclusion that the debate between the parties was misconceived. It is not possible to evaluate the conduct of any of the parties or to analyse their actions without first establishing the legal framework within which their conduct falls to be assessed. What were the duties that each party owed to the other?
It seems to me that the protracted suspension of the Plaintiff by the Minister has tended to confuse the position. The duty of the V.E.C. to the Plaintiff was to employ her as Principal of St. Anne's Primary School on the terms set out in the written contract of employment. That they failed to do. The closure of that school and the abolition of the post of Principal without the consent of the Plaintiff involved a breach I of her contract of employment. Again, the fact that this was accepted by all parties as being an accomplished fact and. perhaps one which had been desirable economically and academically does not in my view change the position that the V.E.C. was in all of the circumstances in breach of the contract which it had entered into with the Plaintiff. As I say I hesitate to approach the matter in this way as this is not the case which was pleaded or argued on behalf of the Plaintiff. However, I believe that the reference to the word "reinstatement" in the pleadings was inappropriate. Under the Vocational Education (Amendment) Act 1944,Section 7, the power of the Minister is to terminate a suspension. The statutory consequence of his so doing is that the Officer is entitled to the remuneration which has been withheld from him and of course he ceases to be suspended from his position. In the present case the termination of the suspension effectively unmasked the breach of contract which had already m. taken place. Viewed in that light the willingness or unwillingness of the Plaintiff to take up employment with the V.E.C. at the School of Commerce in Limerick in September 1980 or indeed to take up any other employment would be viewed more j correctly, in my opinion, as an effort to mitigate the loss flowing from the Defendants breach of contract.
What emerged from the correspondence in 1981 was that the emoluments which would have been available to the Plaintiff had she resumed duties in September 1980 would have been similar to those which she had enjoyed in her former position. Her only loss would have been one of status or authority but these are undoubtedly factors which must be taken into account. At the present stage it seems to me sufficient to recognise that the conduct of the Plaintiff in September 1980 and indeed thereafter falls to be examined by reference to the well established principle of law that an injured party must take reasonable steps to mitigate his or her loss. It could not be suggested that the injured party must take the first offer made to him or her or that he or she must make instant decisions but on the other hand the standard of reasonableness might well require a former employee whose employment was terminated as a result of external factors to accept comparable if not identical employment from the former employers guaranteeing an identical income with a reduced status which does not reflect any discredit on the employee.
However, it was agreed by all parties that any question of damages should be postponed until the issue of liability had been first determined. In the circumstances it seems to me that it is sufficient at this stage to indicate my conclusion that the V.E.C. were guilty of a breach of their contract with the Plaintiff and that accordingly they are liable to her in damages subject to the duty of the Plaintiff to mitigate her loss. Accordingly in assessing damages for future loss of earnings regard must be had to the willingness of the V.E.C. or others to provide and the Plaintiff to accept comparable employment.
In these circumstances it seems to me that it may be necessary to hear additional evidence with regard to the availability of employment to the Plaintiff even at this stage by the V.E.C. perhaps as an alternative to the payment of more substantial damages. It will be necessary to hear that evidence and the arguments of the parties in relation to it. As I say the argument to date was based upon the rights or duties of the parties with regard to reinstatement whereas any further argument, as I see it, relates to the provision or acceptance of employment by way of mitigation of damages.
I will hear all of the parties as to the course which should be adopted to give effect to these views.