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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Carr v. City of Limerick Vocational Education Committee & Ors [1987] IEHC 9 (31 July 1987)
URL: http://www.bailii.org/ie/cases/IEHC/1987/1987_IEHC_9.html
Cite as: [1987] IEHC 9
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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 the 31st day of July 1987.
As appears from the Judgment in this matter delivered on the 22nd day of May 1987 I took the view that in closing St. Anne’s Post-Primary School and thereby preventing the Plaintiff from discharging her functions as principal of that school that the Limerick ocational Education Committe (the V.E.C.) had committed a breach of the contract dated the 20th of December 1971 under which the Plaintiff had been appointed to that position. As it had been agreed at the outset that the assessment of damages (if any) should be postponed until all questions of liability had been determined the matter was duly re-entered for that purpose.
On behalf of the Plaintiff it was contended as follows:
1. That the contract dated the 20th of December 1971 under which the Plaintiff was employed by the V.E.C. was a contract of employment for life or until pensionable age.
2. That on breach of the contract of employment by the employers that the Plaintiff was entitled to be paid damages calculated by reference to the present value of the total emoluments which she would have received if the contract had been performed subject to the limitation that the Plaintiff was bound to take
reasonable steps to mitigate the loss which she sustained as a result of the breach of contract by the V.E.C..
3. That in all of the circumstances as they existed at the time that the Plaintiff did not act unreasonably
in failing to take up alternative employment with the V.E.C. on the 1st of September 1980 as she was requested to do.
4. That as a matter of fact (which indeed was not disputed by any of Defendants) the Plaintiff has not had and will not have any further opportunity of mitigating her loss.
5. That the damages to which the Plaintiff is entitled amount to £224,596-00 consisting of loss of earnings from the 1st of September 1980 to the 1st of July
1987 of £62,714-00 and an actuarial calculation of her future loss to the age of sixty-five years (without tax being deducted from the fund) based on a loss of
income of £217-00 per week and a multiplier of £746-00 giving a total of £161,882-00. (Figures were also given by the actuary to the present value of the loss of pension rights but no evidence was tendered in support of any claim under that heading). Again it is proper to say that no challenge was raised to the figures
provided or the assumptions made by the actuary who gave evidence and accordingly it seems to me appropriate to accept the computations most favourable to the Plaintiff.
The obvious difficulty facing the Plaintiff presenting the foregoing argument is that the contract under which she was employed provides - as recorded in the first page of the Judgment herein delivered on the 22nd of May last-that:
"The appointment is terminable by three months notice in writing on either side".
How can the Plaintiff contend that she was entitled to be employed for life when she, in fact, relies on a contract containing that provision?
Counsel on behalf of the Plaintiff sought to overcome that obvious problem by recourse to three different arguments, namely,
(1). That the Plaintiff was a statutory employee (and this term was consciously selected in preference to the words officer or servant) the terms of whose employment was governed by statute and in particular by the provisions of Sections 7 and 8 of the Vocational Education (Amendment) Act 1944. Those sections can be summarized by saying that they confer upon the Minister for Education and a Vocational Education Committee the power in certain circumstances to suspend without pay the holder of an office under a Vocational Education Committee and also confer on the Minister the power to remove an office-holder from office on the grounds of unfitness or misconduct provided that such unfitness or misconduct is established by the procedures laid down in those sections. Why, it is asked rhetorically, should the statute provide for removal in special events established by special, and frequently costly, procedures if in fact the employment may be terminated by the giving of an appropriate period of notice and without any suggestion of misconduct less still the establishment of such misconduct in what well may be elaborate and protracted administrative or quasi judicial proceedings. It is contended that the clear implication of Sections 7 and 8 aforesaid is that they provide an exhaustive code for the termination of the employment of office-holders.
(2) That the contract itself expressly provides that the position is "whole-time, permanent and pensionable subject to the provisions of the Vocational Education Acts. As Counsel contended that these words of themselves confirmed the existence of a life-long contract attention was directed to the decision of the House of Lords in McClelland and the Northern Ireland General Health Services Board 1957 2 A.E.R. 129 and the decision of Mr. Justice Budd in Walsh and the Dublin Health Authority 1964 I.L.T.R. 82 in which he commented (inter alia) on the House of Lords decision. In his judgment Mr. Justice Budd quoted several passages from the House of Lords decision (including as, he expressly recognised, passages from the dissenting judgments). Among those quoted were Lord Goddard (at page 133) saying:
"That an advertisement offers permanent employment does not, in my opinion, mean thereby that employment for life is offered. It is an offer, I think, of general as distinct from merely temporary employment that is that the person employed would be on the general staff with an expectation that, apart from misconduct or inability to perform the duties of his office, the employment would continue for an indefinite period. But, apart from a special condition, in my opinion a general employment is always liable to be determined by reasonable notice".
Again a passage from Lord Tucker (at page 134) was quoted in the following terms:
"My Lords, unless there is to be found in this document something which clearly confers on the appellant an appointment for life subject only to determination as therein expressly provided, it would, I think, be impossible to suppose that the use of the words "permanent and pensionable" in this advertisement indicated anything more than that the posts available were on the regular established staff and were subject to the terms of a mpension scheme".
The passage from Lord Keith was in the following terms:-"A mere statement that a person holds a permanent and pensionable post is very imprecise. It contains no indication of the degree of permanence or the nature and conditions of the pension".
Finally Lord Evershed was quoted as saying (at page 140):
"My Lords, if the terms of the appellant's service depended only on the respondent board's advertised offer and its acceptance by the appellant, I should think that the board were entitled to succeed; for I should not regard the use of the word "permanent", even when the word "pensionable" is added to it, as sufficient in that context to create a promise of a life employment or to disable the board as employers from terminating the employee's contract of service on reasonable notice".
Having indicated his intention to follow those views the late Mr. Justice Budd went on to say (at page 88 of the I.L.T.R. report):
"I have to add that in the absence of strong indications to the contrary, it would seem difficult to imply, from "the use of the word "permanent" in an offer of employment, a term as being in the contemplation of the parties which involves a finding that it was the intention of a servant, in the position of the plaintiff, to tie himself to lifelong service with a particular employer. But the further matter has to be investigated namely whether there was anything further existing in the contractual relationship of the parties in this case which would indicate that the parties contemplated a contract of employment for life or until full pensionable age had been reached, subject to the rights of the employer conceded by the plaintiff".
Whilst it is correct to say that the Walsh case related to the employment of a carpenter by a Health Board and not a teacher by a Vocational Education Committee it was not suggested that there was any reason why the decision of Mr. Justice Budd with regard to the words "permanent and pensionable" were not of themselves of equal application to the present case.
Having regard to the decision in Walsh and the Dublin Health Authority and the actual terms of the contract expressly providing for termination by three months notice it seems to me that the argument based upon the words "permanent and pensionable" is wholly unstatable. Indeed the reality of the matter is that the Plaintiff cannot say that she was entitled to be employed for the remainder of her working life (subject to her continuing good conduct and fitness for the post) if and so long as the terms of her employment expressly provide for termination on a specified period of notice. It was for that reason, as I understand it, that the Plaintiff falls back on two further alternative arguments. First, that the inclusion of the provision relating to notice is ultra vires and of no effect and secondly that the provision for termination relates only to the Plaintiff's position as principal j of St. Anne's School and did not relate to her general employment m* with the Vocational Education Committee.
The question then arises whether the provisions of Sections "1 7 and 8 of the 1944 Act of themselves not merely raise the implication of an office enduring throughout the working life of the office-holder but also prohibit by implication the incorporation in a contract of employment of provisions permitting the termination of the relationship otherwise than on the statutory grounds and in accordance with the statutory procedures.
1 On behalf of the Minister it was argued that the appointment of an officer by the V.E.C. and the terms of his appointment required the approval of the Minister (See Section 23 of the Vocational Education Act 1930) and that accordingly the statutory provisions governing the appointment of officers left room for the introduction of additional terms acceptable to the parties concerned provided that they were not in conflict with the statutory provisions. The statutory provisions, it was pointed out, dealt solely with misconduct and unfitness. There was nothing to prevent the parties themselves agreeing upon terms providing for the cessation of the engagement by the giving of a period of notice acceptable to both of them. Indeed, it might also be said that the statutory provisions relate to the removal of an officer by the Minister rather than the termination of the relationship by either the employer or employee. I believe that this agreement is well founded. In my view it is impossible to conclude that it was ultra vires the parties to the contract dated the 20th of December 1971 to incorporate a provision for the termination thereof by three months notice in writing by either of them as they in fact did.
There remains the argument that the agreement between the parties already referred to relates only to the Plaintiff's position as principal of St. Anne's Post-Primary School and that it is separate from and additional to her employment as an ordinary teacher engaged by the Limerick Vocational Education Committee. Whilst the language of the contract of December 1971 is clearly related to the Plaintiff's conditions of service as principal of St. Anne's and does in certain circumstances provide for her reverting to the status and salary of her previous post, it seems to me that she was in fact as from the date of that agreement employed by the V.E.C. as principal of St. Anne's and in no other capacity. If the appointment had been terminated in accordance with the provisions of the contract, whether by the V.E.C. or by Miss Carr, there is no residual capacity, as I see it, in which she would continue to be employed by the V.E.C
It is my view, accordingly, that the provision for termination incorporated in the contract of December 1971 is valid and effective and that the inclusion of such a term must necessarily negative any inference that the parties intended to create a lifelong contract. Instead the bargain between the parties falls to be construed as one which may be lawfully terminated by either party giving three months written notice in that behalf to the other of them.
As I understand it, St. Anne's primary school was closed at the end of 1976. It was the closure of that school which constituted a breach by the V.E.C. of their contract with the Plaintiff as I have already held. On behalf of the V.E.C. it is pointed out that the Plaintiff was paid (and did ultimately retain) a sum of £22,504-00 in respect of salary for a period of nearly four years ending on the 31st of July 1980. Accordingly it is said that the Plaintiff has received a sum vastly in excess j of any damages to which she would be entitled. I reject that submission.
The circumstances in which the V.E.C. perpetrated a breach of their contract with the Plaintiff were unusual. The Plaintiff was under suspension throughout the relevant period. The concept ] of suspension and in particular suspension without pay for a protracted period is in itself an appalling one. However, in addition to the injustice which it may cause to the suspended officer it necessarily prevents any meaningful analysis of events occurring within the period of the suspension until after it has been lifted. In the present case it is only with hindsight that one can say that the V.E.C. were in breach of their contractual duties to the Plaintiff in the year 1976. If the Minister instead of lifting the suspension had removed Miss Carr from her office (and I hasten to add that it has not been suggested that he had any grounds for so doing) then the question of wrongful dismissal by the V.E.C. could not have arisen. In my view it was only on the lifting of the suspension by the Minister in June 1980 that the closure of St. Anne's impinged directly and immediately upon the Plaintiff. In my view the breach of contract by the V.E.C. became operative only at the end of the month of July 1980.
The Plaintiff was directed by the V.E.C. on the 25th of July 1980 and by the Minister on the 14th of August 1980 to resume duty with the V.E.C. on the 1st of September of that year. She neglected to do so in the circumstances outlined in my earlier judgment. The question which now arises is whether this neglect constituted a breach of the duty which she owed to the V.E.C. to mitigate the loss which she sustained as a result of their wrongdoing.
On behalf of the Plaintiff it is said, and in my view rightly that the acts or omissions of a Plaintiff should not be weighed in nice scales (to use the words of Lord McMillan in Banco de Portugal and Waterloo 1932 AC 452, 506) at the instance of the party whose breach of contract has occasioned the Plaintiff's misfortunes. On the other hand, it is clear that persons who have been wronged owe a duty to the wrongdoer to mitigate their loss. The innocent person must act reasonably not merely from his or her own standpoint but reasonably having regard to the existence of the legal duty owing to the wrongdoer to mitigate the loss.
The option to resume work was attractive in many respects. It did emerge - though not until one year later - that the Plaintiff would have suffered no direct financial loss if she accepted the proposal made to her. Moreover, the work she was being invited to do was with the same employer and the same colleagues as she had known prior to her suspension. As I say, there were many attractions in accepting the offer and indeed I feel sure that with hindsight Miss Carr would agree that her failure to co-operate was imprudent. However, her decision must be evaluated at the time and in the circumstances in which it was made. She had been under suspension for approximately four years and she had only some weeks notice of the direction "to resume duties". She was given no indication as to the position which she would occupy nor was she invited to discuss them. Apparently the precise nature of her duties would not to be made known to her until the first day of the new term. No discussion took place as to how her acceptance of the proposal would or might prejudice her claim to be given detailed information with regard to the inquiry held in relation to her suspension. I do not think that Miss Carr can in those circumstances be condemned as acting unreasonable in failing to comply with the direction or request made by the Minister or the V.E.C. Accordingly, it seems to me that she is entitled to the full measure of her damages which should be assessed on the basis of the salary which she would have earned for the months of August, September and October of 1980, that is to say, the sums of £804-00, £966-00 and £1,04 7-00 making a total of £2,817-00.
Judgment for the Plaintiff against the first named Defendants (IR V.E.C.) in the sum of £2,817-00 and costs. Dismiss the claim as against the other Defendants with no Order as to costs.