High Court of Ireland Decisions

1. The Plaintiff is and was at all material times an employee of the Defendant, and its predecessor, the Department of Posts and Telegraphs, and these proceedings relate to the terms of his employment, particularly in regard to promotion or prospects of promotion in the particular circumstances of his case. I accept that the terms of employment are contained in two documents. The first of these is known as Leabhair Eolas, which is a lengthy and very detailed book of rules relating to all employees of the Defendant. The second is a document setting out procedures for dealing with grievances and disputes which, while it is dated June 1990, it is accepted by the parties applies to the dispute in the present case. This document came into being as the result of an agreement between the Defendant and the Communication Workers Union. While the issue is largely a matter of interpretation of the relevant provisions of these documents, it is first necessary to set the history of the dispute in some detail.

2. The Applicant was first appointed a Post Office Clerk in 1964, and in 1968 he became a Post Office Clerk in Letterkenny. The next rank above Post Office Clerk is that of Overseer. It frequently happens that from time to time an Overseer or Overseers are temporarily unavailable for their work, and in each Post Office there exists a List of Post Office Clerks who may be asked to act as Overseer in a temporary capacity, this List being known as the Acting List. The Acting List may also be used as a guideline for subsequent promotions. The Plaintiff was placed on the Acting Overseer List on 27th November 1972.

3. On 20th August 1985 the Plaintiff was promoted to the post of Overseer, and it followed that, as he was no longer a Post Office Clerk, he ceased to be on the Acting Overseers List. A few months later he was appointed Group Secretary of the National Investment Group Savings Scheme at Letterkenny Post Office.

4. In 1988 an investigation took place concerning certain irregularities in operating the savings scheme as a result of which the Plaintiff was initially suspended from duty, and on 25th January 1989 was downgraded from Overseer to Post Office Clerk with effect from 30th January 1989 as a disciplinary measure. It was also directed that he should not be considered for the Acting Overseer List until four years after his demotion. As a result of his downgrading, be became the longest serving Post Office Clerk in Letterkenny, and was in fact for all purposes other than the Acting List considered to be the Senior Post Office Clerk in Letterkenny. On a number of occasions between 1989 and 1993 he applied to be put back on the Acting Overseers List but this request was refused until 1993. Eventually, on 30th November 1993, the Plaintiff was notified that he would be placed on the Acting Overseers List as from 1st December 1993, but would be the Junior Acting Overseer on the List. The effect of this was that, because of the provisions of Rule 225(c) which I will set out below he could not be considered for promotion for a period of at least two years after being restored to the Acting List.

5. In October 1996 a vacancy for Overseer arose, at which time Mr Jim Ferry was in the number one position on the Acting Overseer List, and he was duly appointed to the vacant position. It is the Plaintiff's case that, on a proper interpretation of the Rules, he ought in fact to have been in the number one position on the Acting List, and ought to have obtained that promotion.

6. The rules governing employment by the Defendant are contained in Leabhair Eolas, and the relevant rules for the purpose of this dispute are as follows:-

7. Paragraph 3.3 of the disciplinary code in this document is as follows:-

8. The Plaintiff was eventually placed on the Acting List in November 1993. It is arguable that he ought to have been placed on the List in January of that year, namely four years after he had been downgraded to Post Office Clerk, but that is really immaterial to the matters which I have to decide. When the Plaintiff was demoted in January 1989 his name was not on the Acting Overseers List, as of course he had in fact held the position of Overseer at that time. However, it is quite clear on the evidence that in January 1989, upon his demotion, he was excluded from the Acting List. He was entered on the List in November 1993, and under Rule 225(c) he was entitled to "normal seniority" on being entered at that time on the List. Rule 225(c) commences with the word "similarly", and this can only refer to the provision of Rule 225 (b), and in particular to the definition of "normal seniority" in that sub-rule. This is stated to be "their seniority on the Acting List should be reckoned as if they have not been excluded or removed from it." Any reference there to removal from the List must, under Rule 225(b) be due to removal for health reasons, and under Rule 225 (c) due to removal for disciplinary reasons or inefficiency or unsuitability. Quite clearly the Plaintiff was not removed from the Acting List in this sense, as he was not on the Acting List at the time of the disciplinary action against him, and his removal from the Acting List, which took place on his promotion in 1985 was not on health or disciplinary grounds. I have no doubt, therefore, that the only possible interpretation of Rule 225(c) is that when the Plaintiff was restored to the Acting List in 1993, he should be given the seniority which he would have had had he been put on the List in January 1989, which is the date he was excluded from it.

9. The Plaintiff argues that his normal seniority in January 1989 was that of the Senior Post Office Clerk in Letterkenny, as that was the seniority which operated for other purposes, such as hours of work. I can see nothing to justify this argument, as in my view the rule is quite clear. The Plaintiff was not permitted to be put on the List for a period of four years for disciplinary reasons, but under Rule 225, when he is eventually put on the List, he ought to be put on it in a position of seniority as of the date of his exclusion for disciplinary reasons. I do not think that the Plaintiff is in any different position because he had previously been an Overseer, and had been demoted from that position. Under the Rules he is in exactly the same position as if he had been a Post Office Clerk who was not on the Acting List at the time the disciplinary proceedings were taken against him.

10. The Acting List as of 3rd February 1988 has been put in evidence. It shows Mr Jim Ferry at No 6 on the List. The next available List of which evidence has been given was in 1991, and it would appear that there was no revision of the List between those dates. While Rule 223 provides that the acting lists "should be revised annually", in my view this is not a mandatory provision, and if no annual revision takes place, the last List remains valid. In my view the Plaintiff's entitlement is to have been placed on the Acting List as of January 1989 as if he had been a new entrant on the List at that date. This means he would in fact have been at the bottom of the List, and inferior in position to Mr Ferry.

11. The situation is somewhat complicated by the fact that disciplinary action was also taken against Mr Ferry. In April 1991 he was removed from the Acting List for disciplinary reasons, and was restored to it on 18th January 1993. Under Rule 225(c) he was restored to the position which he would have held had he not been removed from the List, that is the position which he held in April 1991. At that date Mr Ferry was ahead of the Plaintiff on the List and therefore, even if the Plaintiff had been included either from the end of January 1993 or from November 1993, his position would of necessity have been below that of Mr Ferry. By the time the appointment to Overseer was made in 1996, Mr Ferry was clearly number one on the List, and in fact the Plaintiff ought to have been number two on the List.

12. It is clear from the evidence that when Mr Ferry was appointed in October 1996, consideration was given, not only to his suitability for the appointment, but to that of a Mr Markey who was next below him on the Acting List as it then existed. Notwithstanding the provisions of Rule 206, which makes it clear that the position on the Acting List is not the determining factor in promotions, in fact Mr Ferry was promoted rather than Mr Markey. This is so, even though Mr Ferry had had some disciplinary problems, and the confidential report on him from the Head Postmaster at Letterkenny was not nearly as complimentary as was the report on Mr Markey which was in glowing terms. In my view the strong probability is that, even if the Plaintiff had been number two on the List in 1996, Mr Ferry would still have been appointed to the vacant position. Indeed, this is in accordance with the Plaintiff's own evidence that the person who is number one on the List can normally expect to receive the next promotion. I should add, in fairness to the Plaintiff, that there is no suggestion that he was anything but highly efficient in his job, and any confidential report on him would probably have been just as good as was that on Mr Markey.

13. It is my conclusion, therefore, that when the Plaintiff was put on the Acting Overseers List in 1993, he ought to have been placed on that List second to Mr Ferry. However, had that happened, I do not think that he would have obtained the promotion in 1996, as that would have gone to Mr Ferry in any event. It does mean, however, that as from the date of Mr Ferry's promotion, the Plaintiff ought to have been number one on the Acting List. There has been no further promotion opportunities since that time. I understand that the Plaintiff has in fact not worked for some time, but no argument has been addressed to me as to the possible effect of this on the Acting List, and I do not think that is a matter for consideration by me at this time. However, it does not seem to me that the Plaintiff has shown that he suffered any loss as a result of the events which have occurred.

14. I will hear arguments from Counsel as to the form of the Order.