Supreme Court of Ireland Decisions

1. By an order made by the High Court (Morris P.) on the 25th of August, 1999 the Court granted the applicant orders of certiorari in respect of decisions made by both

2. This case has had a long and complex pre-history and history. To understand the issues involved in this appeal it is necessary to give a brief summary of relevant events before the decisions complained of in relation to suspension of salary were made. The starting point is the appointment of the applicant to be Principal of St. Anne’s Post-Primary School, George’s Quay, in the City of Limerick. This appointment was made in the month of November, 1970. The appointment was governed by written contract a term of which was that the appointment was terminable by three month’s notice in writing from either side. The appointment, however, was not exclusively governed by the written contract as there are statutory provisions in the Vocational Education Acts limiting the power of the Vocational Education Committee to remove appointed officers, and I will be referring to these provisions later on in the judgment. The school in question was permanently closed down in 1976 but as was made clear in a previous judgment of the Supreme Court to which I will be referring, that event of itself and by itself did not bring the employment to an end, in that not only were there statutory limitations on removal but the contract itself provided that the second-named respondent could transfer the applicant as Principal to another school under that respondent’s jurisdiction. Before St. Anne’s school was actually closed in 1976 the applicant was

3. It is not necessary to go into all the problems which then arose and which eventually led to a case in the High Court and an appeal from there to this court. But in summary, the VEC adopted the approach that the school having been closed down, they could comply with the contract by requiring the applicant to revert to being an ordinary teacher, but giving her the salary which she would have received as Principal if St. Anne’s school had remained in being. When the applicant did not report for duty on a specified date the VEC treated her as having repudiated the contract and refused to pay her from then on. As I have mentioned, she instituted proceedings which ended up in the Supreme Court. The effect of the Supreme Court’s decision was that under the applicant’s contract the obligation of the VEC was either to employ her as Principal of the school to which she had been appointed or:

4. In the judgment of Finlay C.J. it was pointed out that under the written contract there was a power to direct her to revert to her previous status as a teacher but only if her work as Principal was deemed unsatisfactory. It followed from the decision of the Supreme Court therefore that her contract had not been lawfully terminated and she was entitled to full salary up to the date of that decision. The former Chief Justice, however, in delivering the judgment of the Court, observed that if it was impossible for the VEC to offer the applicant an equivalent job

5. It is what happened after that decision that has led to the further proceedings which are now before this court on appeal. Following on the earlier Supreme Court decision of the 17th of October, 1991 Limerick VEC reviewed the position. The following letter was written by their Chief Executive Officer to the Minister for Education on the 16th of July, 1992.

6. Somewhat strangely the letter was addressed to the then Minister personally, Mr. Séamus Brennan, T.D. and his private secretary replied on his behalf with what might generally be regarded as a holding letter. This was followed up by a letter of the 19th of August, 1992 from the relevant Principal Officer in the Department of Education requesting on behalf of the Minister more details as to the basis for the request for the removal. In particular, the Chief Executive of the VEC was requested to provide details of the duties assigned to Miss Carr since her restoration to the City of Limerick VEC since the 1st of November, 1991 together with confirmation that she had been reporting for duty and an assessment of her performance to date. The Chief Executive replied to the effect that the Committee’s decision was taken after several meetings considering the Supreme Court decision and pointing out that the Minister already had copies of the minutes of those meetings, but nevertheless further enclosing such copies. After some further relatively immaterial correspondence passing between the Department and the Committee a detailed letter was written to the Minister by the Chief Executive of the VEC on the 30th of November, 1992. It is not necessary to set out this rather lengthy letter in full but referring to the “assumption” of Finlay C.J. that a termination of the contract under its terms was equivalent to “removal of an officer” under s. 23(4) of the 1930 Act and therefore required the Minister’s approval. The Chief Executive went on to observe as follows.

7. The Committee’s present position is as follows:-

8. I emphasise that this request of the Committee is not based on any ground of misconduct or unfitness, such as must be established under sections 7 or 8 of the 1944 Act. No such requirement is contained in section 23(4) of the 1930 Act, nor in the relevant provision of Miss Carr’s conditions of service, nor does it appear that any particular reason must be assigned by either party to the contract for the exercise of their contractual rights. However, having regard to the observations of the Chief Justice mentioned above, the approval of the Minister is now sought for exercise by the Committee of the aforementioned contractual rights.

9. A follow-up reminder was sent by the Chief Executive and a holding reply was returned by the Department. A further more urgent follow-up letter was written by the Chief Executive on the 20th of September, 1993 making it clear following a perusal of the Local Government Auditor’s Report that the members of the Committee agreed with the auditor’s comment that “it is imperative that this matter be finalised without further delay”. Again a

10. That letter elicited a reply from the Chief Executive of the VEC which set out with admirable clarity and impeccable reasoning the position adopted by the Committee. The

11. Apart from a holding letter no response came from the Department until by letter of the 11th of May, 1994, the Chief Executive Officer was informed as follows:

12. There then followed lengthy letters passing between the Chief Executive and the Department to which it is not necessary to refer. The respective respondents got into argument as to the interpretation of the relevant statutory provisions. In fairness to the Department, the Vocational Education Committee, having been crystal clear as to the stand they were adopting and the basis for it up until their letter of the 30th of May, 1994, seemed to lose its way in that letter and as correctly pointed out by the Department turned the legal

13. Instead the Department decided that the Committee should enter into negotiations with the applicant “with a view to arriving at an agreed solution”. In order to achieve this purpose the Department suggested that there be an agreed facilitator. That suggestion seems to have been made for the first time in a letter of the 6th of September, 1996 from the Department to the Chief Executive. I will return to what happened about this suggestion in due course, but at this stage I think that I should temporarily digress from the correspondence between the Department and the VEC to explain the history up to that point of communications with the applicant herself. The Chief Executive of the VEC sent a letter dated the 24th of July, 1995 by registered post to the applicant warning her of the Committee’s decision to consider removing her from office under section 23(4) of the Vocational Education Act, 1930 and inviting her to make representation. The letter set out the grounds upon which the Committee proposed to consider seeking the applicant’s removal from office by three month’s notice in the following terms:-

14. That letter was answered by the applicant by way of a very short reply dated 29th of July, 1995 which read as follows:-

15. It was following on that exchange of correspondence that the VEC sought the consent of the Minister to the termination of the applicant’s employment and as I have already explained the Minister’s ultimate response was to encourage negotiations with the assistance of a facilitator.

16. It is not necessary to cover all the correspondence and documentation relating to the facilitator. It is sufficient to state that the applicant ignored all overtures in this regard. Ultimately, the Minister appointed Mr. Jack Marrinan, former General Secretary of the Garda Representative Association, to perform the function of facilitator. He made strenuous

17. I now move to a most important letter written by the Department to the applicant and dated the 30th of July, 1997. The letter read as follows:

18. That letter was sent by registered post but delivery was not accepted. Subsequently, it was sent to the applicant’s solicitors who did not respond. Eventually the Department arranged that the VEC would send the letter enclosed with a salary cheque. It would appear therefore that ultimately the applicant did in fact receive that letter.

19. No response was received by the Department or the VEC to that letter and the following key letter dated the 3rd of November, 1997 was then sent to the applicant with a copy being sent to her solicitors. This is the letter notifying the applicant of the decision of the Minister sought to be impugned in these proceedings and it read as follows:-

20. Although that particular letter does not set out the legal basis on foot of which the Minister was purporting to suspend payment of the salary as a disciplinary measure it will be recalled that in the letter of the 30th of July, 1997 cited above it is made perfectly clear that

21. The letter of the 3rd of November, 1997 at last led to correspondence between the Department and the solicitors for the applicant. It is not necessary to set out this correspondence. It is argumentative both as to the facts and as to the law. The factual arguments, are not relevant to this appeal. For the purposes of these proceedings the importance of the correspondence is the contention by the solicitors for the applicant that as a matter of law the Minister had no power to suspend the applicant’s salary, and in particular had no power to do so under section 7 of the 1944 Act. If the applicant’s solicitors are correct in their contentions then prima facie the applicant is entitled to the orders sought in this judicial review proceeding. I use the word expression “ prima facie ” advisedly in that even if the applicant does have the prima facie entitlement the Court must consider certain other arguments which were made before it as to whether as a matter of discretion such orders ought to be refused and also certain novel arguments relating to the withholding of the salary made by Mr. Crosbie, counsel on behalf of the VEC.

22. There would seem to be no doubt whatsoever but that section 7 of the Vocational Education (Amendment) Act, 1944 conferred no power on the Minister to do what he did in

23. It is perfectly obvious from a reading of those subsections that whereas in certain circumstances relating to performance of duties, the Minister may suspend an officer of the VEC pending an inquiry into the matters complained of in which event the salary is suspended, there is no power whatsoever under the section merely to suspend the salary whether on the grounds of unreasonable behaviour by the officer or otherwise. In fairness,

24. It was not seriously argued by the VEC that there was any statutory power in the Minister to do what he did. I am satisfied that he had no such power and that subject to the other matters which I have mentioned the orders sought under judicial review would have to be granted.

25. But Mr. O’Reilly has strongly urged upon the Court that certiorari and mandamus are discretionary remedies and that this Court ought to exercise its discretion by refusing the orders notwithstanding the illegality committed by the Minister because of what he submits was the wholly unreasonable behaviour of the applicant in refusing to co-operate with finding a solution and in failing to enter into any meaningful negotiations. The applicant is particularly criticised for her neglect to co-operate in any way with the facilitator or even to suggest an alternative facilitator or any alternative method of mediation. I do not think that this is a suitable case for this Court to review or restate the principles applicable to the exercise of this discretion. I say this, because I am satisfied that whatever may be the correct formulation of the principles this is a clear case where the court ought not to exercise its discretion against making the orders of certiorari and declarations sought. I will return to the question of whether there would be any basis for refusing to make the order for the payment of the back salary. This was a case where the Minister purported to suspend salary on the basis of the section of an Act which could not conceivably be construed as giving him that authority. It was a decision which by its nature was to have fundamental effects for the applicant in depriving her of her salary. It might be an entirely different matter if there was such a power conferred by the section but the Minister did not adopt completely fair procedures in the exercise of the power or in some other way rendered his exercise defective and capable of being judicially reviewed. There could be circumstances where the unreasonable behaviour of an applicant in that situation would justify the Court in refusing the orders as a matter of discretion. But this is not such a case. This is a case where the decision to suspend had no conceivable statutory basis.

26. Counsel for the Minister rely on The State (Abenglen Properties Limited) v. Corporation of Dublin [1984] IR 381. O’Higgins C.J at p. 393 of his judgment made the following observation:-

27. In this connection I think it instructive to cite also a passage from the judgment of Henchy J. in the same case at p. 401.

28. Henchy J. goes on to recite the facts in Vozza’ s case and to draw the conclusion that the order which was quashed was a conviction for a criminal offence. He went on to say that the reasoning in the relevant judgments had no bearing on the Abenglen case where the decision questioned was that of a planning authority purporting to exercise a civil jurisdiction of an administrative nature. He expressed the view that as a matter of discretion certiorari should be refused for two reasons. His first reason was that its only purpose, namely, a

29. If one was just to rely on the head note counsel for the State might be on stronger grounds in relying on Aherne v. The Minister for Industry and Commerce (No. 2) [1991] 1 IR 462. That was a decision of the High Court (Blayney J.) The unreasonableness relied on in that case was in a sense procedural also. It certainly was very different from this case. But anything that Blayney J. had to say about it would appear to be obiter dicta. The actual basis of his refusal of certiorari was that “even if the legal rights of the applicant were infringed in the present case, the order sought is not necessary for the protection of those rights.” (See p. 470)

30. I now turn to the arguments made by Mr. Crosbie, counsel for the Vocational Education Committee. Mr. Crosbie makes the ingenious argument that the applicant was in a contractual relationship with the Vocational Education Committee and that under the implied terms of that contract the VEC was not obliged to pay salary if the applicant was not

31. No relevant Irish authority on Mr. Crosbie’s argument was cited to the Court and of the other authorities it would seem to me that it is only necessary to refer to one, that is to say, Miles v. Wakefield Metropolitan District Council [1987] AC 539 . This was a decision of the House of Lords and the unanimous view of their Lordships was expressed in the

32. The counsel went on to cite authorities which he said supported that proposition.

33. However at p. 574 of the report Lord Oliver sets out the submission in this regard of counsel for the defendant in the following terms:-

34. Lord Oliver then observed on the same page that:

35. Lord Oliver, while conceding that he did not find the question an easy one came down in favour of Mr. Irvine’s submissions.

36. It is certainly open to argument that the Court should imply a term in the contract of employment between the VEC and the applicant requiring reasonable openness to negotiation as suggested by Mr. Crosbie. If the Court were now to consider that matter and find in favour of Mr. Crosbie’s argument it might be tempting to refuse as a matter of discretion the consequential order for the payment of the back salary and allow that matter to be litigated as part of an ordinary civil action for the recovery of that salary. The VEC could then make the defence suggested by Mr. Crosbie and additionally or alternatively claim set-off or counterclaim for damages for breach of contract. However, I have come to the conclusion that it would not be desirable for this Court to succumb to that temptation. It is of paramount importance that the Court should vindicate the applicant in her correct allegation that the Minister acted wholly ultra vires the statute in suspending her salary and merely to

37. However, even if the order for the payment of the back salary made by the High Court is affirmed by this Court, I see no reason why the Limerick VEC would be precluded from suing the applicant in the ordinary civil courts for damages for breach of her contract if the Committee is advised that she was guilty of such breach. The effect of the orders of the High Court which I suggest should be upheld will be that the Committee will be permanently precluded in relation to the back salary from making the kind of defence discussed by Lord Oliver of Aylmerton in Miles v. Wakefield MDC but this in no way precludes the Committee from instituting its own action for damages for breach of contract. Furthermore it will be open to the Committee to consider whether it might be entitled to withhold future salary on the principles recognised in Miles v. Wakefield MDC .

38. Although it does not directly arise, I think that I should also make clear that nothing in this judgment is in any way intended to contradict or modify the view of this Court in the earlier appeal as expressed by Finlay C.J. that the applicant can effectively be made redundant and her employment with the VEC terminated with the consent of the Minister using the machinery of s. 23(4) of the Vocational Education Act, 1930. I should also add in this connection as there was some confusion about it in court that s. 8 of the 1944 Act would seem to be irrelevant. That section concerns removal from office by the Minister himself for certain statutory grounds set out in the section.

39. For the reasons, therefore, which I have indicated, I would dismiss the appeal and affirm the order of the High Court.