Boyle v an Post

• Jurisdiction: Ireland
• Judge: MR JUSTICE GERARD LARDNER
• Judgment Date: 18 May 1992
• Neutral Citation: 1992 WJSC-HC 1543
• Docket Number: [1992 No. 3240P]
• Court: High Court
• Date: 18 May 1992

1992 WJSC-HC 1543

THE HIGH COURT

No. 3240P/1992

No. 3211P/1992

BOYLE & ORS v. AN POST

COPY OF APPROVED TRANSCRIPT

BETWEEN

PATRICK JOSEPH BOYLE, BRIAN DIVINEY, JOHN JOSEPH DOHENY AND THOMAS HENNESSEY

Plaintiffs

AND

AN POST

Defendant

BETWEEN

ATTRACTA KELLY, THOMAS ROWE AND WILLIAM O'TOOLE

Plaintiffs

AND

AN POST

Defendant

Citations:

HALSBURY'S LAWS 4ED V24 PARA 948

CAMPUS OIL V MIN FOR INDUSTRY 1983 IR 105

JAKEMAN V SOUTH WEST THAMES REGIONAL HEALTH AUTHORITY 1990 IRLR 67

Synopsis:

CONTRACT

Breach

Remedy - Injunction - Employer - Wages - Payment - Failure - Mandatory injunction - Interlocutory motion - Special circum stances - Industrial dispute - Computerised payroll system inoperative - Alternative method of payment - (1992/3240 P, 1992/3211 P - Lardner J. - 18/5/92) - [1992] 2 I.R. 437

|Boyle v. An Post|

INJUNCTION

Interlocutory

Motion - Order - Mandatory relief - Special circumstances - Employer's breach of contract - Failure to pay employees" wages - Breaches of contract admitted - (1992/3240 P, 1992/3211 P - Lardner J. - 18/5/92) - [1992] 2 I.R. 437

|Boyle v. An Post|

TRANSCRIPT OF JUDGMENT

1 DELIVERED BY THE HONOURABLE MR JUSTICE GERARD LARDNER ON 18TH MAY 1992

2 These are two Notices of Motion seeking relief by way of mandatory injunction, the first one brought by Mr Patrick Joseph Boyle and three co-plaintiffs, all of them being members of the supervisory staff employed by An Post, the second Notice of Motion being brought by three members of the staff, not members of the supervisory staff, Ms Attracta Kelly, Mr Thomas Rowe and Mr William O'Toole. The plaintiffs are all employees of An Post and they are employed under contract. In the case of Mr Boyle and the other three plaintiffs, their wages are payable fortnightly. In the case of the three plaintiffs in the other Notice of Motion, their wages are payable weekly.

3 In the recent past An Post, it appears, employed a number of temporary staff in the Central Sorting Office (98 in number, I think). A number of the permanent staff members refused to work with the temporary staff and were suspended. This occurred in relation to a small number of supervisory staff. And several hundred (originally 600, I think) non-supervisory staff were suspended. I am told that the number now suspended has gone up to over 1,000 members of staff.

4 The plaintiffs in both Notices of Motion have continued to carry out their normal work. They have a continuing contract of employment with An Post which has not been terminated. Under that contract the supervisory staff are entitled to receive and An Post is bound to pay their wages and salaries fortnightly. The plaintiffs who are non-supervisory staff are also employed under contract by An Post and An Post is bound to pay their wages weekly.

5 Following the suspension by An Post of a number of supervisory and non-supervisory staff?, An Post intimated to the plaintiffs that they could not pay them their wages and salaries in the week ending or the fortnight ending the 8th of May and their subsequent weekly and fortnightly payments.

6 It is apparent that the non-payment of wages and salaries in both cases is a clear breach of the contract by An Post. This is not disputed by An Post but it is claimed that they had no other course. I need not go into detail but the circumstances are deposed to in the Affidavit of Mr John Russell, Director of Personnel of An Post. Mr Russel deposes to the fact that when the temporary staff were employed instructions were given to the staff of the Dublin area payroll section, whose function it is to administer and operate the payroll system, to enter the appropriate records in relation to the temporary employees and that this instruction was refused, that as a result the payroll system computer had to be shut down. That is the explanation given for the non-payment to these plaintiffs of their salaries and wages.

7 In those circumstances the plaintiffs instituted the present proceedings and Plenary Summonses in each case claiming an injunction restraining An Post its servants or agents from refusing to make salary and wages payments to which the plaintiffs are entitled and, if necessary, an order compelling An Post to pay the salaries and wages as they become due, and a declaration that An Post, in ceasing to pay fortnightly salaries in the case of the supervisory staff were in breach of contract or in infringement of the plaintiffs" constitutional rights. No point has been taken on the Constitution in any argument before me.

8 What is sought in effect is a mandatory order of the Court directing An Post to pay the plaintiffs their salaries and wages.

9 The principles on which a mandatory order of this kind is granted I find usefully set out in Halsbury, 4th Ed. Vol. 24, par.948 headed "Mandatory Injunctions on Interlocutory Application". The principle is stated in this way:

"A mandatory injunction can be granted on an interlocutory application...(reads)...".

10 In Campus Oil v. Minister for Industry [1983] I.R.105, Chief Justice O'Higgins had this to say in relation to interlocutory applications, and, in fact, I think he was referring to mandatory orders which had been sought:

"It frequently happens that neither the applicant's right nor the fact of its violation....(reads)....".

11 In the present case Counsel for An Post relied on an English decision as persuasive authority that no order should be made in this case. Jakeman v South West Thames Regional Health Authority [1990] IRLR, 67, was a case in which there was an industrial dispute over the pay of ambulance workers who were employed by the South West Thames Regional Health Authority and London Ambulance Service.

12 They had continued to make themselves available for work but refused to comply with an operational instruction requiring them to make radio contact with the central control station after they had conveyed a patient to hospital on an emergency call. They were, in effect, restricting their work. The South West Thames Regional Health Authority, their employers, proceeded to dock their wages, to reduce them by some amount which they thought was appropriate to the work not being carried out. The ambulancemen sought a mandatory injunction compelling payment of their wages and their application was refused on three grounds. It seems to me that the first of these grounds distinguishes Jakeman from the present case. The trial judge took the view that there was a serious issue to be tried and a dispute as to what were the correct deductions that should be made and consequently what were the correct payments which ought to be ordered. He decided that it was not a clear case, one of the grounds on which he refused to grant a mandatory injunction. There were two other grounds to one of which I will refer later. The other has no direct bearing on the present case.

13 It is quite clear that this is a case in which the plaintiffs have a right to payment, which is undisputed, and this is what distinguishes it from the Jakeman case. An Post do not deny that the plaintiffs are entitled to be paid their wages and salaries. Equally, they do not deny the breach of that right. An Post admit that they failed to pay the plaintiffs.

14 They advance a reason why they failed to pay the plaintiffs but it does not in any sense satisfy the plaintiffs right to be paid.

15 I am satisfied that these two factors make this a clear case within the principle expressed in the passage quoted from Halsbury. It is an exceptional case where one can say with assurance that at the hearing of the substantive action the plaintiffs are bound to succeed. To that extent the plaintiffs have shown that the case falls within the principle to which I have already referred.

16 That is not the end of the matter. It is indisputable that what the plaintiffs seek is the payment of their wages and salaries due on 8th May and the assurance of subsequent weekly and fortnightly payments as they fall due. Each of them claims payment of ascertainable sums of money.

17 Now, it is said on behalf of the defence that breach of the obligation to make such payments is clearly capable of being compensated by an award of damages and that the plaintiffs cannot in the circumstances show that they will suffer irreparable damage in the traditionally accepted sense. The plaintiffs reply is that some considerable time must elapse before their actions can come to trial; that each of them, except in one case, is a married man with family responsibilities and dependent on the payment of salary or wages and that the cessation of payment will cause and has caused hardship, distress and anxiety and that the ultimate recovery of damages, even with interest, will not compensate them for such hardship, distress and anxiety.

18 I now refer to the relevant passages in the Affidavits of each of the plaintiffs. The first plaintiff is Mr Patrick Boyle. He is an Inspector Grade 1 in the employment of An Post and working out of Whitehall District 9. His position is as supervisor in charge at Whitehall with full responsibility for...