O'Callaghan v Meath Vocational Education Committe
| Jurisdiction | Ireland |
| Judge | Mr Justice Costello |
| Judgment Date | 20 November 1990 |
| Neutral Citation | 1991 WJSC-HC 1037 |
| Docket Number | No. 11051P/1986 |
| Court | High Court |
| Date | 20 November 1990 |
BETWEEN
AND
1991 WJSC-HC 1037
THE HIGH COURT
Synopsis:
EMPLOYMENT
Termination
Terms - Breach - Proof - Absence - Teacher - Temporary whole-time appointment - Vocational Education Committee - Permanent appointment sought - Approval of Minister required - Approval not obtained - (1986/11051 P - Costello J. - 20/11/90)
|O'Callaghan v. Meath Vocational Education Committee|
EDUCATION
Teacher
Appointment - Validity - Vocational education committee - Powers - Minister of State - Approval of appointment required - Approval not obtained - Appointment sought for appointment to permanent post as teacher of catechetics - Vocational Education Act, 1930, s. 23 - (1986/11051 P - Costello J. - 20/11/90)
|O'Callaghan v. Meath Vocational Education Committee|
Citations:
VOCATIONAL EDUCATION ACT 1930 S23
VOCATIONAL EDUCATION ACT 1930 S23(1)
VOCATIONAL EDUCATION ACT 1930 S23(2)
VOCATIONAL EDUCATION ACT 1930 S111
VOCATIONAL EDUCATION ACT 1930 S112
VOCATIONAL EDUCATION ACT 1930 S113
VOCATIONAL EDUCATION (AMDT) ACT 1944 S8
Judgment of Mr Justice Costellodelivered the 20th day of November 1990
The main issue in this case is the plaintiff's claim that he was appointed on the 15th May 1981 a permanent officer of the Meath Vocational Education Committee as a teacher of catechetics at its school in Dunshaughlin and that his appointment was unlawfully terminated in August 1982. He has sued the VEC, the Minister for Education and the Catholic Bishop of Meath, the Most Reverend Dr. McCormack. To explain the role which each of the defendants has in this case and to help an understanding of the unfortunate controversy which resulted in these proceedings, I must begin this judgment by referring to the statutory provisions relating to the appointment of teachers by VECs and the departmental rules regulating them.
It is a remarkable feature of the Irish system of education that its administration by the Department of Education is largely uncontrolled by statute or statutory instruments and that many hundreds, perhaps thousands, of rules and regulations, memoranda, circulars and decisions are issued and made by the Department and the Minister (dealing sometimes with the most important aspects of educational policy) not under any statutory power but merely as administrative measures. These measures are not, of course, illegal. But they have no statutory force, and the sanction which ensures compliance with them is not a legal one but the undeclared understanding that the Department will withhold financial assistance in the event of non-compliance. This feature of our system is well illustrated in this case. Provision was made for the establishment of Vocational Education Committees by the Vocational Education Act, 1930, committees empowered to establish schools for the provision of vocational education as defined. No express provision is made for the appointment of teachers by VECs but they are empowered to appoint officers and servants and teachers are regarded as "officers" of the VEC who appoints them. Limited powers to make statutory regulations relating to the exercise of their powers by VECs (including the appointment of teachers) is conferred on the Minister. The only statutory provision relating to the appointment of officers andservants is that contained in section 23 of the 1930 Act. Its first two sub-sections are the only ones relevant in this case. Theyprovide:-
2 "23(1) Subject to the provisions of this section, every vocational education committee shall appoint a chief executive officer and such other officers and servants as it shall from time to time think necessary for the due performance of its powers and duties under thisAct.
(2) The numbers, qualifications, salaries or remuneration, and appointment of all officers shall be subject to the approval of theMinister." (emphasis added).
Now it is agreed that all teachers appointed by VECs to teach in their schools are "officers" and not "servants" of the VEC. This means the appointment of every teacher by a VEC is subject to the approval of the Minister for Education. In the absence of ministerial approval no valid appointment can be made. This is the first vitally important statutory provision which is relevant to thiscase.
The second relates to the removal from office of permanently appointed officers. It is agreed that VECs may validly appoint officers (including teachers) on a permanent or a temporary basis. Statutory grounds are established for the removal from office of an officer who has been appointed to a permanent position in a VEC, as well as the procedures to be adopted (which include the holding of a local inquiry into the officers conduct) before the Minister can remove the office-holder from office (section 8 of the Vocational Eduction (Amendment) Act, 1944). The plaintiff's case is that as he was appointed in a permanent capacity as an office-holder of the VEC the only way his position with the VEC could have been terminated was by an order removing him from office by the Minister under this section.
Under the 1930 Act the Minister could make regulations prescribing the salary scales for teachers (section 111), travelling and maintenance expenses (section 112), training and certification of teachers (section 113), the keeping of accounts by, and the procedures to be adopted at meetings of, VECs. The two documents emanating from the Department ofEducation which have featured in this case were quite clearly not made under these or any other statutory power. They are merely administrative measures with no statutory force. But they are important because they contain the procedures which both the plaintiff and the defendants purported to adopt in relation to the plaintiff's appointment as a teacher by the Meath VEC. And their exact legal status is important for a reason which I will explain in a moment. The first deals with the appointment by VECs of permanent whole-time teachers. It is headed "Memorandum V.7" and is entitled "Appointment Qualifications and Scales of Salary of Permanent whole-time teachers under Vocational Education Committees". It deals with a wide range of subjects including the manner in which VECs are to make whole-time permanent appointments, the conditions of service of such posts (and steps to be taken to acquaint applicants of those conditions), and the steps to be taken to obtain ministerial approval to appointments to permanent whole-time posts.
The second document is the more important for the purposes of this case as it specifically deals with the appointment of teachers of catechetics and also explains the reason why Dr. McCormack is involved in the present controversy. The evidence established that before it was issued in the year 1979, teachers of catechetics in schools under the control of VECs had never been appointed as permanent officers - they had always been appointed either as temporary whole-time teachers or temporary part-time teachers. This matter was the subject of discussions between representatives of religious authorities, the Irish Vocational Education Association, the Chief Executive Officers" Association, theTeachers" Union of Ireland and the Department of Education. As a result an agreement was reached which was embodied in a document which was enclosed in a letter headed "Circular Letter 7/79" sent to all VECs. The document has come to be known as "Circular 7/79 ". In forwarding it to the Chief Executive Officers of every VEC in a letter dated the 23rd February 1979 the secretary of the Department stated:
"I am now to enclose for the information and guidance of your committee a statement of the arrangements agreed between the authorities and interests concerned, which the Minister is prepared toauthorise."
The "arrangements" which the Minister was prepared to authorise related to "Religious Instruction in Vocational Schools". The document firstly dealt with the subject of "Permanent whole-time appointments". It provided (paragraph 3.1) that for the purposes of appointment of teachers of religion on a permanent whole-time basis the same procedures would apply as apply to the permanent whole-time appointment of a teacher of any other subject, that after advertising and consideration of applications by a selection Board the VEC would submit the proposed appointment for the formal approval of the Minister, that confirmation of the suitability of the candidate from the catechetical inspectorate was required (paragraph 3.2), that the candidate could not take up duties until formal approval of appointment had been communicated to the VEC. It also made provision for "temporary whole-time and part-time appointments". Because of the importance of these provisions I should set them out infull.
2 4.1 Recognition as temporary whole-time or part-time teachers of religion may be accorded to priests and to any other persons, lay or religious, who are suitably qualified for the purpose. Vocational Education Committees would be authorised to make such appointments, with the formal approval of the Minister on the nomination of the appropriate religious authority, and to terminate them, if and when necessary, in accordance with the wishes of that authority.
3 4.2 A temporary whole-time teacher of religion, lay or religious, would be eligible for the award of annual increments of salary for continued service. A part-time teacher of religion would be renunerated on the same basis as part-time vocational teachers generally i.e. at an authorised rate per hour of actual instruction.
4 4.3 A teacher of religion appointed on a temporary whole-time basis only for the reason that he/she does not hold the...
To continue reading
Request your trial