Carr v Minister for Education and Science

• Jurisdiction: Ireland
• Judge: Mr. Justice Geoghegan
• Judgment Date: 23 November 2000
• Neutral Citation: [2000] IESC 73
• Court: Supreme Court
• Docket Number: 182 JR/1998
• Date: 23 November 2000

[2000] IESC 73

THE SUPREME COURT

Keane C.J.

McGuinness J.

Hardiman J.

Geoghegan J.

Fennelly J.

182 JR/1998

229 & 231/99

CARR v. MINISTER FOR EDUCATION & LIMERICK VOCATIONAL EDUCATION COMMITTEE (VEC)

BETWEEN/

LUCY CARR

Applicant/Respondent

and

THE MINISTER FOR EDUCATION AND SCIENCE AND THE CITY OF LIMERICK VOCATIONAL EDUCATION COMMITTEE

Respondents/Appellants

Citations:

VOCATIONAL EDUCATION (AMDT) ACT 1944 S7

REDUNDANCY PAYMENTS ACTS 1967 – 1973

VOCATIONAL EDUCATION ACT 1930 S23(4)

VOCATIONAL EDUCATION (AMDT) ACT 1944 S8

VOCATIONAL EDUCATION (AMDT) ACT 1944 S7(1)

VOCATIONAL EDUCATION (AMDT) ACT 1944 S7(3)

VOCATIONAL EDUCATION (AMDT) ACT 1944 S7(5)

ABENGLEN LTD, STATE V DUBLIN CORPORATION 1984 IR 381

VOZZA, STATE V O FLOINN 1957 IR 227

AHERNE V MIN FOR INDUSTRY (NO 20 1991 1 IR 462

MILES V WAKEFIELD METROPOLITAN DISTRICT COUNCIL 1987 AC 539

Synopsis

Employment

Employment; judicial review; applicant is secondary school principal; attempted termination of applicant's employment by respondent; applicant refused to accept respondent's correspondence in this regard; respondent informed applicant in writing that refusal to enter into discussion constituted misconduct; whether respondent entitled to suspend payment of applicant's salary pursuant to s.7, Vocational Education (Amendment) Act, 1944, where no enquiry being held into breach of discipline; whether discretion to be exercised against making orders sought; whether term should be implied into applicant's employment contract requiring reasonable openness to negotiation.

Held: Appeal dismissed.

Carr v. Minister for Education and Science - Supreme Court: Keane C.J., McGuinness J., Hardiman J., Geoghegan J., Fennelly J.

23/11/2000 - [2001] 2 ILRM 272

The applicant was employed as a principal of a school. The school was subsequently closed down. The respondent purported to suspend the salary of the applicant. In the High Court Mr. Justice Morris held that the respondents could not suspend payment of remuneration since there were no allegations of misconduct or suggestion that the applicant was unfit to hold office. The respondents appealed. Geoghegan J, delivering judgment, held that the respondent had acted ultra vires. The appeal would be dismissed.

[NEM diss]Mr. Justice Geoghegan

Mr. Justice Geoghegan

INTRODUCTORY

1 By an order made by the High Court (Morris P.) on the 25th of August, 1999 the Court granted the applicant orders ofcertiorari in respect of decisions made by both respondents on the 27th of November, 1997 suspending payment of the salary of the applicant as an officer of the second-named defendant, and the Court also made declaratory orders to the same effect, and a consequential order directing the first-named respondent to authorise and the second-named respondent to pay to the applicant all arrears of salary owing from the second-named respondent to the applicant from the 1st of December, 1997 to date. Both respondents have appealed to this Court from these orders.

THE FACTS

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 suspended in that year under s. 7 of the Vocational Education (Amendment) Act, 1944pending an inquiry into allegations of insubordination by her. Some four years later by letter of the 25th of July, 1980 the applicant was informed by the second-named respondent that the first-named respondent had decided that the suspension should be terminated and that she should be paid remuneration withheld from her.

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"whether she liked it or not, unilaterally employ her as the Principal to another school under the Committee's jurisdiction with the appropriate allowance applicable to such school". 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 as Principal because of the absence of a suitable vacancy, then with the consent of the Minister for Education she could be made redundant. It is obvious that Finlay C.J. was not using the word"redundant" in the special context in which the word is used in the Redundancy Acts. He was referring simply to the statutory power of removal of an officer, presumably for good reason with the approval of the Minister. The Supreme Court made a declaration that the applicant was still an officer of the Vocational Education Committee in the position of a principal of a school which was within their jurisdiction and a declaration that she was entitled to be paid the salary from the date on which she was originally suspended giving credit for any payments of salary or in lieu of salary that had been made since that time.

4 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.

"Re: Supreme Court decision - 17th of October, 1991

Miss L. Carr v. VEC and Others

Dear Minister

The City of Limerick VEC has been considering the above Decision (copy enclosed) in recent months in consultation with its Legal Advisors.

The Committee, at a Special Meeting held on the 10th of July, 1992 decided unanimously to request your approval to remove Miss Carr from office in accordance with the provisions of s. 23(4) of the Vocational Education Act, 1930.

We enclose copy of Ms. Carr's signed conditions of service.

In accordance with the Committee's decision, I hereby request your approval.

Yours sincerely"

5 Somewhat strangely the letter was addressed to the then Minister personally, Mr. Seamus 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.

"It...