Central Bank of Ireland v Gildea

JurisdictionIreland
JudgeKeane J.
Judgment Date14 March 1997
Neutral Citation[1997] IESC 2
Docket Number346/95,[S.C. No. 346 of 1995]
CourtSupreme Court
Date14 March 1997

[1997] IESC 2

THE SUPREME COURT

Hamilton, C.J.

Barrington, J.

Keane, J.

346/95
CENTRAL BANK OF IRELAND v. GILDEA
(CASE STATED)

BETWEEN

CENTRAL BANK OF IRELAND
Appellant

AND

MARTIN LEO GILDEA
Respondent

UNFAIR DISMISSALS ACT 1977 S2(1)(h)

CENTRAL BANK ACT 1942 PREAMBLE

CENTRAL BANK ACT 1942 S6(1)

MCLOUGHLIN V MIN FOR SOCIAL WELFARE 1958 IR 1

MURPHY V MIN FOR SOCIAL WELFARE 1987 IR 295

CENTRAL BANK ACT 1942 S23(3)

CIVIL SERVICE REGULATION ACT 1924 SCHED PARA 1

CIVIL SERVICE REGULATION ACT 1926

CENTRAL BANK ACT 1989 S15(2)

CIVIL SERVICE REGULATION ACT 1956

LOFTUS & HEALY V BORD TELECOM UNREP BARRON 13.2.87 1987/3/933

CURRENCY ACT 1927

CENTRAL BANK ACT 1942 S5

CENTRAL BANK ACT 1989 S15(2)

UNFAIR DISMISSALS ACT 1977 S2(1)

MCLOUGHLIN V MIN FOR SOCIAL WELFARE 1958 IR 1

SOCIAL WELFARE ACT 1952

CAROLAN V MIN FOR DEFENCE 1927 IR 62

BYRNE V IRELAND 1972 IR 241

COMYN V AG 1950 IR 142

KELLY IRISH CINSTITUTION 3ED 225

Employment Law

Case stated; claim of unfair dismissal to Employment Appeals Tribunal (EAT) where EAT ordered his re-engagement; whether respondent employed "by or under the State" within meaning of s. 2(1)(h) of Unfair Dismissals Act, 1977; excluded categories of employment from ambit of 1977 Act; Civil Service Regulation Acts, 1924 and 1926; status of bank; Central Bank Act, 1942. Held: Respondent not "employed by or under the state" (Supreme Court: Hamilton C.J., Barrington J., Keane J. 14/03/1997)

Central Bank of Ireland v. Gildea [1997] 1 IR 160-[1997] 2 ILRM 391

1

14th day of March, 1997by Keane J.[NEM DISS]

2

The Respondent was employed as a security guard by the Appellant (hereafter "the Bank") from the 21st July 1981 to the 4th February 1992, on which latter date he was dismissed for what was alleged to be gross misconduct. He made a claim to the Employment Appeals Tribunal establishedunder the Unfair Dismissals Act 1977(hereafter "the 1977 Act") that he had been unfairly dismissed. The Tribunal ruled in his favour and ordered his re-engagement by the Bank. The Bank appealed from that determination to the Circuit Court.

3

At the hearing in the Circuit Court, it was submitted on behalf of the Bank that the Respondent was employed "by or under the State" within the meaning of s.2(1)(h) of the 1977 Act and that, accordingly, the provisions of the 1977 Act were not applicable to his employment. Having heard submissions from counsel on behalf of the Bank and the Respondent, the President of the Circuit Court acceded to an application by the Bank for a Case Staged to this court. The question on which the opinion of the court is requested is as follows:

"Is the Respondent a person employed by or under the State within the meaning of s 2 (1)(h) of the Unfair Dismissals Act 1977?"

4

Mr. Hugh O'Neill, S.C., on behalf of the Bank, submitted that the Bank was an integral part of the Government of the State performing essential functions of government. He pointed to the fact that the preamble totheCentral Bank Act 1942(hereafter "the 1942 Act") describes the Bank as "the principal currency authority in the State" and provides in s.6 (1) that the "general function and duty" of the Bank is-

"safeguarding the integrity of the currency and ensuring that, in what pertains to the control of credit, the constant and predominant aim shall be the welfare of the people as a whole."

5

Mr. O'Neill said that, following the abolition of consolidated bank notes, the Bank was now the sole currency authority in the State.

6

Mr. O'Neill referred to the decision of the former Supreme Court in McLoughlin v. Minister for Social Welfare 1958 IR 1, in which the former Supreme Court held that an assistant solicitor in the Chief State Solicitor's Office, although not a civil servant of the government, was a civil servant of the State. That judgment had been applied by Blayney J. in Murphy v. Minister for Social Welfare [1987] IR 295 when he held that an ordinary member of the Labour Court was also in the civil service of the State. Similarly, the employees of the Bank, although not civil servants of the Government, werecivil servants of the State and were properly described as employed "by or under the State".

7

Mr. O'Neill further submitted that since, s.23 (3) of the 1942 Act provided that the Civil Service Regulation Acts 1924and 1926were not to apply to Directors of the Bank, it was clear that the intention of the legislature was that those provisions should apply to the other employees of the Bank, including the Respondent. He said that, a similar inference could be drawn from the provisions of paragraph 1 of the Schedule to the Civil Service Regulation Act, 1924, as adapted, removing from the ambit of the Act offices such as that of Governor of the Bank.

8

On behalf of the Respondent, Mr. Ercus Stewart, S.C. submitted that the Bank was a separate corporate entity created by statute which did not form any part of government. He referred to the provisions of s.15(2) of the Central Bank Act 1989under which the Bank were empowered to appoint such officers and servants as it from time to time considered necessary for the due performance of its statutory function and which also provided that the officers and servants so appointed were to hold office upon such terms and subject to such conditions as it might appoint. He submitted that it was clearly not the intention of the Oireachtas that the Bank's employees should be in the sameposition as civil servants in respect of whom a self contained code providing for their recruitment, remuneration and dismissal had been provided under the relevant legislation, such as the Civil Service Regulation Act 1956.

9

Mr. Stewart further submitted that the Bank had itself recognised that this was the position by including in the terms of employment of the Respondent the following at para. 14:

"when probation has been completed and the officer made permanent, appointments are subject to termination at the discretion of either party at any time on one week's notice or in accordance with the Minimum Notice and Terms of Employment Act, 1973. Normal industrial relations procedure will apply in accordance with the Unfair Dismissals Act 1977."

10

Mr. Stewart also submitted that, as a body created by statute and carrying out admittedly important public functions, the Bank was in a similar legal position to bodies such as Telecom Eireann and An Post, the employees of which had been recognised as being entitled to rely on the provisions of the 1977 Act, citing in support the decision of Barron J. in Loftus and Healy v. An Bord Telecom ([Unreported]; judgment delivered February 13th 1987) and the decision of the Employment Appeals Tribunal in the case of Hayes & Anor. v. B & I Line [21st December 19791.

11

In considering these submissions, it should be said at the outset that this court is not concerned with whether the Bank might have been in any way estopped from contending that the Respondent was not entitled to make a claim under the 1977 Act, having regard to the apparent acceptance by the Bank in his terms of employment that the legislation was applicable to the post which he held. That would be a matter which would fall to be determined (if at all) by the learned President of the Circuit Court at the hearing of the appeal before him. The Employment Appeals Tribunal is, moreover, a creature of statute and it may be that, in the case of any of the classes of employment which are expressly excluded from the ambit of the 1977 Act, it is not open to the employer and employee by agreement to confer on the Tribunal, and the Circuit Court on appeal, a jurisdiction which is expressly excluded by the statute itself. Again, however, it is not necessary for this court to decide that issue: we are solely concerned with the question posed for determination by the Case Stated, i.e. as to whether the Respondent is a person employed "by or under the State" within the meaning of s.2(1)(h) of the 1977 Act.

12

The Bank, when it was established in 1942, took over the currency functions which had been the responsibility since 1927 under the Currency Act of that year of the Currency Commission. As a result of the 1942 Act and subsequent legislation, the Bank is the only body in this country with authority to issue currency, the exchequer and other government accounts are entrusted to it and (in the words of s.6 of the 1942 Act) it has the general function of taking such steps as it considers appropriate and advisable "towards safeguarding the integrity of the currency". It is beyond argument that the bank thus discharges functions which are of central importance in the government of a modern state.

13

The Bank is also (by virtue of s.5 of the 1942 Act) a body corporate with perpetual succession, an official seal, and power to sue and be sued in its corporate name and to hold and dispose of land. It is conducted and managed by a Board of Directors consisting of a Governor who is appointed by the President on the advice of the Government and six directors who are appointed by the Minister for Finance.

14

Section 15(2) of the Central Bank Act 1989provides that

"the Bank shall appoint a Secretary and such other officers and servants as the Bank shall from time to time consider necessary for the due performance of its functions under this Act and every...

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