O'Connor v Carroll

JurisdictionIreland
JudgeBARRON J.,MR JUSTICE FRANCIS D MURPHY
Judgment Date01 January 1999
Neutral Citation1998 WJSC-SC 11205
Docket Number[S.C. No. 261 of 1997]
CourtSupreme Court
Date01 January 1999

1998 WJSC-SC 11205

THE SUPREME COURT

HAMINLTON C.J.

MURPHY J.

BARRON J.

261/97
O'CONNOR v. JUDGE CARROLL & BANKERS INNS LTD

BETWEEN:

ANNE O'CONNOR
APPLICANT/APPELLANT

AND

HIS HONOUR JUDGE CARROLL
RESPONDENT

AND

BANKERS INNS LIMITED
NOTICE PARTY

Citations:

RSC O.84 r26(4)

UNFAIR DISMISSALS ACT 1977

MCILWRAITH, STATE V FAWSITT 1990 1 IR 343

KING, REX V JUSTICES OF LONDONDERRY 1912 46 ILTR 105

HYNES, REX V JUSTICES OF CLARE 1911 45 ILTR 76

Synopsis

Employment

Application for costs; employment dismissal action; claim for costs against a trial Judge; confusion as to facts of case; whether dismissal constructive or express; whether respondent erred in refusing to allow evidence related to a constructive dismissal to be adduced; whether applicant should have been afforded an opportunity of exploring all facts relating to the termination of her employment before the respondent; whether mala fides on the part of the respondent; whether error lay in clarification of the facts; whether Judge properly joined as party to Judicial Review proceedings Held : Appeal dismissed; no evidence of mala fides on the part of the respondent (Supreme Court: Hamilton CJ., Murphy J., Barron J. 26/05/1998)- [1999] 2 IR 160

O'Connor v. Judge Carroll

1

JUDGEMENT OF MR JUSTICE FRANCIS D MURPHYDELIVERED THE 26th DAY OF MAY 1998 [CHAMILTONAGR]

2

On the 20th May 1996 Mr Justice Peter Kelly granted an order of certiorari in respect of an order made by His Honour Judge Carroll on the 20th October 1995 and, pursuant to Order 84 Rule 26(4) of the Rules of the Superior Courts remitted the matter for reconsideration by a judge of the Circuit Court. The learned trial Judge refused the Applicant's application for costs as against the Respondent,Judge Carroll, It is against that part of the order that the Applicant appeals to this Court.

3

The Application had been employed on a part-time basis as a claims with Bankers Inns Limited from the 7th February 1992 for about 22.5 hours per week at a rate of £3 per hour. It was the Applicant's case that on her return from annual leave on the 23rd June 1993 she was informed by Mr MC Murphy, the proprietor of Bankers Inns Limited, that her job was no longer available for her and that a 16 year old boy had been employed to perform her workand that at a reduced rate of pay. Mr Murphy vigorously disputed the Applicant's account of what took place. He maintained that she had become abusive and alleged that her job had been given to the young man at a lower rate of pay and it was she who insisted on being given her P45 and all outstanding holiday pay due to her. It was Mr Murphy's version that he had pointed out that her job was available to her and that the young man in question was a student who had been taken on merely for the holiday period to lend assistance and would be returning to his studies.

4

The Applicant applied for relief pursuant to the Unfair Dismissals Act 1977.A hearing was duly conducted into dispute and on the 12th October 1993 the Rights Commissioner Mr Des Casey made the followingrecommendation:-

"Whilst it is apparent than an altercation occurred between the claimant and her employer on the 25th June 1993, I am satisfied that these exchange and the subsequent termination of her employment did not, technically constitute unfair or constructive dismissal within the meaning of the Act, and I must therefore recommend that Mrs O'Connor's claim under the hearing fails."

5

However, given that the employer also acknowledged that the dispute had emanated from a misunderstanding related to the claimant's proposed revised attendance hours and his expressed willingness to re-engage Mrs O'Connor, I therefore further recommend that she be re-employed by Bankers Inns Limited on the same rate of pay (£3 per hour) and same hours of work (22.5 per week) as heretofore."

6

The Applicant appealed the recommondations of the Rights Commissioner to the Employment Appeals Tribunal. The appeal was heard on the 29th March 1994. The report of the tribunal records that the fact of dismissal was in dispute.

7

The report goes on to set out in some detail the case made by the Applicant. She contended that management had disputed her rights to holiday pay in April 1993 and about the same time informed her that her hours of attendance were being cut from four and a half hours to one hour daily. She complained - and on this point there was some measure of agreement - that on her return from vacation in June 1993 that her hours of attendance had been changed from the morning (either 9.30 am or 10.00 am) to the afternoon on less than 24 hours notice. There was then the highly contentious issue as in whether or not her job was being performed by a student for £1.75 per hour. It was her contentionthat:-

"I was then ordered to leave the premises as any services were no longer required at the usual hours operated before going on leave. I was informed that I could attend at 2.30 pm and perform different duties (i.e washing walls)."

8

The Applicant's view of the dispute was summarised in the report of the Tribunal in the following terms:-

"The decision to dispense of my services and the devious methods used to do so were directly a result of my having insisted on my entitlements to be paid annual leave and the intention of management to utilise inexperienced and cheaper labour to perform myduties."

9

The case made by the Employer once again was that the Applicant had not been dismissed and that her work was avaliable to her. It was claimed that before leaving on her vacation she had been asked to check the hours on which she would be engaged on her return but this was not done. On the day before she resumed work she was telephoned by the manageress to say that she would be required at 2 pm and she attended at 10.00 am. It was emphatically denied that the Applicant had been dismissed or that any other person had been employed in her place.

10

In those circumstances the determination of the Tribunal was asfollows:-

"Having carefully considered the evidence before it the Tribunal finds that, in the circumstances, the Appellant's actions were justified as the Respondent had not consulted her regarding the change in hours of work.The Tribunal therefore allows the appeal under the Unfair Dismissals Acts 1977and 1991 against the recommendation of the Rights Commissioner. Accordingly the recommendation of the Rights Commissioner isoverturned."

11

The Tribunal finds that compensation is the most appropriate form of redress in this case. Having considered that the Appellant did not mitigate her loss and the probability of finding future employment the Tribunal awards the Appellant £1,000 under the Unfair Dismissals Acts 1977and 1991."

12

The said award of £1,000 in favour of the Applicant was appealed by the employer to the Circuit Court and by order dated the 20th October 1995 that appeal was allowed by Judge Carroll.

13

On the 11th March 1996 the Applicant sought and obtained leave to apply for judicial review of the judgement and order of the Circuit Court judge aforesaid on the grounds that the hearing by the learned judge of the Circuit Court was required to be conducted in accordence with the principles of natural and constitutional justice but was not so conducted. In the detailed statement of grounds the Applicant explained the basis of the conflict which emerged in the following terms:-

"9. I say that at the commencement of the hearing Counsel for the (Employer) advised that the case was an appeal from a determination of the Employment Appeals Tribunal with a net issue as to whether or not this was a case of constructive dismissal. I say and am advised that in response Counsel for this deponent asserted that at no time was the case made that this was a case of constructive dismissal. I say that (the Judge) asked Counsel for this deponent whether or not she was claiming constructive dismissal or whether or not it was an express dismissal. I say and believe that Counsel for this deponent replied that the case being made was that an incident had occurred and words spoken to the effect that I, this deponent was to leave and that I was expressely told to get out. The (Judge) in these proceedings replied that it was a case of express dismissal by the (Employer)"

14

The Applicant's account of the proceedings went on to explain how the Employer gave evidence as to his dealings with the Applicant and expressly rejected the contention that he had dismissed the Applicant and is recorded in the Applicant's application as saying in relation to the allegation that he dismissed the Applicant:-

"No not at all, in fact the opposite, I pleaded with her tostay."

15

It then appeared that when the Employer was questioned by Counsel on behalf of the Applicant to relation to a variety of matters including the Applicants conditions of employment and changes therein that the judge was stated to have interrupted saying that he would not allow that line of questioning. The Judge is quoted as saying that the Applicant had relied on an express dismissal and that he was declining to hear evidence of what he understood to be an allegation of constructive dismissal. The Applicants claimed that the Judge intervened on ten occasions to prevent Counsel on behalf of the Applicant cross-examining witnesses in relation to matters other than express dismissal. It is also common case that the Judge would not permit Counsel to open certain legal authorities in relation to the meaning of dismissal in law.

16

It was the Applicant who provided the following account of the judgement of the Judge as...

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