O'Donnell v Tipperary (South Riding) County Council

• Jurisdiction: Ireland
• Judge: Denham J.
• Judgment Date: 18 March 2005
• Neutral Citation: [2005] IESC 18
• Docket Number: [S.C. No. 375 of 2004]
• Court: Supreme Court
• Date: 18 March 2005

O'DONNELL v TIPPERARY (SOUTH RIDING) CO COUNCIL

BETWEEN

PATRICK O'DONNELL

APPLICANT/APPELLANT

AND

TIPPERARY (SOUTH RIDING) COUNTY COUNCIL

RESPONDENT

[2005] IESC 18

MURRAY C.J.

DENHAM J.

MACKEN J.

Record No. 375 of 2004

THE SUPREME COURT

JUDICIAL REVIEW

Remedy

Availability - Public or private law - Alternative remedies of appeal or judicial review - Natural justice and fair procedures - Whether decision of respondent amenable to judicial review - Whether appeal or review more appropriate in circumstances - Whether dismissal in accordance with principles of natural justice and fair procedures - Geoghegan v Institute of Chartered Accountants [1995] 3 IR86; Beirne v Commissioner of An Garda Síochána [1993] ILRM 1; McGoldrick v An Bord Pleanála [1997] 1 IR497; i [2000] 3 IR431; Stefan v Minister for Justice [2001] 4 IR 203 considered - Application refused (375/2004 - Supreme Court - 18/3/2005) [2005] IESC 18 - [2005] 2 ILRM 168

O'Donnell v Tipperary (South Riding) Co Co

Facts: The applicant applied for judicial review of a decision of the County Council to terminate its contract of employment with the applicant in the absence of a proper inquiry by the County Council. Three issues arose for decision in the appeal: firstly, whether the case was justiciable as a matter of public law; secondly, what was the effect of the presence of an alternative remedy; and thirdly, whether the procedures were so unfair as to warrant judicial review.

Held by the Supreme Court (Murray CJ, Denham and McCracken JJ) in dismissing the appeal: firstly, that while there was a contract between the applicant and the County Council it had a significant public element and the decision to terminate was amenable to judicial review; secondly, that the appropriate remedy was an appeal to the Employment Appeals Tribunal and that the matter should continue before the Employment Appeals Tribunal; and thirdly, that the procedures were not so unfair as to warrant a judicial review.

Reporter: R.W.

BEIRNE v COMMISSIONER OF AN GARDA SIOCHANA 1993 ILRM 1

GEOGHEGAN v INSTITUTE OF CHARTERED ACCOUNTANTS IN IRELAND 1995 3 IR 86

UNFAIR DISMISSALS ACT 1977

MCGOLDRICK v BORD PLEANALA 1997 1 IR 497

BUCKLEY v KIRBY & DPP 2000 3 IR 431 2001 2 ILRM 395

STEFAN v MIN FOR JUSTICE & REFUGEE APPEALS AUTHORITY 2001 4 IR 203 2002 2 ILRM 134

1 Judgment delivered on the 18th day of March, 2005 by Denham J.

2 1 This is an appeal by Patrick O'Donnell, the applicant/appellant, hereinafter referred to as "the applicant", from the judgment of the High Court ( Ó Caoimh J.) delivered on the 30th October, 2002. The respondent, Tipperary (South Riding) County Council, is referred to hereinafter as "the County Council".

3 2 On the 20th November, 2000 the applicant was given leave by the High Court ( Ó Caoimh J.) to seek by way of judicial review:

4 (i) Certiorari quashing the decision of the County Council taken on the 3rd October, 2000 to terminate its contract of employment with the applicant;

5 (ii) A declaration that the County Council was not entitled to decide to terminate the applicant's contract of employment with the respondent in the absence of a proper enquiry into the County Council's perception that the applicant was making wrongful and illegal pay claims and in the absence of a process of appeal to an independent body being open to the applicant; and

6 (iii) Damages.

7 3 Having heard the case on the 29th and 30th October, 2002 the High Court refused the application. The High Court held that the contract of employment between the parties set up a relationship which was one of private law and a contractual relationship and that thus the relief of judicial review did not lie, that an alternative remedy would lie in the context of private law remedies. In spite of this decision the learned trial judge then did proceed to address the other issues raised by the applicant. Having considered the matters raised, the High Court refused relief on the grounds alleged, which related to the nature of the making of the decision. The High Court directed that the matter should continue before the Employment Appeal Tribunal.

8 4 Three issues have arisen for decision on this appeal and although they are to some extent inter-related, I will deal with them separately. The first issue is whether judicial review is applicable, whether the case is justiciable as a matter of public law. Secondly, the effect of the presence of an alternative remedy falls to be determined. Thirdly, in issue is whether the procedures were so unfair as to warrant an order of judicial review.

9 2 5.1 The first issue is whether the dismissal of the applicant by the County Council is a matter which is governed by public law. If it is a matter of public law then it may be subject to judicial review, if not then no such review may proceed.

10 3 5.2 The fundamental facts of the case were not in dispute. The applicant was appointed Station Officer of Clonmel Fire Station and took up duty on the 13th March, 1989, having been offered employment on the 30th January, 1989. The offer, on County Council paper, was "employment as Station Officer, Clonmel Fire Station". Enclosed was a "Form of Acceptance of Office", together with Terms and Conditions of Employment and Tenancy Agreement. The Tenancy was an agreement whereby the applicant as Station Officer agreed to occupy the premises known as Station Officer's Residence. The applicant remained as Station Officer until his dismissal on the 3rd October, 2000 for allegedly making fraudulent pay claims.

11 4 5.3 The first relevant factor is the name of the position of the applicant, which was "Station Officer". Thus the title presumes a post as an officer rather than an employee.

12 5 5.4 Secondly, the post held by the applicant has a public element. The County Council is the fire authority, this is manifestly a public authority. The fact that the applicant's post is titled an "Office" is not determinative, but considered in tandem with the public nature of the County Council's relevant fire protection functions, it is clear that the function of the Station Officer of a Fire Station contains a public element and that it is an office in the public domain.

13 6 5.5 The seniority (and thus the responsibility) of the office held by the applicant is also a relevant factor. The applicant as Station Officer was the most senior person working in Clonmel Fire Station at all material times and answerable only to the Chief Fire Officer.

14 7 5.6 The burden is on the County Council to show that the contract between the parties is one of private law. I adopt the approach taken by Finlay C.J. in Beirne v. Commissioner of An Garda Síochána I.L.R.M. 1 at p.2, where he stated:

"The principle, which, in general, excludes from the ambit of judicial review decisions made in the realm of private law by persons or tribunals whose authority derives from contract is ... confined to cases or instances where the duty being performed by the decision making authority is manifestly a private duty and where his right to make it derives solely from contract or solely from consent or the agreement of the parties affected. Where the duty being carried out by a decision-making authority ... is of a nature which might ordinarily be seen as coming within the public domain, that decision can only be excluded from the reach of the jurisdiction in judicial review if it can be shown that it solely and exclusively derived from an individual contract made in private law."

15 In that case it was held that the contract of a trainee garda, which included a termination clause, had a public element and that the decision to terminate was amenable to judicial review. The public element was to be found in the nature of the functions of the gardaí. Applying that decision to the facts of this case, I am satisfied that the duty being performed by the Fire Service, and the County Council, is of a nature which would ordinarily be seen as coming within the public domain. Evidence has not been called to exclude this from the public domain.

16 2 5.7 In Geoghegan v. Institute of Chartered Accountants [1995] 3 I.R. 86 factors relevant to the issue as to whether or not the decision was amenable to judicial review were analysed. A number of those factors are relevant to this case and I apply those principles. First, this case relates to the Fire Service and to a Station Officer of that Service, a service of importance in the community for fighting fires and flooding, amongst other matters. Such a service is necessary within a State, either to be provided by the State or delegated by the State. Secondly, the sources of the general powers of the County Council are to be found in legislation. Thirdly, the functions of the County Council, the Fire Service, and the Station Officer come within the public domain of that State. Fourthly, the consequences of the County Council's decision may be very serious for the applicant. Amongst these factors I lay emphasis on the functions of the County Council, the Fire Service, and the Station Officer as functions manifestly in the public domain of the State.

17 3 5.8 In conclusion on this issue, I am satisfied that the employment of the Station Officer of a fire station is a matter within the public domain and amenable to judicial review. While there was a contract between the plaintiff and the County Council, it has a significant public element and the decision to terminate was amenable to judicial review.

18 6 The second issue on this appeal is the availability of an alternative remedy. The alternative remedy submitted, that is alternative to judicial review by the courts, is under the Unfair Dismissals Legislation, the Employment Appeal Tribunal.

19 4 6.1...