Flynn v an Post

JurisdictionIreland
CourtSupreme Court
JudgeHenchy J.,McCARTHY J.
Judgment Date03 April 1987
Neutral Citation1987 WJSC-SC 621
Docket Number[S.C. No. 251 of 1986],(251/86)
Date03 April 1987

1987 WJSC-SC 621

THE SUPREME COURT

Finlay C.J.

Walsh J.

Henchy J.

Hederman J.

McCarthy J.

(251/86)
FLYNN v. AN POST
STEPHEN FLYNN
v.
AN POST

Citations:

POSTAL & TELECOMMUNICATIONS ACT 1983 S45

CIVIL SERVICE REGULATION ACT 1956 S13

CONSTITUTION ART 37

CIVIL SERVICE REGULATION ACT 1956 S5

R V BRITISH BROADCASTING CORPORATION, EX PARTE LAVELLE 1983 1 AER

CIVIL SERVICE REGULATION ACT 1956 S13(1)(C)

FLYNN V DPP 1986 ILRM 290

POST AND TELEGRAPHS (DELEGATION OF MINISTERIAL DUTIES) ORDER, 1983 SI 59/1983

Synopsis:

DELAY

Tribunal

Enquiry - Commencement - Postponement - Propriety - Employment - Suspension from duty - Prior to 1/1/84 the plaintiff postman had been an established civil servant employed by the Department of Posts and Telegraphs - On that date he was transferred to the employment of the defendant company - On 9/4/84 one of the defendants" officers suspended the plaintiff from his duties, without pay - The defendants had accused the plaintiff of the misappropriation of mail - Immediately after the suspension, and at all material times thereafter, the plaintiff sought an immediate enquiry by the defendants into the matters alleged against the plaintiff, and an opportunity to controvert, at such enquiry, the accusation - The enquiry was not held - On 17/7/84 the plaintiff instituted in the High Court an action in which he claimed (inter alia) a declaration that the suspension was invalid - On 19/7/84 the plaintiff was charged with the commission of a criminal offence in connection with the alleged incidents which were the basis of his suspension - The plaintiff was subsequently tried on indictment and, on 15/11/85, a jury found him not guilty of the charges contained in the indictment - On 13/7/86 the plaintiff's claim in his civil action was dismissed and he appealed to the Supreme Court - The defendants had deliberately postponed the commencement of their domestic enquiry into the matters alleged against the plaintiff, pending the conclusion of the criminal proceedings and the civil action - Held, in allowing the appeal in part, that the defendants had been under a duty to commence their domestic enquiry as soon after the suspension as was reasonably practicable - Held that the defendants had been ready, after 1/8/84, to begin an enquiry into the matters alleged by them against the plaintiff and to give him an opportunity to controvert the allegations - Held that, in the circumstances, neither the civil action nor the criminal proceedings justified the postponement of an enquiry by the defendants - Held that the plaintiff's former liability, as a civil servant, to be suspended from duty in certain circumstances was continued after 1/1/84 by s.45 of the Act of 1983, and that the defendants" officer had properly exercised his power on 9/5/84 to suspend the plaintiff - Held that the plaintiff's suspension had been rendered invalid after 1/8/84 by the unjustified delay of the defendants in holding a domestic enquiry into the matters alleged against the plaintiff - Held that the plaintiff was entitled to recover from the defendants the amount of the salary which would otherwise have been paid to him after 1/8/84 - Civil Service Regulation Act, 1956, s.13 - Postal and Telegraphic Communications Services Act, 1983, s.45 - (251/86 - Supreme Court - 3/4/87) 1987 IR 68

|Flynn v. An Post|

EMPLOYMENT

Suspension

Fair procedures - Enquiry - Commencement - Postponement - Propriety - Civil action instituted by employee - Criminal prosecution against employee - ~See~ Delay, tribunal - (251/86 - Supreme Court - 3/4/87) 1987 IR 68

|Flynn v. An Post|

EMPLOYMENT

Suspension

Civil servants - Enquiry - Commencement - Postponement - Propriety - Suspension unduly prolonged - ~See~ Delay, tribunal - (251/86 - Supreme Court - 3/4/87) 1987 IR 68

|Flynn v. An Post|

NATURAL JUSTICE

Fair procedures

Employee - Suspension - Enquiry - Commencement - Postponement - Propriety - Suspension unduly prolonged - ~See~ Delay, tribunal - (251/86 - Supreme Court - 3/4/87) 1987 IR 68

|Flynn v. An Post|

STATUTORY INTERPRETATION

Implication

Power - Exercise - Civil servant - Suspension from duty - Prolonged suspension - Implication that unjustified prolongation not authorised by enactment - ~See~ Delay, tribunal - Civil Service Regulation Act, 1956, s.13 - (251/86 - Supreme Court - 3/4/87) 1987 IR 68

|Flynn v. An Post|

TRIBUNAL

Enquiry

Commencement - Expedition - Employee - Suspension - Employee suspended, without pay, from duties - Employer's obligation - Duty to hold enquiry, as soon as practicable, into matters alleged against employee - ~See~ Delay, tribunal - (251/86 - Supreme Court - 3/4/87) 1987 IR 68

|Flynn v. An Post|

1

Judgment of Henchy J. [HEDERMAN CONC] delivered the 3rd April1987

2

The plaintiff is a postman who was employed up to the 1 January 1984 in the Dublin Postal District of the Department of Posts and Telegraphs. On that date, consequent on the enactment of the Postal and Telecommunications Act, 1983, he and his fellow-employees were transferred into the employment of An Post. Under s. 45 of the 1983 Act he had the guarantee that, until his conditions of service were varied by An Post following consultation with recognised trade unions and staff associations, they would be no less beneficial than those he had enjoyed before his transfer to An Post. Prior to that transfer, he had the status of a permanent civil servant, but was liable to suspension by a suspending officer in the circumstances specified in s. 13 of the Civil ServiceRegulation Act, 1956- for example, if it appeared to the suspending officer that he was guilty of grave misconduct or of grave irregularity warranting disciplinary action. In the operation of the 1956 Act, certain office-holders had been appointed suspending officers. No similar powers of appointment were expressly given by the 1983 Act, but on the 31 January 1984 the Chief Executive of An Post, on the recommendation of the then Management Committee, purported to give powers of suspension to the holders of certain designated offices. One of the principal matters contended for by the plaintiff, both in the High Court and in this Court, is that this delegation of the power of suspension was ultra vires and that the power of suspension rested at all relevant times in the Chief Executive or the Board of An Post.

3

On the 9 May 1984 the plaintiff was suspended, without pay, from duty by Joseph Cosgrave, who as Senior Investigation Officer had been given power to suspend by the Chief Executive. It was the opinion of Mr. Cosgrave that, amongst other ancillary disciplinary offences (such as taking mail from a sorting bench without authorisation), the plaintiff was guilty of dishonestly misappropriating five postal packets. The plaintiff, who apparently had been under suspicion ofdishonesty, had been watched on this occasion by officials of An Post, and having taken written statements from those officials, as well as one from the defendant, Mr. Cosgrave gave the plaintiff written notice of immediate suspension without pay.

4

The first written response to this suspension was a letter of the 23 May 1984 from the plaintiff's solicitors protesting his innocence, questioning the validity in law of the suspension and demanding a full hearing within fourteen days. On the 7 June 1984 the solicitor to An Post replied saying that investigations were proceeding and that if disciplinary action were to be proceeded with, every opportunity would be given to the plaintiff to make representations. Further letters were exchanged, in the course of which the plaintiff's solicitors gave notice that if the plaintiff was not reinstated by the 6 July 1984 and his arrears of pay discharged, proceedings would be issued claiming, inter alia, that the purported suspension was ultra vires. Subsequent events show that what was thereby being contended was that there was no statutory basis for the power of suspension which Mr. Cosgrave purported to exercise.

5

What followed in the month of July 1984 is of cardinal importance. On the 3 July the solicitor to An Post wrote to the plaintiff'ssolicitors to say that the Director of Public Prosecutions had instructed him to prosecute the plaintiff on indictment and that in those circumstances he (the solicitor) would be unable to engage in further correspondence. This apparently meant that An Post would not take disciplinary action until the criminal trial was over. Those criminal proceedings were initiated on the 19 July 1984. However the dispute about the suspension had been precipitated into the High Court on the 17 July, when the plaintiff issued a plenary summons (followed by a statement of claim on the 18 September) claiming, inter alia, that the suspension was ultra vires. That claim, which has been persisted in up to today, was of fundamental concern to An Post, for, being a statutory company having the monopoly of the operation of the national postal service and having directly in its employment (according to official figures) some 9,000 people, the consequences of a judicial decision that what was apparently the only method of suspension used by An Post was ultra vires, would produce severely damaging and widespread consequences in relation to past, pending and projected suspensions. It was vital to An Post to get this contention judicially disposed of once it had been raised in the High Court, but because of theplaintiff's continued insistence that the suspension was invalid, his claim in that respect has not been conclusively determined untiltoday.

6

On the 23 July 1984 the plaintiff served a notice of motion seeking, inter alia, interlocutory injunctions reinstating the plaintiff in his employment, furnishing him with details of the alleged misconduct, and directing an inquiry by An Post into that misconduct. On the 25th July Keane J. refused to grant any of the reliefs asked for and the plaintiff did not appeal...

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