Fuller and Others v Minister for Agriculture
| Jurisdiction | Ireland |
| Judge | Mr. Justice Gilligan |
| Judgment Date | 08 February 2008 |
| Neutral Citation | [2008] IEHC 95 |
| Court | High Court |
| Docket Number | No.1183 J.R./2005 |
| Date | 08 February 2008 |
[2008] IEHC 95
THE HIGH COURT
AND
CIVIL SERVICE REGULATION ACT 1956 S16
FULLER & ORS v MIN FOR AGRICULTURE & MIN FOR FINANCE 2005 1 IR 529
CIVIL SERVICE REGULATION ACT 1956 S15
CIVIL SERVICE REGULATION ACT 1956 S13
CIVIL SERVICE REGULATION ACT 1956 S14
THODAY v THODAY 1964 1 AER 341
CARL-ZEISS-STIFTUNG v RAYNER & KEELER LTD & ORS 1966 2 AER 536
HENDERSON v HENDERSON 1843 3 HARE 100
A (A) v MEDICAL COUNCIL & AG 2003 4 IR 302 2004 1 ILRM 372
JOHNSON v GORE WOOD & CO 2002 2 AC 1
DEANE v WILSON 1906 2 IR 405
MURPHY v AG 1982 IR 241
EMPLOYMENT LAW
Pay
Civil service - Employment dispute - Issue estoppel - Certiorari previously granted in respect of Minister's decision to remove employees from payroll - Strike initiated after removal from payroll - Whether order of certiorari entitled applicants to be paid for period of removal from payroll notwithstanding having taken strike action - Whether finding of invalidity in respect of Minister's decision equivalent to finding of invalidity of statutory instrument - AA v Medical Council [2003] 4 IR 302, Fuller v Minister for Agriculture and Food [2005] IESC 14 [2005] 1 IR 529, Murphy v Attorney General [1982] IR 241, Thoday v Thoday [1964] 1 All ER 341, Carl-Zeiss-Stiftung v Rayner and Keeler Limited (No 2 ) [1966] 2 All ER 536, Henderson v Henderson (1843) 3 HARE 100, Johnson v Gore Wood & Co [2002] 2 AC 1, Deane v Wilson [1906] 2 IR 405 and Hoffman-La Roche v Secretary of State for Trade and Industry [1975] AC 295 considered - Civil Service Regulation Act 1956 (No 46), ss 13, 14, 15, and 16 - Relief refused (2005/1183JR - Gilligan J - 8/2/2008) [2008] IEHC 95
Fuller v Minister for Agriculture, Food and Forestry
Facts: The issue arose as to whether the applicants who were unlawfully removed from a payroll were entitled to be paid their full wages and to re-instatement where they were not available for work by reason of their strike. The applicants had sought inter alia orders of mandamus to such effect.
Held by Gilligan J. that the strike was an escalation of an ongoing dispute. It was no valid proposition of law that a striker was entitled to be paid wages and pension entitlements when unavailable for work. The applicants were entitled to be paid for the period of time between being unlawfully removed and going on strike which was a de minimis situation. They lost their entitlement by being unavailable for work. The reliefs sought would be refused.
Reporter: E.F.
Mr. Justice Gilligandelivered the 8th day of February, 2008
All the applicants were members of the Civil and Public Service Union (hereafter referred to as the "C.P.S.U."). The first fourteen named applicants in these proceedings were at the material time, established civil servants working in the office of the Department of Agriculture and Food in Clonakilty, County Cork. One of the applicants held the rank of staff officer, while all other remaining applicants were clerical officers.
During the early part of 2003, an industrial dispute arose between the first named respondent and the C.P.S.U. concerning, inter alia, promotional and grading structures in the first named respondent's local offices. The members of the Union engaged in what is described as "limited industrial action" in a number of local offices throughout the country. In the Clonakilty office, which is the most relevant to these proceedings but typical of what occurred in various offices, the limited industrial action consisted of staff members concerned attending at their place of work butrefusing for one week in three to deal with telephone and fax queries, both in the mornings and afternoons, and refusing to deal with counter queries in the afternoons. Dealing with these queries was part of the normal duties required of the officers concerned.
It appears that in early April, 2003 matters came to a head when the first named respondent's servants or agents advised the various applicants that unless they were willing to return to their normal duties a series of warnings would be given which, if not complied with, would be followed by removal from the payroll. The various applicants did not return to normal duties as requested.
Each of the applicants on various dates received a letter in the following terms:
"I refer to the verbal and written warnings that have issued to you regarding your refusal to perform the core duties of your grade. Despite these warnings you have refused to perform these duties and accordingly arrangements have been made to remove you from the payroll pursuant to section 16 of the Civil Service Regulation Act, 1956 with effect from [a particular day in April] until you resume normal duties."
Section 16 of the Civil Service Regulation Act 1956 states:-
2 "(1) A civil servant shall not be paid remuneration in respect of any period of unauthorised absence from duty.
(2) If any question arises as to whether a particular period of absence from duty of a civil servant is a period of unauthorised absence from duty the question shall be determined by the appropriate authority."
From the date of their removal from the payroll, the various applicants declined to attend at work and placed a picket on their various offices. The first named applicant was working in the Clonakilty office at that time. This situation continued for a number of weeks until eventually the dispute was resolved.
However in the intervening period prior to the resolution of the dispute, on the 12 th day of May, 2003, the first fourteen named applicants issued judicial review proceedings and were granted leave of this Court (Quirke J.) on that date to apply for various reliefs including orders of certiorari, mandamus and a number of declarations.
The first fourteen named applicants' application in Fuller v. The Minister for Agriculture and Food and the Minister for Finance [2005] 1 I.R. 529, proceeded through the High Court and was eventually successful. This decision was appealed by the respondents to the Supreme Court, where the appeal was dismissed. The Court held in dismissing the appeal that a partial withdrawal from work duties did not constitute unauthorised absence from duty pursuant to s. 16 of the Civil Service Regulations Act, 1956 and that the words "absence from duty" in s. 16 of the Act of 1956 should bear their literal meaning of physical absence from the place of work.
The Court (McGuinness J.) stated at pp.548 to 549 that:-
"It is the duty of the court to construe s. 16 in the light of the plain meaning of the words used and also in the contextual light of the surrounding provisions of the statute. Taking this approach my view is that 'absence from duty' bears the literal meaning, as held by the trial judge, of physical absence from the place of work.
I am fortified in this view by another factor which was put forward by counsel for the applicants. If a partial withdrawal from work duties can constitute 'absence from duty', the question must arise as to what degree of withdrawal fromduties is required to trigger the mandatory withdrawal of all remuneration. The respondents describe the applicants as having refused to perform 'core duties' and no doubt the duties in question were important duties. In future cases, however, the question as to whether particular duties are, or are not, core duties would be bound to arise, giving rise to what counsel for the applicants describes as 'grey areas'. Section 16 does not permit any partial withdrawal of remuneration. If the respondents' interpretation is correct, partial failure to perform duties, where these are held to be (somewhat ill-defined) core duties, must always result in entire withdrawal of remuneration. It seems to me unlikely that this can have been the intention of the legislature.
The trial judge suggested that where a civil servant decided that he or she would not perform certain duties the respondents' remedy would fall under s. 15 as neglect of official duties. Both in this court and in the court below it was submitted by the respondents that both the applicants and their trade union would certainly object to their action being described as grave misconduct or in the other terms used in s. 15, and that the use of ss. 13 to 15 would be totally inappropriate in the context of an industrial dispute. In this, I believe, the respondents are perfectly correct. I would suggest, however, that these strictures apply equally to s. 16.
In my view ss. 13 to 16 of the Act of 1956 were intended by the Oireachtas to deal with matters of discipline concerning individual civil servants. The Oireachtas has through other legislation provided a framework for the resolution of industrial disputes and has established bodies such as the Labour Relations Commission, the Labour Court and other specialist negotiation and arbitration bodies to this end. These means are available to the applicants and the respondents as a means of resolving their dispute.
I am in agreement with the trial judge in holding that the partial withdrawal from work duties does not constitute unauthorised absence from duty under s. 16. I am also in agreement with her that the question of whether the removal from the payroll was carried out in breach of natural justice and fair procedures does not arise and nor does the issue as to whether the applicants were in fact suspended."
It appears that when the dispute was actually resolved on the ground between the parties, no provision was made for loss of earnings and pension entitlements arising from the days that were lost between the date of removal from office and the date when the...
To continue reading
Request your trial
-
Case Number: ADJ-00030744. Workplace Relations Commission
...the Complainant did not attend for work whilst being fit to do so during this period.In the matter of Fuller -v- Minister for Agriculture [2008] IEHC 95, Gillian J. referred to the following passage,“There was no contract to pay it unless it was earned. If she had not worked at all during t......