Fuller v Minister for Agriculture
| Jurisdiction | Ireland |
| Judge | Justice Carroll |
| Judgment Date | 08 July 2003 |
| Neutral Citation | [2003] IEHC 27 |
| Docket Number | RECORD NO 321 JR/2003 |
| Court | High Court |
| Date | 08 July 2003 |
[2003] IEHC 27
THE HIGH COURT
BETWEEN
AND
Judicial review - Certiorari - Removal from payroll - Civil Service - Interpretation of s. 16 of Civil Service Regulations Act 1956 - Whether partial withdrawal from work duties constituted unauthorised absence from duty - Civil Service Regulations Act 1956
The net point in this case was the interpretation of s. 16 of the Civil Service Regulations Act 1956. The applicants engaged in industrial action and were removed from the payroll pursuant to the Act until normal duties resumed. They applied for judicial review on the basis that the removal was ultra vires the Act and the removal was carried out in breach of natural justice.
Held by Carroll J. in ordering that the applicants were entitled to an order of certiorari of the decision to remove the applicants and a declaration that the removal of the applicants in purported reliance on s. 16 of the Act was ultra vires and of no force and effect that partial withdrawal from work duties did not constitute unauthorised absence from duty.
Justice Carrolldelivered the 8th day of July2003.
The net point at issue in this case is the interpretation of Section 16 of the Civil Service Regulations Act 1956. It arises in the following circumstances:- All the applicants are established civil servants. All of them save one hold the rank of clerical officer. One of the applicants, Carmel Kelleher holds the rank of staff officer. They all work in the office of the Department of Food and Agriculture (the Department) Clonakility Co. Cork. They are all members of the Civil and Public Service Union (CPSU).
An industrial dispute arose between CPSU and the Department. The CPSU gave notice by letter of 16 th April 2003 that limited industrial action would commence in the Department's office at Clonakility on 23 rd April 2003.
The Applicants refused to deal with telephone queries, morning and afternoon, and refused to deal with counter queries in the afternoon. Having been warned orally the Applicants were issued with written warnings on 24 th April 2003 stating they had been requested to deal with phone calls/fax messages/perform counter duties which are described as part of the core duties of the grade and warning that failure to deal with these would result in removal from thepayroll.
On 23 rd April 2003 a letter was issued to the Applicants referring to the warnings regarding refusal to perform the core duties of the grade and stating arrangements had been made to remove them from the payroll pursuant to Section 16 of the Civil Service Regulation Act 1956(the 1956 Act) with effect from 28 th April 2003 until normal duties were resumed.
By Order of Quirke J. dated 12 th of May 2003 the Applicants were granted liberty to apply for judicial review seeking orders of certiorari and mandamus together with a declaration that the removal of the Applicants from the payroll from 28 th April 2003 was ultra vires the 1956 Act and was null and void and a declaration that the removal was carried out in breach of natural justice, fair procedures and was null and void. The grounds on which the relief was granted was set out at E in the statement grounding the application. The basic ground is that the Respondents acted outside the authority conferred by Section 16 of the 1956 Act in removing the Applicants from the payroll in that the Applicants were not absent from duty within the meaning of Section 16 of the 1956 Act.
In the statement of grounds of opposition the Respondents pleaded that by refusing to perform their core duties the Applicants while present at their place of work were absent from duty without authority and accordingly the Respondents acted lawfully.
In his affidavit on behalf of the Respondents Mr. Joe Shorthall refers at paragraph 4 and 6 to the Applicants' refusal to perform their key duties and says at paragraph 5 that it amounted to a refusal to perform core duties associated with their position as employees. He also said there was no question of the Respondent's disciplinary procedure or the terms of Sections 13, 14 and 15 of the 1956 Act applying to the present case. He said where the Applicants' refusal to perform duties arises in the context of ongoing industrial action, it would be inappropriate and fruitless to apply disciplinary procedures.
Section 16 of the 1956 Act provides as follows:-
(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 appropriateauthority
The Applicants submit that "unauthorised absence from duty" is not defined in the Act and ought to be given its literal meaning. If the words of a statute are precise and unambiguous they should be given their ordinary and natural sense. (See Maxwell...
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- Fuller v Minister for Agriculture
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Marie Fuller and Others v Minister for Agriculture, Food and Forestry
...discretion to prevent raising issue which should have been advanced in earlier proceedings - Fuller v Minister for Agriculture and Food [2003] IEHC 27, (Unrep, Carroll J, 8/7/2003); Fuller v Minister for Agriculture [2005] IESC 14, [2005] 1 IR 529; Thoday v Thoday [1964] 1 All ER 341; Carl......