Fuller v Minister for Agriculture

• Jurisdiction: Ireland
• Judge: Mrs Justice McGuinness
• Judgment Date: 16 March 2005
• Neutral Citation: [2005] IESC 14
• Court: Supreme Court
• Docket Number: [S.C. No. 307 of 2003]
• Date: 16 March 2005

FULLER & ORS v MIN FOR AGRICULTURE & ANOR

BETWEEN

MARIE FULLER, ANNE-MARIE COLLINS, NUALA O'MAHONY, CARMELKELLEHER, BRENDAN FARR, MARGARET COLLINS, GRETTA COLEMAN, GERALDINEHURLEY, KAREN MURPHY, MAIREAD OCONNELL, GRETE HEGARTY, BRIAN O'REGAN,HUGH O'REILLY AND DEIRDRE COOMEY

APPLICANTS/RESPONDENTS

AND

THE MINISTER FOR AGRICULTURE AND FOOD AND THE MINISTERFOR FINANCE

RESPONDENTS/APPELLANTS

[2005] IESC 14

Murray C.J.

McGuinness J.

Hardiman J.

Record no. 307/2003

THE SUPREME COURT

Civil service

Industrial action - Discipline - Disciplinary matters concerning civil servants -Unauthorised absence from duty - Physical presence at place of work - Partial withdrawal from work duties as form of industrial action - Refusal to perform core duties - Remuneration - Whether removal from payroll permitted - Carr v Minister for Education [2001] 2 ILRM 272 considered -Civil Service Regulation Act 1956 (No 46), ss13, 14, 15 and 16 - Appeal dismissed; removal from payroll ultra vires

Facts: The respondents/appellants appealed from the judgment of Carroll J. in the High Court, whereby she held that the respondents acted ultra vires in removing the applicants from the payroll of the Department of Agriculture and Food pursuant to section 16 of the Act of 1956. The applicants who were civil servants engaged in limited industrial action, whereby they attended at their place of work but refused to perform certain normal duties. The applicants received written and oral warnings from the respondents prior to being removed from the payroll. However, the applicants alleged that the respondents acted ultra vires, as the applicants were not absent from duty within the meaning of that term as contained in section 16 of the 1956 Act. The respondents claimed that the learned trial judge erred in fact and in law in determining that the applicants' refusal to perform part of their duties did not and could not constitute 'unauthorised absence from duty' within the meaning of section 16 of the 1956 Act.

Held by the Supreme Court (Murray C.J., McGuinness, Hardiman JJ) in dismissing the appeal: That construing section 16 of the Act of 1956 in light of the plain meaning of the words used and in the contextual light of the surrounding provisions of the statute the term 'absence from duty' took its literal meaning, as held by the learned trial judge, of physical absence from the place of work. Consequently, the partial withdrawal from work duties by the applicants did not constitute unauthorised absence from duty under section 16 and therefore the respondents acted ultra vires in removing the applicants from the payroll pursuant to section 16.

Reporter: L.O'S.

CIVIL SERVICE REGULATION ACT 1956 S16

CIVIL SERVICE REGULATION ACT 1956 S13

CIVIL SERVICE REGULATION ACT 1956 S14

CIVIL SERVICE REGULATION ACT 1956 S15

CIVIL SERVICE REGULATION ACT 1956 S3

CIVIL SERVICE REGULATION ACT 1956 S14(3)

CIVIL SERVICE REGULATION ACT 1956 S15(5)

BOWES & PARTNER v PRESS 1894 1 QB 202

ROYLE v TRAFFORD BOROUGH COUNCIL 1984 IRLR 184

MILES v WAKEFIELD METROPOLITAN DISTRICT COUNCIL 1987 AC 539

HOWARD v COMMISSIONERS OF PUBLIC WORKS 1994 1 IR 101

MAXWELL INTERPRETATION OF STATUTES 12ED 28

BLACK'S LAW DICTIONARY 1990 "ABSENCE"

BLACK'S LAW DICTIONARY 1990 "ABSENT"

ASHBURY v ELLIS 1893 AC 339

CIVIL SERVICE REGULATION ACT 1956 S17

CIVIL SERVICE REGULATION ACT 1956 S17(2)

CARR v MIN EDUCTION & LIMERICK VOCATIONAL EDUCATION COMMITTEE (VEC) 2001 2 ILRM 272

VOCATIONAL EDUCATION (AMDT) ACT 1944

CIVIL SERVICE REGULATION ACT 1956 S16(a)

1 Judgment of Mrs Justice McGuinnessdelivered the 16th day of March 2005

INTRODUCTION

2 This is an appeal by the respondents from the judgment of Carroll J. (8th July 2003) in judicial review proceedings. The learned trial judge held that the respondents had acted ultra vires in removing the applicants from the payroll of the Department of Agriculture and Food pursuant to section 16 of the Civil Service Regulation Act 1956. The applicants are civil servants in that Department who were at the time of their purported removal from the payroll engaged in an industrial dispute with the first named respondent.

FACTUAL BACKGROUND

3 The background to the dispute and to the applicants" judicial review proceedings is set out in the grounding affidavit of the first named applicant, Marie Fuller. The main facts are not in dispute. All the applicants were at the time established civil servants working in the office of the Department of Agriculture and Food in Clonakilty, Co. Cork. One of the applicants, Carmel Kelleher, held the rank of staff officer; all the remaining applicants were clerical officers. All the applicants were members of the Civil and Public Service Union ("the CPSU"). During the early part of 2003 an industrial dispute arose between the first named respondent ("the Department") and the CPSU concerning promotional and grading structures in the Department'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 one relevant to these proceedings, this "limited industrial action" consisted in the staff members concerned attending at their place of work but refusing to deal with telephone and fax queries both in the mornings and in the afternoons and refusing to deal with counter queries in the afternoons. Dealing with these queries was part of the normal duties of the officersconcerned.

4 This form of industrial action commenced in the Clonakilty office on the 23rd April 2003, notice of the impending action having been given to the Department by the CPSU by letter dated the 16th April 2003. When the limited industrial action commenced on 23rd April Ms Fuller and the other applicants met with Ms Kathryn Twomey, a higher executive officer, who asked whether they were willing to resume their normal duties. They refused. They were then informed that if they continued to refuse to resume their normal duties they would be served with a written warning followed by a final verbal warning followed by removal from the payroll. On 25th April 2003 Ms Twomey issued a written warning and a final verbal warning to the applicants. Again the applicants were asked if they would resume normal duties. They refused.

5 Later on 25th April each applicant received an e-mail in the followingterms:

"Dear Colleague,"

6 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 1956with effect from 28th April 2003 until you resume normalduties.

7 An original letter will issue to each individual by post.

8 Joe Shorthall

9 Personnel Division."

10 From their removal from the payroll the applicants ceased to attend at work and placed a picket on the Clonakilty office. It appears that their removal from the payroll was confirmed by letters addressed to them at the office.

11 On 12th May 2003 the applicants issued their judicial review proceedings. They were granted leave by order of the High Court (Quirke J.) on that date. Leave was granted to apply for the followingreliefs:

12 i "I. Certiorari of the decision to remove the applicants from the payroll from 28th April 2003.

13 ii II. An order of mandamus directing the respondents to restore the applicants to the payroll as and from 28th April 2003.

14 iii III. A declaration that the removal of the applicants from the payroll from 28th April 2003 in purported reliance upon section 16 of the Civil Service Regulation Act 1956is ultra vires section 16 of the 1956 Act null and void and of no force or effect.

15 iv IV. A declaration that the removal of the applicants from the payroll from 28th April 2003 in purported reliance upon section 16 of the Civil Service Regulation Act 1956was carried out in breach of natural justice and fair procedures and is null and void and of no force or effect."

16 Sixteen grounds for these reliefs were allowed. Grounds 1 to 11 set out the factual background; grounds 12 to 15 are those which are relevant to the present appeal and they were set out as follows:

17 12. "The respondents acted outside the authority conferred on them 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.

18 13. Further and without prejudice to the foregoing the respondents acted outside the authority conferred on them by section 16 of the 1956 Act in removing the applicants from the payroll in that the said removal amounted to a suspension from duty without pay. Section 16 does not authorise suspension

19 14. Further and without prejudice to the foregoing, in purporting to suspend the applicants without pay under section 16 of the 1956 Act, the respondents deprived the applicants of the rights which they would have enjoyed had they been suspended under section 13 of the 1956 Act and denied their pay under section 14 of the 1956 Act in accordance with the procedures laid down by Circular 1/92.

20 15. Further and without prejudice to the foregoing, the respondents acted outside the authority conferred upon them by section 16 of the 1956 Act in removing the applicants from the payroll in that the said removal amounted to the imposition of a penalty upon the applicants and the respondents did not have power to impose such a penalty and the respondents did not afford the applicants fair procedures prior to the imposition of that penalty."

21 The respondents filed a...