Gunn v Bord an Choláiste Náisiúnta Ealaíne is Deartha

• Jurisdiction: Ireland
• Judgment Date: 01 January 1990
• Date: 01 January 1990
• Docket Number: [1983 No. 4965P]
• Court: Supreme Court

Gunn v. Bord an Choláiste Náisiúnta Ealaíne is Deartha

Thomas Gunn

Plaintiff

and

Bord an Choláiste Náisiúnta Ealaíne is Deartha

Defendant

[1983 No. 4965P]

High Court

Supreme Court

Judicial review - Natural justice - Office-holder or servant - Dismissal - Lecturer in National College of Art and Design - Board - Statutory foundation - Decision to dismiss - Powers - Delegation - Delegation of powers by Board to Director - Whether dismissal ultra vires - Whether in breach of natural justice - National College of Art and Design Act, 1971 (No. 28).

The plaintiff was a lecturer in art and design appointed by the defendant and employed as head of the department of visual communications in the faculty of design. Section 17, sub-s. 9 of the National College of Art and Design Act, 1971, provides that the defendant "may remove or suspend from office or employment any of ils officers or servants." Further provisions authorised the delegation of the defendant's powers to ils chief officer, described in the Act as "the Director to An Bord."

By letter of the 10th December, 1980, the Director notified the plaintiff that following certain allegations of improprieties concerning the plaintiff and a third party, the plaintiff was to be suspended on full pay pending the completion of the defendant's investigations. Correspondence between solicitors retained on behalf of the plaintiff and the defendant's followed. At a meeting of the defendant on the 25th January, 1982, the Director was authorised by a resolution to "either discipline, suspend without pay or dismiss" the plaintiff subject to an appeal to the defendant with similar procedures to those laid down in an agreement with the Federated Workers Union of Ireland dated the 23rd September, 1981. By letter dated the 28th January, 1982, the Director informed the plaintiff that the defendant now proposed to take a decision concerning his future employment but that before so doing they wished to afford him a further opportunity of making further submissions in relation to the case against him. The letter also stated that as a result of further inquiries made by the defendant, it had considered the plaintiff's explanations and "were not satisfied with the explanations received to date." The plaintiff's solicitors replied on the following day that they had already tendered any explanations they proposed to give and, noting that the gardai had discontinued their investigations, demanded compensation for their client. By a further letter dated the 12th August, 1982, the Director informed the plaintiff that the defendant was obliged to take a decision in relation to him shortly and allowed the plaintiff a further period of 14 days to make representations in writing. By letter dated the 6th September, 1982, the Director notified the plaintiff that he had decided to terminate his employment by the College. The letter then went on to give him one month's notice of termination appropriate to his conditions of employment and informed him that he was entitled to appeal against the decision of dismissal to the defendant. The plaintiff did not appeal the dismissal to the defendant, but instead instituted proceedings in the High Court seeking declarations that the said dismissal was invalid in that it was made beyond the powers of the Director and in breach of the principles of natural and constitutional justice, inter alia, in that at the time of dismissal the Director was a third party to libel proceedings instituted by the plaintiff arising out of the allegations of improprieties.

Held by Costello J. and affirmed on appeal by the Supreme Court (Walsh, Griffin and McCarthy JJ.), in refusing the declaration sought and declaring the dismissal valid, that on the facts the defendant and the Director had acted within the powers conferred upon them by statute and the plaintiff had been given ample opportunities of being heard in relation to the case being made against him and of appealing the decision itself and in all the circumstances the plaintiff had failed to show any bias or ulterior motive which vitiated that decision.

Per curiam (Walsh, Griffin and McCarthy JJ.): In cases of dismissal or suspension the requirements of the rules of natural justice or of constitutional justice must be determined in relation to the procedures agreed or applicable in each particular case and are not confined to holders of office.

Glover v. B.L.N. Ltd.IR [1973] I.R. 388 explained.

Cases mentioned in this report:—

Corrigan v. Irish Land CommissionIR [1977] I.R. 317.

Farrell v. Minister for Defence (Unreported, High Court, Murphy J., 10th July, 1984).

Glover v. B.L.N. Ltd.IR [1973] I.R. 388.

Heneghan v. Western Region Fisheries BoardDLRM [1986] I.L.R.M. 225.

Ingle v. O'BrienDLTR (1974) 109 I.L.T.R. 7.

McGrath v. Trustees of Maynooth CollegeDLRM [1979] I.L.R.M. 166.

Moran v. Attorney GeneralIRDLTR [1976] I.R. 400; (1975) 110 I.L.T.R. 85.

O'Brien v. Bord na MónaIRDLRM [1983] I.R. 255; [1983] I.L.R.M. 314.

O'Donoghue v. Veterinary CouncilIR [1975] I.R. 398.

Ridge v. BaldwinELRWLRUNKUNK [1964] A.C. 40; [1963] 2 W.L.R. 935; [1963] 2 All E.R. 66; (1963) 61 L.G.R. 369.

Plenary Summons.

The plaintiff issued a plenary summons in 1983. By his statement of claim delivered on the 19th September, 1983, he sought declarations that his employment with the defendants as head of Visual Communications was valid and subsisting. The matter came on for hearing before the High Court (Costello J.) on the 9th and 10th October, 1985.

The plaintiff appealed from the judgment and order of the High Court and the appeal came on for hearing before the Supreme Court (Walsh, Griffin and McCarthy JJ.) on the 19th November, 1987.

Cur. adv. vult.

Costello J.

By a notice of the 16th November, 1982, the plaintiff appealed to the Employment Appeals Tribunal under the provisions of the Unfair Dismissals Act, 1977. In it he stated that he had received a dismissal notice on the 7th September, 1982, and that his employment had ended on the 7th October, 1982, and he claimed that he had been "wrongfully" dismissed and sought reinstatement and/or compensation and arrears of salary. But at the hearing of that appeal on the 12th April, 1983, it was submitted on his behalf that his purported dismissal was an invalid one and as a result the Tribunal adjourned the matter to enable these proceedings to be brought. Instituted on the 14th July, 1983, they claim a declaration that the plaintiff's employment with the defendant is valid and subsisting; that it has not been validly terminated and that the defendant had acted in breach of his constitutional rights and the principles of natural justice. It has been agreed that I am only concerned with one issue, namely, the validity of the purported termination of the plaintiff's employment and not in any way as to whether it was unfair. Should I find against the plaintiff on this issue the matter will be re-entered before the Tribunal where the plaintiff I am told intends to pursue his remedies under the Act.

The allegation of invalidity is based on two separate grounds, (a) that the Director of the College of Art and Design had no authority to terminate the plaintiff's employment and (b) that because of a failure to observe the rules of natural justice (the phrase "constitutional justice" is used synonymously in the pleadings) the termination was void.

The facts relevant to these issues are as follows. The plaintiff joined the staff of the College as apart-time teacher in its photography course in 1971 and by 1980 was head of the Department of Visual Communications in the Faculty of Design and employed on a full time basis. The exact terms and conditions of his contract of employment have not been established in evidence but it has been accepted, that it could have been terminated by a month's notice. The events which led eventually to these proceedings began on the 10th December, 1980, when the College's Director, Mr. Sheridan, wrote to the plaintiff informing him that the Board had considered an allegation against him at its meeting that day. He was told that he was suspended on full pay and he was afforded a "full opportunity of presenting any statement or representation you decide to submit in relation to this allegation." The allegation had been made by a Mr. Robert Bowes, a contractor who had carried out work on the College's premises, and was to the effect that the plaintiff had received £7,000 from him to "facilitate and hasten" the payment to Mr. Bowes of money owed to him by the College. Mr. Bowes' statement and photocopies of three cheques were later sent to the plaintiff whose solicitor wrote on the 5th January, 1981, denying the allegation and explaining that the payments had been made in respect of a joint business venture for the importation of certain products from Spain undertaken by the plaintiff and Mr. Bowes. After further correspondence the defendant's solicitors wrote on the 12th February, 1981, stating that Mr. Bowes had denied that the monies were paid as a contribution towards a joint business venture, and pointing out that "the matter shall have to be let stand for the present until the investigations of the Gardaí are complete."The Director had in fact referred the matter to the Garda authorities and early in March the plaintiff was interviewed by them and made a written statement on the matter. On the 27th March, 1981, he instituted High Court proceedings for damages for libel against Mr. Bowes. There the matter rested as far as the plaintiff was concerned until the 25th January, 1982, when the Board of the College, according to its minutes, "authorised the Director to either discipline, suspend without pay or dismiss Mr. Gunn, subject to an appeal to An Bord with similar procedures to those laid down in the Agreement with the F.W.U.I. (Federated Workers Union of Ireland) dated the 23rd September, 1981." In pursuance of this resolution...