O'Neill v Iarnród Éireann

• Jurisdiction: Ireland
• Judge: FINLAY C.J.,HEDERMAN J.,McCarthy, J.
• Judgment Date: 01 January 1991
• Neutral Citation: 1990 WJSC-SC 2176
• Court: Supreme Court
• Date: 01 January 1991

1990 WJSC-SC 2176

THE SUPREME COURT

Finlay C.J.

Hederman J.

McCarthy J.

240/90

O'NEILL v. IARNROD EIREANN

NICHOLAS O'NEILL

v.

IARNROD EIREANN

Citations:

RSC O.84

TRANSPORT (REORGANISATION OF CORAS IOMPAIR EIREANN) ACT 1986

RYAN V VIP TAXI CO-OP IRISH TIMES 10.4.89

MURTAGH V ST EIMEARS NATIONAL SCHOOL UNREP BARRON 27.11.1989

O'NEILL V BEAUMONT HOSPITAL BOARD 1990 ILRM 419

RSC O.84 r20(7)

MURPHY V THE TURF CLUB 1989 IR 171

FLANAGAN V UCD 1989 ILRM 469

MACGABHANN V INCORPORATED LAW SOCIETY OF IRELAND 1989 ILRM 854

HAUGHEY, IN RE 1971 IR 217

CONSTITUTION ART 38.1

GLOVER V BLN LTD 1973 IR 388

RSC O.84 r18

GUPTA V TRINITY COLLEGE DUBLIN SUPREME 14.4.90 (NO WRITTEN JUDGMENT)

RSC O.84 r20(7)(b)

CONSTITUTION ART 38

Synopsis:

JUDICIAL REVIEW

Remedy

Scope - Contract - Employment - Termination - Fairness - Natural justice - Breach - Former employee refused leave to apply for judicial review - Dispute not in public domain - Appeal allowed - Rules of the Superior Courts, 1986, order 84 - Transport (Re-organisation of Coras Iompair Eireann) Act, 1986 - (240/90 - Supreme Court - 31/7/90) - [1991] ILRM 129

|O'Neill v. Iarnord Eireann|

1 JUDGMENT delivered on the 31st day of July 1990by FINLAY C.J.

2 This is an appeal by way of renewal of an ex parte application which was refused by Order of the High Court made by Barr J. on the 7th May1990.

3 The Applicant sought an Order pursuant to Order 84 of the Rules of the Superior Courts giving him liberty to issue proceedings for judicial review by way of certiorari of two decisions of the Respondents made onthe 20th February 1990 and the 11th April 1990 finding that he (the Applicant) who was employed by the Respondents as a food and beverage manager had been guilty of a disciplinary offence and which decisions approved a penalty of dismissal of the Applicant from the service of the Respondents. In the High Court the learned trial Judge found that on the Affidavits before him the Applicant had established that his dismissal occurred in circumstances which amounted to a breach of natural justice and failure to observe fair procedures and that on the information contained in those Affidavits that it was probable that he would succeed in plenary proceedings brought by him to remedy the matter.

4 The learned trial Judge, however, held that the relationship between the Applicant and the Respondent was one of a contractual relationship of master and servant and that in those circumstances the Applicant was not entitled to apply, pursuant to Order 84, for judicial review. He accordingly refused the application.

5 Counsel for the Appellant, on renewing this application by way of appeal, firstly submitted that by reason of the statutory transference of the staff of Coras Iompair Eireann to the present Respondents, Iarnrod Eireann, and the provisions to that end contained in the Transport (Reorganisation of Coras Iompair Eireann) Act 1986, that the decision reached by the Respondents was a decision in the domain of public law and that the body making the decision was carrying out a statutory function. In the alternative it was submitted that even if the decision made which was being challenged in these intended proceedings was not in the domain of public law that it was of such vital constitutional concern to the Applicant that on the proper construction of Order 84 he should be entitled to seek judicial review of it. Counsel in making these submissions in particular relied on an unreported decision of Lardner J. in Ryan v. VIP Taxi Co-Op, so far reported in the Irish Times Law Reports on the 10thApril 1989, and also on a decision which was unreported of Barron J. in Murtagh v. St. Eimear's National School, delivered on the 27th November 1989.

6 In O'Neill v. Beaumont Hospital Board, 1990 ILRM, 419, I, in delivering a judgment with which Walsh and Griffin JJ. agreed, stated asfollows:

7 The basis of an application for judicial review concerning the decision by an employer provided for specifically in a contract of employment with a person who is employed by that employer must be doubtful, but the Respondents in the High Court and in this Court, although they filed a statement of opposition or defence raising that point have not pursued it and have conceded that it is appropriate. I do not wish to decide that fact, but merely to record that it has been conceded, but I would approach the exercise of the jurisdiction which arises to the Court on this application in the same manner as I would if the proceedings had been instituted by a plenary summons and statement of claim and the Plaintiff was claiming an interlocutory injunction based on his contractual rights and the implied constituents of those rights and was seeking to prohibit by that interlocutory injunction the holding of the meeting concerned."

8 Notwithstanding the submissions made on behalf of the Applicant in this appeal I retain the grave doubt expressed by me as to the applicability of proceedings pursuant to Order 84 for the relief of certiorari which is the initial relief sought in this case in respect of a decision made in the course of disciplinary proceedings forming part of a private contract of employment.

9 However, it would appear from the judgments which have been delivered in the High Court and to which we have been referred, that differing decisions may have been reached by different judges of that Court concerning the issues which now arise.

10 In these circumstances, dealing as we are on this appeal with an application for leave to institute proceedings by way of judicial review, it seems to me that the appropriate Order to make is to give to the Applicant liberty to institute such proceedings. It may be that he is doing so at his own risk with regardto the jurisdiction of the Courts to entertain such an application brought in this way, quite apart from any risk he may have with regard to the merits of his application. However, until such time as the full and proper interpretation of Order 84 of the Rules has been considered and decided on on appeal by this Court, it would not appear to be correct to cut out the Applicant from his opportunity to pursue a relief by way of judicial review and at least to argue at the hearing of such application his right to proceed in this manner.

11 I would accordingly allow this appeal.

12 On the facts of the case, however, I am satisfied that the only relief which it would be appropriate to permit the Applicant to seek is an order for judicial review by way of certiorari of the decisions of the 28th February 1990 and the 11th April 1990 finding him guilty of a disciplinary offence and imposing the penalty of dismissal from the service of the Respondent Company. I would not in my discretion grant to him any stay onthe decisions pursuant to Order 84, rule 20(7) of the Rules of the Superior Courts.

13 In the statement to ground the application for judicial review upon which this application is based, eight grounds of relief are setout.

14 On the papers before the Court it does not appear to be disputed by the Applicant who has supplied to the Court an extract from the Staff Relations Scheme, which apparently applies in his case, that the provisions of that scheme permit at the hearings...