Nolan Transport (Oaklands) Ltd v Halligan

• Jurisdiction: Ireland
• Judge: O'Flaherty J.,Mr Justice Francis D Murphy
• Judgment Date: 01 January 1999
• Neutral Citation: [1998] IESC 5
• Docket Number: [S.C. No. 187 of 1995]
• Court: Supreme Court
• Date: 01 January 1999

NOLAN TRANSPORT LTD v. HALLIGAN, NOLAN,AYTON & SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION

BETWEEN:-

NOLAN TRANSPORT (OAKLANDS)LIMITED

PLAINTIFFS/RESPONDENTS

AND

JAMES HALLIGAN, HENRY NOLAN, ANTHONY (OTHERWISE TONY)AYTON & SERVICES INDUSTRICAL PROFESSIONAL TECHNICALUNION

APPELLANTS/DEFENDANTS

[1998] IESC 5

O'FLAHERTY J

DESHAM J

BARRINGTON J

MURPHY J

LYNCH J

No. 1008P/1993

187/95.

THE SUPREME COURT

Synopsis

Employment

Employment; trade unions; industrial action; industrial action carried out by trade union after secret ballot; whether bona fide trade dispute existed; whether purpose of industrial action to compel non-member employees to join union; whether secret ballot carried out in accordance with s. 14 Industrial Relations Act, 1990; whether trade union enjoyed protection of s. 13 of Industrial Relations Act, 1990 if secret ballot not properly carried out Held: Bona fide trade dispute existed; purpose of industrial action was not to compel non-member employees to join union; secret ballot not carried out in accordance with s. 14 Industrial Relations Act, 1990; trade union enjoyed protection of s. 13 of Industrial Relations Act, 1990 even though secret ballot not properly carried out (Supreme Court: O'Flaherty J., Denham J., Barrington J., Murphy J., Lynch J.15/05/1998) - [1999] 1 IR 128

Nolan Transport (Oaklands) Limited v. Halligan

Citations:

INDUSTRIAL RELATIONS ACT 1990 PART II

NORTHERN BANK FINANCE V CHARLTON 1979 IR 149

EDUCATIONAL CO OF IRELAND V FITZPATRICK (NO 2) 1961 IR 345

TRADE DISPUTES ACT 1906

SILVER TASSIE CO LTD V CLEARY 1956 90 ILTR 90

CONWAY V WADE 1909 AC 506

INDUSTRIAL RELATIONS ACT 1990 S14

INDUSTRIAL RELATIONS ACT 1990 S17

INDUSTRIAL RELATIONS ACT 1990 S13

INDUSTRIAL RELATIONS ACT 1990 S16

INDUSTRIAL RELATIONS ACT 1990 S19

INDUSTRIAL RELATIONS ACT 1990 S19(2)

INDUSTRIAL RELATIONS ACT 1990 S19(1)

G & T CRAMPTON LTD V BUILDING & ALLIED TRADES UNIONS UNREP LAFFOY 20.11.1997

INDUSTRIAL RELATIONS ACT 1990 S14(2)(f)

GOULDING V BOLGER 1977 IR 211

1 Judgment of Mr Justice Francis D MurphyDelivered The 15th Day of May 1998 [DENHAM,BARRINGTON, LYNCH CONC

BACKGROUND

2 The above named Nolan Transport (Oaklands) Limited (the Company) has carried on the business of haulage contractors from premises at Oaklands, New Ross, County Wexford since January 1981. Previously James Nolan (the Father) had carried on a similar business from the same premises. He discontinued the business carried on by him in 1980 as a result of financial and other difficulties.

3 The Father and his wife, Joan, have thirteen children, namely, Elizabeth, Anrie,"Patricia, John, Raymond, Seamus, Noel, Brendan, Richard, Kevin, Joan, Oliver and Sally. The share capital of the Company comprises 13 shares of £1 and each of the thirteen children is entitled to one such share. Before the Company was formed Patricia had had four years experience working in the Father's business. Raymond and Seamus were younger and had little experience of the business at that stage. In order to run the haulage business and to obtain the appropriate Department of Transport licence it was necessary for one of the management team to hold a certificate of professional competence. When the Company was formed only the Father had such a certificate. He remained involved in the management of the Company until Patricia obtained the necessary certificate. There is an express finding by the learned trial Judge that since that time the Father has taken no part in the management of the Company. He is employed largely in a labouring capacity in the Company's yards with a particular responsibility for the lorry wash and the operation of a JCB which is used to spread gravel across the yard on the premises.

4 As the children obtained experience they undertook particular areas of expertise. Patricia Nolan became the chief executive and company secretary. Elizabeth had accountancy experience and is responsible for the accounts and management of the finances of the Company. John manages the computer department. Seamus is the garage manager and his task is to manage the yard operation and to hire and fire drivers. Raymond, Noel and Kevin have responsibility for ensuring that work is carried out in different geographical areas. Brendan and Richard have particular areas of responsibility and others of the children work in the business during their school holidays. Joan Nolan, their mother, is the Chairperson and non executive director of the Company.

5 James Halligan, the first named Defendant, had been employed by the Company as a driver and in other capacities from time to time from 1981. He returned to the Company in about 1990 and about the end of 1991 resumed working as a driver. Henry Nolan, the secondly named Defendant, has been a driver with the Company since June 1992. Anthony Ayton is a branch official with the fourth named Defendant ("theUnion"). At all material times Mr Ayton worked in the Waterford branch of the Union where the Secretary was Ms Margaret DeCourcey. Another official was Ms Maura Caddigan who joined the Waterford branch in January 1993.

6 The Company employed approximately fifty-five drivers. In December 1992 some of those drivers wished to join a trade union. Apparently they had a grievance about their pay and conditions. In January 1993 Union membership application forms were distributed. On the 17th January 1993 a meeting of drivers as Union members took place. James Halligan, Henry Nolan and five other drivers were present in addition to Mr Ayton. Following on that meeting Mr Ayton wrote to the Company on the 18th January claiming that his Union had accepted into membership "a large number of your company employees" and seeking a meeting "to set in train the necessary steps to establish what we hope will be a good working relationship".That letter was addressed to Mr John Nolan.

7 On the 19th January 1993 Messrs Halligan, Nolan and a third driver, Paddy O'Leary, in the course of their duties met the Father in the Company's yard. On the following day, the 20th January 1993, all three drivers attended at the Company's premises where they had occasion to meet Mr Seamus Nolan. Also on the 20th January telephone conversations took place between Ms Margaret DeCourcey and Ms Patricia Nolan as well as a call between Mr Henry -Nolan and Ms Patricia Nolan. Finally, in relation to the events of that day, Ms Margaret DeCourcey wrote to Mrs Nolan but no reply was received to that letter.

8 The Appellants contended that they were dismissed from their employment with the Company by the Father on the 19th January or alternatively that the conduct of the Father and the other members of the Nolan family on the 19th and 20th of January 1993 led them to believe that they had been so dismissed. The learned trial Judge in his judgment expressly rejected the claim that the Defendants/Drivers had been dismissed by the Father. The learned Judge held that the Father did not have authority to dismiss employees and that the Defendants recognised that this was so.

9 On the 24th January a further meeting of the members of the Union was held in Waterford. Whilst it appears that the relevant Union membership had grown to twenty-three at that stage those present comprised only five members and two Union officials, that is to say, the first three Defendants, three further drivers and Ms DeCourcey. A decision was made to hold a ballot for industrial action. That ballot was held over a number of days at the terminal in Rosslare, the terminal in Pembroke and on a boat plying between those terminals. In all twenty-three members of the Union voted.

10 By a circular letter dated the 25th January 1993 the Company informed its employees that they did not have to be a member of a union to work for the Company and requested each employee to sign and return the letter to the Company if he was satisfied with his conditions of employment. All of the office staff of the Company signed the form and all but four, or perhaps five, of the drivers likewise signed.

11 At the meeting of the Waterford branch of the Union held on the 31st January 1993 seven driver members were present as was Mr Ayton and Ms DeCourcey. The votes were counted and the result which was declared and circulated was that twenty had voted in favour of strike action and three against. A further meeting of the members was called for the 7th of February. On the 2nd of February strike notice was served for the 11th February.

12 Between the 2nd and the 10th February 1993 considerable activity took place. The Union initiated a trenchant campaign in support of the planned industrial action whilst the overwhelming majority of the drivers expressed dissatisfaction with it. A petition disassociating themselves from industrial action and expressly refusing to withdraw their labour on the 11th February 1993 was signed by forty-eight of the Company's drivers.

13 At the meeting of the Trade Union held on the 7th February sixteen drivers were present. There was a considerable controversy as to what took place at the meeting but the stark fact is that eleven of the drivers gave evidence to the effect that they did not understand the result of the ballot because they were aware that they had themselves voted against industrial action. As the evidence of the drivers was accepted by the learned trial Judge it necessarily followed that the result of the ballot which had been declared on the 31st January was dishonest and the inescapable conclusion reached that the ballot had been "rigged". If a twelfth driver had voted against industrial action - and there was evidence that he did - then the vote would have been against industrial action.

14 Following the expiration of the strike notice, a picket was placed on the Company's premises on the 11th February 1993. The picket comprised the first three Defendants together with Billy Clarke and...