Sheehy v Ryan
| Jurisdiction | Ireland |
| Judge | Justice Mella Carroll |
| Judgment Date | 03 February 2004 |
| Neutral Citation | 2004 WJSC-HC 10610 |
| Judgment citation (vLex) | [2004] 2 JIC 0301 |
| Court | High Court |
| Date | 03 February 2004 |
2004 WJSC-HC 10610
THE HIGH COURT
BETWEEN
AND
Citations:
REDUNDANCY PAYMENTS ACT 1967
EEC DIR 77/187
VOCATIONAL EDUCATION ACT 1930 S23
VOCATIONAL EDUCATION ACT 1930 S23(1)
VOCATIONAL EDUCATION ACT 1930 S23(4)
UNFAIR DISMISSALS ACT 1967
WALSH V DUBLIN HEALTH BOARD 1964 98 ILTR 82
DOOLEY V GREAT SOUTHERN HOTEL 2001 ELR 340
GREHAN V NORTH EASTERN HEALTH BOARD 1989 IR 422
MCCLELAND V NI GENERAL HEALTH SERVICES BOARD 1957 1 WLR 594
HICKEY V EASTERN HEALTH BOARD 1991 1 IR 208
EUROPEAN COMMUNITIES (SAFEGUARDING OF EMPLOYEES RIGHTS ON TRANSFER OF UNDERTAKINGS) REGS 1980 SI 306/1980
EUROPEAN COMMUNITIES (SAFEGUARDING OF EMPLOYEES RIGHTS ON TRANSFER OF UNDERTAKINGS) (AMDT) REGS
2000 SI 487/2000
EUROPEAN COMMUNITIES (PROTECTION OF EMPLOYEES ON TRANSFER OF UNDERTAKNG) REGS 2003 SI 131/2003
Employment law - Dismissal - Conditions of employment - Whether plaintiff could be dismissed on getting reasonable notice - Whether purported termination unlawful
The plaintiff claimed that her employment was not lawfully terminated and that she was entitled to remain on in her position as Diocesan Secretary until she attained sixty-five years of age. It was necessary to determine the conditions of employment of the plaintiff, in particular concerning tenure.
Held by Carroll J. in dismissing the plaintiff's action that in the absence of a special condition in the plaintiff's contract of employment entitling her to a job until she was sixty-five, the plaintiff could be dismissed on getting reasonable notice. There was no special condition in this case and no case was made by the plaintiff that the notice given was unreasonable.
Reporter: R.W.
Justice Mella Carroll delivered the 3rd day of February, 2004.
The plaintiff was first employed by Bishop Lennon of the Diocese of Kildare and Leighlin as the Bishop's Secretary on 29 th July, 1974. At the time she was employed by Carlow Vocational Educational Committee as Senior Administrator in the Regional Technical College at the grade of Clerical Officer. She had been there since March, 1971.
There was no written contract of employment.
The Diocesan Secretary at the time was Fr. Waldron. He fell ill and died in 1977. Bishop Lennon then appointed the plaintiff as Diocesan Secretary in his place.
Bishop Lennon retired in December, 1987 and was succeeded by Bishop Ryan the first named defendant. The plaintiff was concerned that there was no written record of the terms of her employment. She asked Bishop Lennon to produce a document setting out the terms. In a written document in his handwriting it is stated as follows (omitting deletions he made).
"In July, 1974,1 engaged Mary C. Sheehy as my Secretary. During the previous month I had preliminary discussions with her and outlined the conditions of employment. At the time she had a permanent post in the Regional College Carlow and I was concerned that she should not be at any loss by accepting my offer."
1. Salary—to be linked with the salary of her existing post in the Regional College and with the annual increment of that post.
2. Pension—provision to he made.
3. Hours: 10 a.m. to 5 p.m.—with a luncheon break 1–2 p.m. from Monday to Friday.
4. Holidays—same as in her Regional College post with the addition of Church Holy days and an extra week at Christmas and Easter.
5. Duties: In answer to her specific question I assured her that her function would be far wider than that of a typist, and that I expected her to grow into the work so that she could, under my directions, take on the full management of the Diocesan office.
Over the years her duties came to include
(a) Diocesan correspondence.
(b) Keeping of records and recovery of information as requested; searching the Diocesan archives (incomplete and scrappy) (as time allows) and trying to put them in order.
(c) Answering enquiries and dealing with requests which did not need consultation.
(d) Arranging appointments with the Bishop for priests and people.
(e) Management of Diocesan finances, bank accounts, investments etc. under my direction.
In 1977 as she was already doing the work, I appointed her as Diocesan Secretary."
As the plaintiff's salary arrangements were not very clear Bishop Ryan increased her salary.
Bishop Ryan sought over the years to agree appropriate pension arrangements with the plaintiff. There was a fund (Fund 49) set up by Bishop Lennon as pension provision for the plaintiff and some others, who had since died, which could have been liable to tax, so pension arrangements were incomplete.
In 1998, Fr. Bill Kemmy was appointed Chancellor and part-time Diocesan Secretary in succession to Fr. Thomas McDonald.
Bishop Ryan had two meetings with the plaintiff on 16 th and 23 rd March, 2001 relating to salary and pension. It was suggested to her that her pension would be set up as a contributory pension to which she would have to contribute but she refused.
Both the plaintiff and Bishop Ryan kept accounts of these meetings. In Bishop's Ryan's accounts he took issue with some of the details in her accounts. The plaintiff in her evidence took issue with some of the details of Bishop Ryan's accounts. The conflict in the evidence is immaterial as the discussions did not deal with her tenure.
Bishop Ryan became ill at the end of March 2001. He handed over negotiations with the plaintiff to Mr. Gerard Dooley in October 2001. The initial brief was to agree employment issues particularly pertaining to salary and pension. The plaintiff was unwilling to meet with Mr. Dooley without a professional advisor whom she said she could not afford to pay. Mr. Dooley on behalf of Bishop Ryan agreed to pay the reasonable expenses of an advisor. The plaintiff appointed Mr. Brian Gallagher, solicitor, as her representative and so informed Mr. Dooley by letter of 26 th November, 2001. No meeting was held.
A severance package was offered to her through Mr. Gallagher by letter of 14 th January 2002. No reply was received. Eventually Mr. Gallagher replied on 28 th April, 2002 to say that the plaintiff was not prepared to accept the severance package and she wanted to keep her job until she was sixty-five.
Bishop Ryan resigned with effect from 4 th June, 2002 and was appointed Apostolic Administrator with all the facilities of the Bishop. His successor Bishop Moriarty was later appointed Bishop with effect from 31 st August, 2002.
A notice, dated 22 nd July, 2002, of termination of her contract of employment on the grounds of redundancy signed by Bishop Ryan was served on the plaintiff on 23 rd July, 2002 with effect from 19 th September, 2002. She refused to accept it. She issued a plenary summons in this matter on 29 th July, 2002 and. sought and obtained an interlocutory injunction on 29 th August, 2002 requiring the Diocese to pay her salary and fund her pension pending the outcome of these proceedings.
Bishop Moriarty was added as a defendant pursuant to an order of the Master made on 20 th February, 2003. Bishop Ryan died before the case came on for hearing.
The first six items of relief sought in the statement of claim relate to the plaintiff's claim that her employment was not lawfully terminated and that she is entitled to remain on in her position as Diocesan Secretary until she attains sixty-five years of age. Items 7, 8 and 9 claim consequential relief of damages.
Set out in detail, they are as follows:
2 "1. A declaration that the purported termination of the plaintiff's tenure by the defendant as Diocesan Secretary to the Diocese of Kildare and Leighlin is invalid and unlawful in that it—
(a) Constitutes an unlawful repudiation of the plaintiff's employment which has not been accepted by the plaintiff.
(b) Is without efficacy in that it has been embarked upon in breach of the tenants (sic) of natural and constitutional justice.
(c) Is predicated on an invalid invocation of the provisions of the Redundancy Payments Act, 1967as amended.
2. An order that the defendant do pay to the plaintiff ail salary as accruing from the month of August, 2002 to the trial of the action or until further order of this Honourable Court.
3. Ah order requiring the defendant to fund and maintain the plaintiff's pension and life assurance benefits by paying all instalments of premium together with such further or other order restraining the defendant his servants and agents from reducing the plaintiff's pension benefits in any mode whatsoever.
4. An injunction restraining the purported termination of the plaintiff's employment and if necessary, an order permitting the performance of her functions and duties by the plaintiff in her said capacity as Diocesan Secretary.
5. An injunction restraining the defendant his servants and agents from appointing any person other than the plaintiff to the plaintiff's said position as Diocesan Secretary and restraining the performance of the plaintiff's functions and duties by any person other than the plaintiff.
6. An order restraining the defendant his servant and agent from publishing or otherwise disseminating the purported dismissal of the plaintiff whether by recourse to press releases, bulletins, announcements, communiqués or otherwise.
7. Damages as against the defendant arising out of his breach of the said Acquired Rights Directive and/or breach of the plaintiff's constitutional right to work.
8. Damages for the reckless infliction of nervous shock and emotional suffering.
9. Damages for misrepresentation, negligence, breach of warranty and negligent mis-statement...
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