Sherriff v McMullen and Others

• Jurisdiction: Ireland
• Judgment Date: 29 November 1952
• Date: 29 November 1952
• Docket Number: (1949. No. 847 P.)
• Court: Supreme Court

Supreme Court.

(1949. No. 847 P.)

Sherriff v. McMullen and Others.

FREDERICK SHERRIFF (trading as Fred. Sherriff & Sons)

Plaintiff

and

WILLIAM McMULLEN, HUGH BOYLE, GERARD CLARKE and THOMAS JOHNSTON

Defendants.

Trade Union - Conspiracy between members - Interference with contractual rights of employer - Scope of protection of Trade Disputes Act, 1906 -Resignation of members from union - Effect of resignation on trade dispute - Effect of rejoining of union by resigned members - Non-revival of spent dispute - Whether trade dispute can exist between employer and trade union when no members of union employed.

Motion for an Interlocutory Injunction.

The action was brought by the plaintiff, Frederick Sherriff (trading as Fred. Sherriff and Sons), against the defendants, William McMullen, Hugh Boyle, Gerard Clarke and Thomas Johnston, claiming damages for conspiracy and an injunction to restrain the defendants from wrongfully conspiring to injure the plaintiff in his trade or business.

The facts have been summarised in the head-note and are fully stated in the Judgment of Kingsmill Moore J., post.

By consent of the parties the hearing of the motion was treated as the trial of the action.

From the above judgment the defendants appealed to the Supreme Court (2).

The plaintiff was the owner of a saw mills at Bailieborough in the County of Cavan, and employed workmen whose numbers varied from time to time. The defendant, McM., was president of the Irish Transport and General Workers Union. The defendant, H. B., was an employee of Irish Shoe Supplies (1946) Ltd., a member of the said Union, and the local secretary of the Union at Belturbet. The defendants, G. C. and T. J., were members of the Union and were both employed by a firm of metal workers at Bailieborough, About January, 1949, a dispute arose between the plaintiff and his employees on the question of wages. At the start of the dispute the plaintiff had 12 employees engaged at his mill. They were members of the Union and the plaintiff was a member of the Employers' Federation, and the interests of the parties to the dispute were placed in the hands of the Union, on the one hand, and the Federation, on the other hand. The matter of wages was eventually referred to the Labour Court and strike action by the employees was deferred, by agreement, pending an investigation of the matter by that Court. The matter was listed to be heard by the Labour Court on the 23rd July, 1949. On the 7th June, 1949, whilst the hearing before the Labour Court was pending, and when the dispute was still in being, all the employees of the plaintiff then employed at the saw mills, save one, signed a joint letter addressed to the Union announcing their resignation from the Union. At that date some workmen who had been employed by the plaintiff at a previous time and who were temporarily unemployed owing to shortage of work did not subscribe to this letter of resignation and remained members of the Union. On the re-employment by the plaintiff of any of these workmen who had not so resigned on 7th June, 1949, such workmen resigned from the Union before being re-employed. From the 7th June, 1949, onwards there was no dispute between the plaintiff and any of his workmen as to wages or otherwise. On the 10th June, 1949, the defendant, McM., wrote to the plaintiff informing him that it was understood that he had persuaded his employees to resign from the Union and warning him that if such was the case the members of the Union throughout the country would refuse to handle his products. On the 13th June, 1949, the said defendant wrote to the defendant, H. B., instructing him that the members of the Union employed in the Belturbet area should refuse to handle goods for, and from, the plaintiff, and the plaintiff's workmen were also informed of this decision. On the same date the plaintiff's workmen who had resigned from the Union wrote to McM. informing him that their resignation from the Union was voluntary and not a result of pressure from or promises made by the plaintiff. The said letter was also signed by the one workman in the plaintiff's employment who had not signed the earlier letter of resignation. On the 23rd June, 1949, one employee who had rejoined the Union on the 21st June, 1949, was re-employed by the plaintiff; on the 6th July, 1949, another employee rejoined the Union. In the month of May, 1949, Irish Shoe Supplies (1946) Ltd. ordered a quantity of timber from the plaintiff, who tried to make delivery on the said Company's instructions on the 20th June, the 14th July, and the 19th July, 1949. On each occasion the Company refused to take delivery of the timber because their workmen refused to handle it. On the 30th June and the 13th July, 1949, workmen of another firm refused to repair machinery belonging to the plaintiff. The plaintiff thereupon instituted proceedings against the defendants claiming damages for conspiracy and an injunction to restrain the defendants from wrongfully conspiring to injure the plaintiff in his trade or business, and it was

Held by Kingsmill Moore J.:—

(1) In the absence of some specific rule of a union, prohibiting members from resigning from the union, members are at liberty to resign therefrom without the consent of the union.

(2) Between the 13th June, 1949, and the 21st June, 1949, there being no member of the Union employed by the plaintiff, no trade dispute existed between the plaintiff and the Union or any members of the Union.

(3) The dispute between the plaintiff and the Union as to the circumstances on which his employees resigned from the Union was not a trade dispute within the meaning of the Trade Disputes Act, 1906.

(4) The actions of the defendants, McM. and H. B., amounted to an actionable conspiracy at common law.

(5) There being no trade dispute in existence between the 13th June, 1949, and the 21st June, 1949, between the plaintiff and the Union the actions of McM. and H. B., in so far as they resulted in a breach of contract of sale of goods by Irish Shoe Supplies (1946) Ltd. on the 20th June, 1949, were not protected by the Trade Disputes Act, 1906.

(6) Even on the assumption that a trade dispute existed on the 13th July and the 19th July, 1949, the acts of McM. and H. B. were not protected by the Trade Disputes Act, 1906, because the contract the breach of which they procured was a contract for the sale and delivery of goods and not a contract of employment.

On an appeal by the Union to the Supreme Court it was

Held by the Supreme Court (Maguire C.J., Gavan Duffy P. and Murnaghan J.):—

(1) A member of a trade union is entitled to resign therefrom and his resignation is effective from the date of the posting of a letter of resignation.

(2) There was no trade dispute in existence, in the case before the Court, on the 20th June, 1949.

(3) The subsequent action of two employees in rejoining the Union did not revive any original trade dispute.

(4) There being no trade dispute in existence at any of the material dates, the acts of the defendants, McM. and H. B., were not protected by the Trade Disputes Act, 1906.

Per Gavan Duffy P. (Murnaghan J. dubitante and not deciding the point):— The conduct of the defendants, McM. and H. B., went beyond a mere inducement of a breach of contract of employment and an interference with the trade or business of some other person, within the meaning of the Trade Disputes Act, 1906, s. 3, and accordingly the said Act afforded no defence to these defendants even assuming that a trade dispute was in existence on the relevant dates.

Per Murnaghan J. (with whom Maguire C.J. agreed):—

A trade dispute may exist between an employer and a trade union although no one of the employer's workmen is a member of the union. The onus of establishing the existence of such dispute is on the person alleging that it exists. Such a dispute had not been established in present case.

Cur. adv. vult.

Kingsmill Moore J. :—

The plaintiff in this suit, Mr. Frederick Sherriff, is the owner of a sawmill and timber business which he carries on with the aid of his son, Frederick Sherriff, junior, at Bailieborough, in the County of Cavan. He is accustomed to buy standing timber, fell it, convert the better parts of it into planks and scantlings, and utilise the large branches and rougher portions for the manufacture of such articles as hayrakes and handles for agricultural implements. The defendants are all members or officials of the Irish Transport and General Workers' Union. Mr. William McMullen is the General President of the Union; Hugh Boyle, an employee of Irish Shoe Supplies (1946) Ltd., is shop steward of that company's factory at Belturbet and secretary to the local branch of the Union; Gerard Clarke is an employee of Messrs. Corrie and Co., Metalworkers at Bailieborough and a shop steward of their works; Thomas Johnston is also an employee of the same company and a member of the Union.

On the 31st July, 1949, the plaintiff issued a plenary summons against the defendants, claiming damages for conspiracy, and an injunction to restrain the defendants from conspiring to injure the plaintiff in his trade or business. The matter now comes before me on a motion for an interlocutory injunction which, by agreement, is to be treated as the trial of the action. The affidavits, again by agreement, have been supplemented by oral evidence. It was expressly admitted by Counsel for the defendants that, as far as the first defendants were concerned, they had agreed and consented to do acts, which would at common law amount to an actionable conspiracy sounding in damages, but it was contended that they were protected from liability by s. 3 of the Trade Disputes Act, 1906, in as much as the acts of which complaint was made were done in contemplation or furtherance of a trade dispute. Counsel for the plaintiff argued first that there was not any trade dispute within the meaning of that term as...