Tierney v an Post

JurisdictionIreland
JudgeMr. Justice McCracken
Judgment Date07 July 1998
Neutral Citation[1998] IEHC 219
Docket NumberNO. 247J.R/1996
CourtHigh Court
Date07 July 1998

[1998] IEHC 219

THE HIGH COURT

NO. 247J.R/1996
TIERNEY v. AN POST
JUDICIAL REVIEW

BETWEEN

SEAN TIERNEY
APPLICANT

AND

AN POST
RESPONDENT

Citations:

FLANAGAN V UNIVERSITY COLLEGE DUBLIN 1989 ILRM 469

BELOFF V PRESSDRAM LTD 1973 1 AER 241

SUNDAY TRIBUNE LTD (IN LIQUIDATION), IN RE 1984 IR 505

HENRY DENNY & SONS (IRL) LTD V MIN FOR SOCIAL WELFARE UNREP SUPREME 1.12.1997

GLOVER V BLN LTD 1973 IR 388

AZIZ V MIDLAND HEALTH BOARD 1995 ELR 48

Abstract:

Employment — Judicial review — Contract terminated — Fair procedures — Proportionality in disciplinary measures — Contract for services — Contract of services — Whether applicant entitled to see all evidence to be considered by inquiry — Whether procedures tainted by inquiry undertaking further investigations after oral hearing — Whether tribunal entitled to take into account previous disciplinary problems.

The applicant was undoubtedly employed by the respondent under a contract of service in that he was under its control and direction and performed services for the respondent rather than for himself. The termination of this contract for the disciplinary breaches alleged was out of all proportion to the damage caused to the respondent. The conduct of the appeal hearing in relation to the termination of the applicant's contract breached the principles of natural justice in that the inquiry considered a report which the applicant did not see and after the oral hearing the inquiry conducted further investigations of its own which impinged on its decision. The High Court so held in setting aside the decision to terminate the applicant's contract of employment and prohibiting the respondent from determining its contract with the applicant in respect of the matters complained of in the letter of 15 January 1996.

1

Mr. Justice McCracken delivered the 7th day of July, 1998

2

The Applicant was appointed Postmaster at Termon, Virginia, Co, Cavan on 30th May, 1983 on the retirement of his father, who had served as Postmaster for over forty years at that time. On 15th March, 1996 Respondent notified the Applicant of its decision to terminate its contract with the Applicant. The Applicant appealed this decision, and an oral hearing of the appeal took place on 28th May, 1996. On 10th July, 1996 the Applicant was notified of the Respondent's decision to deny the appeal, and the Applicant' contract was terminated as of 26th July, 1996. In these proceedings the Applicant seeks orders of Certiorari setting aside both the original decision of 15th March, 1996 and the decision in relation to the appeal, an Order of prohibition prohibiting or restraining the Respondent from termination its contract with the Applicant as a result of these matters and Declarations that the Applicant was entitled to a warning prior to the termination of the contract.

THE FACTS
3

I would emphasis that it not the function of the Court in proceedings such as this to determine whether the decision of the Respondent was or was not correct in all the circumstances. It is the Court's function only to consider the method whereby that decision was reached. However in order to understand what occurred between the Applicant and the Respondent, it is necessary to outline the factual position.

4

Termon Post Office is a sub-Post Office in the small village of Termon, near Virginia, Co. Cavan. As I have already said, the Applicant was appointed a Postmaster on 30th May, 1983, and I will consider the terms of that appointment in more detail later on in this Judgment. As commonly occurs in country sub-Post offices, the Applicant also ran a grocers shop in the same premises, and in conjunction with the sub-Post Office. Both the sub-Post Office and the grocery shop undoubtedly provided a very important service to the local community. In latter years, in common with all Post Offices, the sub-Post Office provided a number of services which are not strictly related to the postal service, and in particular provided a means for customers to discharge their telephone accounts. Customers would frequently use one of the Respondent's services and at the same time make purchases from the shop, and would pay for both by way of a single cheque. Indeed, the Applicant would also facilitate customers by allowing them to write a cheque for a larger amount, and paying them the difference in cash.

5

The head Post office for the area was situate at Kells in County Meath and all monies received by the Applicant had to be sent to that Post Office. The procedure in relation to monies received for payment of telephone bills was that the money was that the money was sent by registered Post to Kells Post Office, which in turn forwarded it to Telecom Eireann.

6

In 1990 and 1991 there had been some problems in relation to telephone accounts paid to the Applicant, and the Applicant was instructed to ensure that monies in respect of paid telephone accounts should be remitted to the Kells office on a daily basis. No further complaints appear to have arisen until October 1995, when two customers queried arrears on their telephone accounts which they had paid to the Applicant. On 16th October, 1995 the Head Post Master at Kells wrote to the Applicant seeking explanations on three specific complaints. These briefly were:-

7

(1) The sum of £76.31 was paid by Mr. James Clarke as his telephone account on 25th August, 1995. The payment was not received by Kells until 12th October, 1995 after the subscriber had queried the arrears on the following account.

8

(2) The sum of £66.84 was paid by Mr. Patrick McCabe in late July 1995 and had not yet been received at Kells.

9

(3) The sum of £91.11 had been paid by Mr. Patrick McCabe on 27th September, 1995 and was not forwarded to Kells until 13th October, 1995.

10

On 18th October, 1995 the Applicant replied to these matters. In relation to (1) above he disputed the date of payment and stated the reason for delay was "no photocopier", in relation to (2) above he stated that payment had been forwarded by registered post and in relation to (3) he disputed the date of the alleged payment to him.

11

The Respondents then appointed Mr. Martin Walsh, a senior Investigation officer in the Respondents, to investigate the matter. He interviewed Mr. Clarke and Mr. McCabe, and on 10th November he interviewed the Applicant. The Applicant handed him six documents dealing with these accounts, which were the portion of telephone accounts retained on behalf of the customer. Five of these did not bear any Post Office stamp, and the sixth bore a stamp on which the date was illegible. The Applicant also made a statement to Mr. Walsh at this meeting in which he acknowledged that he omitted to date stamp the documents, but still disputed the dates on which the customers paid their bills. He further stated that he was satisfied that Mr. McCabe's account of £66.84 had been paid by him to Kells Head Office, but he was unable to say on what date he did so. He acknowledged that in the future all accounts would be date stamped clearly and legibly to the best of his ability.

12

On 15th January, 1996 Mr. Pat Rooney of the Respondents wrote to the Applicant in the following terms:-

"Dear Mr. Tierney,

The standard of accounting at Termon Sub-Post Office, for which you bear contractual responsibility, has again become a source of concern to the company.

Contrary to the arrangements agreed with you in relation to earlier irregularities, telephone account payments made by Mr. James Clarke and Mr. Patrick McCabe at you office at various dates up to 10th November, 1995 were not remitted on a daily basis to Kells Head Office.

Contrary to Paragraph 3.25 of the Postmaster's Manual, five of the six accounts concerned were not date stamped and the stamps on the remaining account are illegible as regards date.

Your failures in the above instances have seriously inconvenienced the individual customers concerned and brought the company into disrepute with a major agency customer. Your previously came under notice in relation to similar irregularities in August 1990 and again in November 1990. On 4th September, 1990 you acknowledged a formal warning in the matter from the Head Postmaster, Kells. You were similarly warned by the Head Postmaster in May 1991 in relation to the renewed irregularities in November 1990

The question of recommending termination of your contract is now under consideration. In order to afford you an opportunity of furnishing any explanation or making any representations you may wish to offer, no further action will be taken for a period of fourteen days.

Yours Sincerely."

13

At this point the Applicant consulted the Irish Postmasters Union, of which he was a member, and on 6th February, 1996 they wrote on his behalf to the Respondents. This did not really add anything to the earlier statement made by the Applicant, although it did point out forcefully the good service provided by the Applicant to his customers and the effect which termination of the contract would have, both on the Applicant and his family an on the local community. The letter ended by saying that the Union was available for discussions in relations to the matter. The Respondents never replied to this letter. On 15th March, 1996 the Respondents wrote to the Applicant in the following terms:-

"Dear Mr. Tierney,

Please refer to the letter of 15th January, 1996 in which you were informed that termination of your contract was under consideration for the reasons stated.

Following consideration of your case, I now have to inform you that the company has ceased to have confidence in your ability to manage the office and consequently it has been decided to terminate your contract as Postmaster, Termon with effect from 29th March, 1996. You will be given three months scaled payment in lieu of notice. Should you wish to appeal this decision, you or...

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