Tierney v an Post

• Jurisdiction: Ireland
• Judge: Keane, J.
• Judgment Date: 06 October 1999
• Neutral Citation: [1999] IESC 66
• Court: Supreme Court
• Docket Number: 268/98,[S.C. No. 268 of 1998]
• Date: 06 October 1999

TIERNEY v. AN POST

BETWEEN

SEAN TIERNEY

Applicant

AND

AN POST

Respondent

[1999] IESC 66

Hamilton, C,J.

Keane, J.

Lynch, J.

268/98

THE SUPREME COURT

Synopsis

- [2000] 1 IR 536 - [2000] 2 ILRM 214

The Court was satisfied that the contract in question was a contract for services rather than a contract of services, as found by the High Court, particularly having regard to the fact that the applicant provided the premises for the business and could increase his profit by exerting greater effort. However, once a disciplinary process was provided for, which included an oral hearing, the applicant was entitled to fair procedures which were not observed. The Supreme Court so held in dismissing the appeal.

Citations:

HENRY DENNY & SONS (IRL) LTD V MIN FOR SOCIAL WELFARE 1998 1 IR 34

HITCHCOCK V POST OFFICE 1980 ICR 100

GLOVER V BLN LTD 1973 IR 388

HAUGHEY, IN RE 1971 IR 217

MESKELL V CIE 1973 IR 121

MOONEY V AN POST 1998 4 IR 288

1 6th day of October, 1999 by Keane, J. [NEM DISS]

2 The facts in this case, in so far as they are not in dispute, are as follows. The applicant was appointed postmaster in Termon, virginia, County Cavan on the 30th May, 1983. He succeeded his father, who had served as postmaster for over 40 years at that time. Like many other rural post offices, the one at Termon is a sub-post office which was run by the applicant in conjunction with a grocer's shop in the same premises. In addition to the normal postal services being provided it was also possible for customers of Telecom Eireann to pay their telephone bills at the post office and it was the responsibility of the applicant to transmit the monies paid in respect of those bills to the head post office for the area in Kells for transmission to Telecom Eireann. As a result of what was alleged by the respondent to be unjustified delay by the applicant in transmitting some of these monies to Kells, the respondent terminated its contract with the applicant on the 15th March 1996. In accordance with the procedure provided for in the contract, the applicant appealed form that decision and on the 10th of July 1996 he was notified by the respondent that his appeal had been rejected and the contract was then terminated as of the 26th July 1996.

3 On the 25th July 1996, the High Court gave leave to the applicant to apply by way of judicial review for inter alia an order of certiorari in respect of the respondent's decisions of the 15th March 1996 and the 10th July 1996 and an order of prohibition or an injunction prohibiting or restraining the respondent from terminating its contract with the applicant. Leave having been given by the High Court to seek such relief and a statement of opposition having been filed on behalf of the respondent, a notice of motion seeking the relief in question came on for hearing before the late shanley J.

4 The first ground relied on in the statement of opposition was that the proceedings arose out of an alleged breach of a contract between the applicant and the respondent and, accordingly, were not properly brought by way of judicial review. We were informed that, having heard submissions on this matter, Shanley J rejected this ground of opposition but that, at the time of his death, no order to that effect had been passed or perfected. In the result, his ruling was not the subject of any appeal to this court and I would expressly reserve for another occasion the issue as to whether proceedings of this nature are maintainable by way of judicial review.

5 The motion seeking the relief in question then came on for hearing before McCracken J and in a reserved judgment delivered on the 7th July 1998, he found in favour of the applicant and granted the orders of certiorari and prohibition sought on his behalf. From that decision, the respondent new appeals to this court.

6 Before turning to the legal issues which were debated in the High Court and again in this court, I should refer to some other aspects of the fact which were also not in dispute. On the 3rd September 1990, following what was said by the respondent to be the applicant's delay in remitting paid telephone accounts to Kells and his failure to date stamp telephone accounts, a formal warning notice was sent by the respondent to the applicant. On the 14th November 1990, the head postmaster in Kells again wrote to the applicant drawing his attention to the fact that three accounts which were transmitted on the 2nd or 3rd November 1990 had in fact been paid between three and four weeks previously by the customers concerned. It was said in that letter that the date had been omitted from the date stamp in each case and it was suggested that this might have been deliberately done to avoid having to send the accounts in each day.

7 There were no further complaints concerning the applicant until October 1995 when two customers raised queries as to telephone accounts which they had paid to the applicant. On the 16th October 1995, the head postmaster at Kells wrote to the applicant seeking explanations in respect of three specific complaints. In one case, it was said that a sum of £76.31 had been paid on the 25th August 1995 but not transmitted to Kells until 12th October following a query by the customer. In a second, it was said that a sum of £66.84 paid in late July 1995 had not yet been received at Kells. In a third case, a sum of £91.11 was said to have been paid on the 27th September 1995 and was not forwarded to Kells until the 13th October 1995. On 18th October 1995 the applicant wrote in reply disputing the date of the payments in the first and third cases and, in the case of the second complaint, stating that he had forwarded the payment by registered post.

8 The respondent appointed Mr. Martin walsh, a senior investigating officer, to investigate the matter. He interviewed the two customers concerned and the applicant and was given six documents dealing with the accounts by the applicant. Five of them did not bear any post office stamp and the sixth bore a stamp on which the date was illegible. The applicant admitted to Mr. Walsh that he had omitted to date stamp the documents but disputed the dates on which the customers were said to have aid their bills. He also claimed that the sum of £66.84 had been paid by him to Kells. He agreed that in future all accounts would be date stamped clearly and legibly to the best of his ability.

9 On the 15th January 1996, Mr. pat Rooney of the respondent's head office wrote to the applicant stating that the manner in which the applicant had dealt with these accounts had seriously inconvenienced the subscribers concerned and had brought the company into dispute with one of their major customers. He said that the question of terminating the applicant's contract was now under consideration but that, in order to afford him an opportunity of furnishing any explanation or making any representations, no further action would be taken for a period of fourteen days. This letter was replied to on the applicant's behalf by the Irish Postmasters' Union: that letter vigorously rejected what was seen as a suggestion by the respondent that the applicant had been behaving improperly with regard to the monies in question. It was pointed out on his behalf that he had transmitted thousands of such accounts to the office at Kells over the years by registered post and that, for what was described as very meagre remuneration, he had been providing an excellent service to the local community. It would appear that the respondent did not reply to this letter.

10 On 15th March, 1996, Mr. Rooney wrote to the applicant as follows:-

"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 3 months scale payment in lieu of notice. Should you wish to appeal this decision, you or your representative should do so within seven days."

"I am sorry that your contract with the Company has had to end in this way."

11 On the 21st March 1996, the applicant notified the respondent that he wished to appeal from the decision to terminate his contract and requested an oral hearing of the appeal. This was held on the 28th May 1996 before Mr. Michael O'Connell, the manager of customer services for the respondent. The applicant was accompanied by a Ms. McMahon, who in addition to being a friend of the applicant was also a solicitor, but did not attend the meeting in that capacity. The findings by the learned High Court judge as to what transpired at that meeting and subsequently to it, which were not challenged on behalf of the respondent, are of importance and should be set out:-

"Towards the end of the hearing, Mr. O'Connell asked if they considered they had had sufficient time and a fair hearing, and asked if there was anything else wished to raise. Ms. McMahon then asked whether the appeal was being decided on the two items of complaint from Mr. Clarke and Mr.McCabe, or whether there were any other items being considered and Mr. O'Connell replied that there were a number of other items, namely, delays in sending accounts to the Head Office, failure to date stamp accounts and illegible date stamping. Ms. McMahon's evidence is that she pressed him as to what these items were and he said that he would have to look at his file. Mr. O'Connell did not recollect this taking place, although he does say that he had the full file in front of him, but he had not in fact read all the material in it. I was generally very impressed with Ms. McMahon's evidence, and I think it probable that Mr. O'Connell did make some reference to consulting his file."

"After the meeting concluded Mr. O'Connell undertook further enquires on issues on which...