Warner v Minister for Industry and Commerce and Hayden

JurisdictionIreland
CourtSupreme Court (Irish Free State)
Judgment Date01 January 1929
Date01 January 1929

Supreme Court.

Warner v. Minister for Industry and Commerce.
In the MATTER of the UNEMPLOYMENT INSURANCE ACT, 1920; CHARLES WARNER
and
THE MINISTER FOR INDUSTRY AND COMMERCE and MICHAEL HAYDEN

Insurance (Unemployment) - Employed persons - Excepted employments -"Employment in agriculture" - Dairy farm - Employee who milked cows and delivered milk - Whether employed in agriculture - Practice - Appeal - "Final order" of High Court - Appeal to Supreme Court - Right of appeal given by the Constitution of the Irish Free State - Unemployment Insurance Act, 1920 (10 & 11 Geo. 5, c. 30), sect. 1;sect. 10, sub-sects. 1, 4, and 5; sect. 47, sub-sect. 2; Sch. I, Part I, Part II (a) - Constitution of the Irish Free State (Saorstát Éireann éireann)Act (No. 1 of 1922), Sch. I, Art. 66.

Appeal from a decision of the Minister for Industry and Commerce, given pursuant to sect. 10, sub-sect. 1, of the Unemployment Insurance Act, 1920.

By sect. 10, sub-sect. 1, of the said Act: "If any question arises—(a) as to whether any employment or any class of employment is or will be such employment as to make the person engaged therein an employed person within the meaning of this Act or whether a person is or was an employed person within the meaning of this Act . . . the question shall be decided by the Minister: Provided that (i) any person aggrieved by the decision of the Minister on any such question may appeal from that decision to the High Court." "The Minister" referred to in this sub-section was the Minister of Labour; now in the Irish Free State, it is the Minister for Industry and Commerce, who has taken his place.

The Minister for Industry and Commerce, acting under the provisions of the said section, decided on the 9th May, 1927, that the employment of one, Michael Hayden, was such as to make him an employed person within the meaning of the Act.

From this decision Charles Warner, the employer of the said Michael Hayden, appealed to the High Court.

Rule 1 of Order XXI of the Rules of the High Court and Supreme Court, 1926, provides that every appeal under proviso (i) of sub-sect. 1 of sect. 10 of the Unemployment Insurance Act, 1920, shall be brought by Summary Summons, and shall be heard by such Judge of the High Court as may be nominated in that behalf by the Chief Justice.

Accordingly, the employer, Charles Warner, issued a Summary Summons endorsed as follows:—

"The applicant, Charles Warner, being aggrieved at the determination of the Minister for Industry and Commerce, made on the 9th day of May, 1927, under the power conferred on him by sect. 10 of the Unemployment Insurance Act, 1920, whereby he determined that the employment of the said Michael Hayden under the applicant was such as to make the said Michael Hayden an employed person within the meaning of the said Act, hereby appeals against the said determination and decision on the ground that the said Michael Hayden was employed by the said Charles Warner in agriculture and not otherwise";and the applicant applied for an order that the said determination and decision of the Minister for Industry and Commerce might be reversed, and for an order declaring that the said Michael Hayden was not an employed person within the meaning of the said Act, but was a workman engaged and employed in an excepted employment within Part II of the First Schedule to the above-mentioned Act.

The appeal came before Johnston J., the Judge of the High Court appointed under Rule 1 of Order XXI of the Rules of the High Court and Supreme Court, 1926, above set out.

A number of other appeals were heard at the same time, and are referred to in the judgment of Johnston J., but this report is limited to the case of Michael Hayden.

The facts have been summarised in the head-note, and are fully stated in the judgment of Johnston J.

From this decision the workman, Michael Hayden, desired to appeal to the Supreme Court, but the Registrar of that Court refused to receive the notice of appeal without a direction from the Court, on the ground that sect. 10, sub-sect. 5, of the Unemployment Insurance Act, 1920, made the judgment of the High Court final. The workman accordingly applied to the Supreme Court on the 7th December, 1927, for a direction to the Registrar to receive the notice of appeal. The notice of appeal had already been served on the other parties (Charles Warner, the employer, and the Minister for Industry and Commerce).

By sect. 1 of the Unemployment Insurance Act, 1920, persons engaged in the "excepted employments" specified in Sch. I, Part II, of the Act, are excepted from the provisions of the Act as to insurance against unemployment. Sch. I, Part II, includes amongst the "excepted employments,""employment in agriculture, including horticulture and forestry."

H. was employed by a dairy farmer, who had a farm of about 200 acres in the County of Dublin, and who tilled about 50 acres and kept 100 cows, and sold the milk in the city and suburbs of Dublin. H. used to come to the farm about 5 o'clock in the morning, milk the cows, get ready a horse and cart, and then go into the city and distribute the milk. On his return he washed the cans, tended his horse, drove in the cows, again milked them, and delivered the milk. When he returned the second time, after tending his horse and cleansing the cans, his duties were ended.

Held by the Supreme Court (FitzGibbon and Murnaghan JJ.; Kennedy C.J. dissenting), affirming Johnston J. that H. was employed in agriculture and excepted from the provisions of the Act.

By sect. 10, sub-sect. 1, of the Act an appeal lies from a decision of the Minister of Labour (now in the Irish Free State, the Minister for Industry and Commerce) to the High Court, and by sub-sect. 5 the decision of the High Court on such appeal "shall be final."

Held by the Supreme Court that notwithstanding this provision, by virtue of Art. 66 of the Constitution of the Irish Free State, in the absence of any law prescribing an exception, an appeal lies from a decision of the High Court to the Supreme Court.

Held also by the Supreme Court that the right given by sect. 10, sub-sect. 4, of the Act to the Minister to appear and be heard on any appeal under that section followed with the extension of the right of appeal effected under Art. 66 of the Constitution, and entitled the Minister to appear and be heard on an appeal from the High Court to the Supreme Court.

Johnston J. :—

I propose to deal first with the cases of Michael Hayden and William Fitzgerald, who are separately represented by counsel, and seek to rely on certain facts that are alleged to be special to their cases.

The question that I have to decide—one of mixed law and fact—is whether the employment of these men is "employment in agriculture" within the meaning of Part II of the First Schedule to the Unemployment Insurance Act, 1920.

Mr. Warner, the appellant, is a large dairy farmer in County Dublin. He tills a considerable portion of his land, and the produce is mainly used in the feeding of his milch cows, of which he keeps a large number. The milk is sold through the medium of milk vans in the neighbouring village of Rathfarnham and in Dublin generally. He employs from thirteen to fifteen hands permanently, and about forty during the harvesting.

Hayden and Fitzgerald were employed in the main, previously to their dismissal in 1925, in the work of milking the cows on their employer's farm, straining the milk, and placing it in the cans for delivery; delivering it every morning and evening to the appellant's customers, cleaning the milk cans when they were brought back to the farm, and taking general charge of the horses and vans which are used for the purpose of delivering the milk, and are kept in the farm premises. There is evidence, which I cannot...

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9 cases
  • People v O'Shea
    • Ireland
    • Supreme Court
    • 1 January 1983
    ...of construction appears to have been adopted by the Supreme Court of Saorstat Eireann in Warner v. Minister for Industry and Commerce 1929 I.R. 582, in considering the effect ofa provision of the Constitution of Saorstat Eireann which was similar to Article 34.4.3 of the Constitution. Arti......
  • State (Browne) v Feran
    • Ireland
    • Supreme Court
    • 24 July 1967
    ...Constitution, by an Act of the Oireachtas; and that there was no relevant restriction. Warner v. Minister for Industry and CommerceIR [1929] I.R. 582 and Attorney-General (Fahy) v. BruenIR [1936] I.R. 750 approved. The State (Burke) v. LennonIR [1940] I.R. 136 not applied. 2. That the appea......
  • A.B. v Minister for Justice
    • Ireland
    • Supreme Court
    • 30 January 2002
    ...147. Sullivan v. RobinsonIR [1954] I.R. 161. Toth v. AustriaHRC (1991) 14 E.H.R.R. 551. Warner v. Minister for Industry and CommerceIR [1929] I.R. 582. Aliens - Judicial review - Procedure - Leave to apply - Time limit - Extension of time limit - Statutory interpretation - Access to courts ......
  • Attorney General v Open Door Counselling Ltd (No. 2)
    • Ireland
    • Supreme Court
    • 1 January 1994
    ...Unborn Children (Ireland) Ltd. v. CooganIRDLRM [1989] I.R. 753; [1990] I.L.R.M. 70. Warner v. The Minister for Industry and CommerceIR [1929] I.R. 582. Practice - Supreme Court - Jurisdiction - Supreme Court having varied order of High Court and granted perpetual injunction restraining defe......
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