362 / 370
GAZETTE
OCTOBER 1988
on 10 August 1984. Notice was given in
writing to each employee w i th their employ-
ment terminating on a specific date. Section
4 of the Act provides that every employee
w h o has been in the continuous service of
an employer for a period of 13 weeks or more
is entitled to a m i n i mum period of notice
varying from one to eight weeks according
to the length of service. Accordingly,
employees' notice of termination expired on
different dates. This notice was extended,
in writing, each week up to and including 4
October 1984. There were full consultations
w i th the unions at all times; the unions
accepted such extensions. The Receiver did
not find a buyer and the company closed on
12 October 1984.
Subsequent to dismissal, the employees
maintained that they did not receive the
requisite notice because they considered
that prior to termination they received only
one week's notice of the specific termination
date of employment. The employees referred
their complaint of inadequate notice to the
Employment Appeals Tribunal under the Act.
The Tribunal held, (by majority), that each
employee received only one week's notice
and thus was entitled to compensation for
the balance weeks of their statutory notice
entitlement. The Tribunal's reasoning was
that notice of termination must have a
specific termination date; in this case the
notice given by the Receiver had expired
w h en the employees' employment did not
terminate as originally notified.
This determination was appealed by the
Receiver to the High Court on point of law
under section 11(2) of the Act. The High
Court dismissed the appeal. The Receiver
then appealed to the Supreme Court.
The Receiver maintained that such
extensions were for the benefit of the
company and also to save employment.
The respondents, whilst accepting that
the Receiver acted in good faith, argued that
notice of termination to satisfy the Act must
be specific. They conceded that the first
notice issued on 10 August did comply w i th
the Act. If the Receiver had acted on such
notice he would not have been in breach of
the Act. Further, the Receiver should not be
able to rely on the cumulative periods
created by the extensions of the original
notices, and that he should have served a
fresh full length notice instead of each
extended notice.
H e l d: The Receiver complied w i th the
M i n i mum Notice and Terms of Employment
Act, 1973 as the notices satisfied the
requirements of the Act, and none of the
respondents were entitled to compensation.
The reasoning is as follows:
The Act is silent as to the form of notice
of termination i.e. it does not have to be in
writing. The Act is concerned only w i th the
period referred to in the notice. If the notice
is actually given — whether orally or in
writing, in one document or in a number of
documents — and conveys to the employee
that at the end of the period expressly or
impliedly referred to in the notice or notices,
it is proposed to terminate his or her employ-
ment, the only question normally arising
under the Act would be whether the period
of notice is less than the statutory minimum.
From the time the first notice was given,
the employees knew that they were under
notice and that they were benefitting from
repeated extensions of the period of notice.
There was no degree of uncertainty.
Each employee was advised by skilled and
experienced union officials, and they signed
a form acknowledging that the dismissals
were valid and there was no money due in
lieu of notice.
However, the legal position would be
different if a number of notices were issued
to mislead an employee or to subvert the
proper operation of the Act.
Bolands
Limited
(in receivership)
-v-
Josephine
Ward and Ors. — Supreme
Court
(per McCarthy J., nem. diss.) — 30 October
1987 —
unreported.
Frances Meenan
EMPLOYMENT
Whether power to suspend can be
d e l e g a t ed — Wh e t h er s u s p e n s i on
became invalid because of failure to act
within a reasonable time.
The Plaintiff was a postman. He was initially
employed by the Department of Posts and
Telegraphs. Under the terms of the Postal
and Telecommunications Act, 1983, he
transferred into the employment of An Post.
Section 4 5 of the Act guaranteed that his
conditions of service w i th An Post would be
no less beneficial than those he had enjoyed
prior to the transfer. Under his previous
conditions of service, he was liable to
suspension by a Suspending Officer in
circumstances specified in S.13 of the Civil
Service Regulation Act, 1956. In January
1984, the Chief Executive of An Post
p u r p o r t ed to give similar p o w e rs of
suspension
TO
holders of certain designated
offices. One of the principal matters argued
by the Plaintiff was that this delegation of
the power of suspension was
ultra vires.
On 9 May 1984 the Plaintiff was sus-
pended w i t h o ut pay for alleged disTionesty.
A n investigation into the allegation was
commenced. The Plaintiff's solicitor de-
manded his reinstatement on the basis that
the suspension was
ultra vires.
A High Court
action challenging the suspension on this
and other grounds was commenced.
Soon afterwards, A n Post's solicitor in-
dicated that the disciplinary proceedings
would not be taken pending the outcome of
criminal proceedings against the Plaintiff. In
November 1985, the Plaintiff was tried on
indictment and was acquitted on all counts.
An Post continued to refuse to reinstate the
Plaintiff, however, and this refusal was
supported by the Supreme Court (Henchy J.
w i th Hederman J. concurring) w h i ch con-
sidered that:
" T h e disposition of the charges against
the Plaintiff by findings of not guilty did
not preempt or otherwise trench on the
due exercise by A n Post of its statutory
right to suspend or dismiss in respect of
the same conduct w h en treated as
breaches of discipline."
An Post decided not to proceed w i th the
prospective dismissal of the Plaintiff until his
High Court proceedings were concluded. In
July 1986 the High Court denied the Plaintiff
the reliefs he sought and dismissed his claim.
He appealed to the Supreme Court on three
main grounds:
(1) That the suspension was void
ah initio
because there was no jurisdiction vested
in either the Board or the Chief Executive
of an Post to delegate the power of sus-
pension.
The Supreme Court dismissed this ground
of appeal on the basis that the transfer
effected by the 1983 Act subject to the
same conditions of employment as pre-
viously applied carried w i th it by necessary
implication the then existing rights of
suspension,
mutatis
mutandis.
(2) The second main ground of appeal was
that the suspension was void
ah initio
because the Plaintiff was not informed
adequately of the reasons for his sus-
pension.
On this point, the Supreme Court accepted
that the Plaintiff was entitled to an adequate
statement of the reasons for suspension but
it pojnted out that the High Court had found
as a fact that the Plaintiff had been made
aware of w hy he was being suspended. The
Supreme Court could not disturb that finding
of fact.
(3) The third main ground of appeal was that
the suspension was invalid because A n
Post failed to act within a reasonable time
on foot of it.
The Supreme Court accepted that " t h e
fundamental requirements of justice meant
that the uncertainty and the hardship of
suspension w i t h o ut pay be brought to a
conclusion one way or the other as soon as
was reasonably practicable."
In assessing w h en it was "reasonably
practicable" to do so, the Court considered
that the claims of both parties had to be
assessed. The complicated series of the
legal proceedings wh i ch surrounded the
suspension made the question of whether
A n Post should have proceeded w i th the
internal inquiry a difficult one. The Court
noted that if the internal inquiry had gone
ahead and led to the conclusion that the
Plaintiff should be dismissed, the exercise
of that power would have been impractical
given the High Court proceedings. Further-
more, the Court took the view that to hold
the inquiry would have been undesirable as
the issues wh i ch would have necessarily
arisen could not have been segregated from
the issues raised in the High Co u rt
proceedings. Thus, the Supreme Court con-
c l u d ed by a m a j o r i ty ( M c C a r t hy J.
dissenting) that it was reasonable and proper
to postpone the inquiry.
The appeal was dismissed.
Stephen Flynn -v- An Post — Supreme
Court
(Henchy J.) — 3 April 1987 —
unreported.
Declan Madden
EMPLOYMENT
Emp l o yme nt Equality Act 1977 —
d i s c r i m i n a t i on
— Wh e t h er
t he
imposition of an age limit was indirectly
discriminatory against married women
— Nature and processing of appeals.
The Plaintiff worked for the Sligo County
Council as a Clerical Officer for 12 years up
to December 1967 w h en she was married.
Under the then existing regulations, she had
to resign on marriage. In 1980, the North
Western Health Board advertised a vacancy
for a Grade IV clerical position w h i ch
provided
inter alia
that candidates " m u st not
be more than 27 years of age on 1 July,
1 9 8 0 ". The Plaintiff's application for the
position was refused on the grounds that
she was more than 27 years of age on the
relevant date. She contended that the age
ii