The Gazette 1980

247 / 270

GAZETTE JULY-AUGUST 1980
RECENT IRISH CASES
Summaries of judgments prepared by
Eric Brunker, Franklin J. O'Sullivan,
Michael Staines, S W. Riordan, and
edited by Michael V. O'Mahony.
CONTRACT OF EMPLOYMENT
The Basis of computation of
remuneration of Health Board
Officers is that which the Board
determines in accordance with the
directions of the Minister: — In
making such computation the
inclusion of allowances over and
above basic salary is discretionary —
Section 14 of the Health Act 1970.
The Plaintiffs were senior executive
officers in the Eastern Health Board.
Prior to his promotion to this
position, the first Plaintiff was
employed as a section officer with the
Board and on 21 September 1971 he
was assigned to Organization &
Method (O & M) duties and he
became entitled to an O & M
allowance; on 3 March 1972, less
than 12 months after the
commencement of O & M allowance,
he was appointed a senior executive
officer in a permanent capacity.
Likewise, prior to his promotion to
this position, the second Plaintiff had
been assigned to O & M duties on 15
July 1971, but he was appointed in a
permanent capacity as a senior
executive officer also on 3 March
1972.
The appointment of the Plaintiffs
was made by the Chief Executive
Officer of the Board under the
provisions of Section 14 of the
Health Act 1970. The relevant sub-
sections of Section 14 are as follows :-
"(1) In addition to the Chief
Executive Officer, there shall be
appointed to a Health Board such
and so many other officers and
such and so many servants as the
Board from time to time
determines in accordance with the
directions of the Minister (for
Health and Social Welfare).
(2) an officer or servant of a
Health Board appointed under this
Section shall hold office or
employment on such terms and
conditions and shall perform such
duties as the Chief Executive
Officer from time to time
determines.
(3) There shall be paid by a health
Board to an officer or servant
appointed under this Section such
remuneration and allowance as the
Chief Executive Officer from time
to time determines.
(4) (a) In making an appointment
of an officer or servant the Chief
Executive Officer shall act in
accordance with the directions of
the Minister but no such direction
shall be in conflict with Section
15.
(b) In making a determination
under sub-section (3) or (4) the
Chief Executive Officer shall act in
accordance with the directions of
the Minister and shall have regard
to any arrangements in operation
for conciliation and arbitration for
persons affected by the
determination".
In a Circular (Number 10/71) dated
29 March 1971, the Minister gave
general directions in relation to the
appointment and conditions of
service of officers and servants of
Health Boards. Paragraph 14 of this
Circular dealt with "Starting Pay on
Promotion" with (inter alia) the
following provisions:-
(i) "where the same salary scale
applies to the officer's existing
office and the office to which he
has been newly appointed he shall
remain on the same point of the
scale and may retain his existing
incremental date" . . .
(iv) "subject to sub-paragraph (1)
above the minimum of the new
salary scale is less than existing
pay the officer may enter the new
scale at the point nearest but not
below existing pay plus one
increment".
On 3 March 1972 the Chief
Executive Officer, in determining the
remuneration payable to the
Plaintiffs, took into account the O &
M allowance which each had
received and decided that their cases
fell within the ambit of Paragraph 14
(4) (above). However, on 5 April
1972, the personnel department of
the Board wrote to the Secretary of
the Department of Health referring to
a number of appointments and
'seeking approval for the decision in
relation to the remuneration payable
to the Plaintiffs. Following
correspondence between the Board
and the Department of Health, the
Department wrote to the Board on
18 August 1972 stating that neither
of the Plaintiffs should be allowed to
reckon the O & M allowance paid for
the purpose of determining his entry
point to the senior executive officer's
scale. A request to have the ruling
reversed was refused and by letter
dated 12 September 1972 the Board
was informed of the Minister's
confirmation of the previous decision.
The Chief Executive Officer, acting
on the directions given to him in the
Department's letters, reduced the
Plaintiffs' remuneration by
calculating it in accordance with
another sub-paragraph of Paragraph
14 of the Department's Circular.
The Plaintiffs sought a declaration
that the Department was wrong in its
view that the O & M allowance
should not be taken into account in
ascertaining the Plaintiffs'
remuneration at the time of their
promotion.
Held (per Costello J.):
(1) that the Plaintiffs rights, and, in
particular, the right to remuneration,
were governed by statute, and they
were only entitled under Section
14(4) of the Health Act 1970 to such
remuneration and allowance as the
Chief Executive Officer from time to
time making his
determination the Chief Executive
Officer must act in accordance with
the directions of the Minister. The
Minister was acting "intra vires"
when he made the direction of 18
August 1972 and the Chief Executive
Officer was bound, as a matter of
law, to comply with it whatever
nomenclature applied to the office the
Plaintiffs then held;
(2) that the Plaintiffs were legally
entitled to the remuneration they
actually received from the date of
appointment on 3 March 1972 to 18
August 1972 and no claim for
overpayment legally arose. The
practice that had grown in the
interpretation of the Minister's
direction, where an officer of a
Health Board had been in receipt of
an allowance for a year or more, that
such an allowance was to be included
in calculating the "existing pay", was
not binding where such an officer had
received such allowance for a period
less than a year, as was the case here.
Colm Murphy and Brendan Garvey
and The Eastern Health Board and
The Minister for Health and Social
Welfare - High Court (per Costello
J.) - 22 June 1979 - Unreported.