The Gazette 1988

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

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