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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Carr v. Minister for Education [1999] IEHC 250 (25th August, 1999) URL: http://www.bailii.org/ie/cases/IEHC/1999/250.html Cite as: [1999] IEHC 250 |
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1. This
matter comes before the Court pursuant to Order of the 30 April 1998 whereby
the Applicant was given leave to seek Judicial Review by way of Certiorari
quashing the decision of the Respondents made on or about the 27 November 1997
suspending payment of the salary of the Applicant.
Secondly
she was given liberty to seek a declaration that the decision of the
Respondents was ultra vires and void.
Thirdly
she was given leave to seek an Order directing the Respondents to pay her
arrears of salary since the 1 December 1997 until further order.
Finally
she was given liberty to seek damages for breach of contract and procurement of
breach of contract.
The
facts which form the background to this case have already been considered and
found in proceedings between the Parties heard by the High Court in 1987 and by
the Supreme Court on appeal in 1991 (Record No 3650P/1982). These facts may be
summarised as follows:
On
the 20 December 1971 the Applicant ("Miss Carr") was appointed Principal to St
Anne's Post Primary School by the Limerick Vocational Education Committee. In
Spring of 1976 certain decisions were made by the Limerick Vocational Education
Committee (the VEC) regarding the reorganisation of the schools under their
control. A decision was made to close St Annes Post Primary School. By letter
of the 21 June 1976 Miss Carr was informed that she had been suspended from
office pursuant to Section 7 of the Vocational Education (Amendment) Act 1944
while the Minister for Education conducted an enquiry into allegations of
insubordination by her. It was almost four years before the decision of the
Minister based on the enquiry was announced. However in September of 1976 the
Minister agreed to remove Miss Carr's suspension pending the outcome of the
enquiry. On the 25 July 1980 Miss Carr was informed that the Minister had
decided that the suspension should be terminated. In the meantime St Annes
School had been closed.
Miss
Carr was requested to resume duty and to report to the School of Commerce,
Musgrave Street on the 1 September 1980 and a pay order for arrears of salary
was sent to her. Miss Carr replied to that letter returning the pay order and
indicating that she would not settle with the VEC. It appears that the reason
for this attitude was that she felt that the Minister should himself
communicate with her and this was done on the 14 August 1980. However this did
not satisfy Miss Carr. She felt that the Minister was under an obligation to
produce a report of the public enquiry and she instituted proceedings seeking
that relief. These proceedings were discontinued in 1981. Since that time Miss
Carr has not resumed employment. In fact the number of schools under the
jurisdiction of the Limerick VEC has reduced down to three and will be further
reduced in the near future.
In
his Judgment of the 31 July 1987 Murphy J found that the Plaintiff was entitled
to damages which he measured in the sum of £2,817. From this amount Miss
Carr appealed.
In
the course of his Judgment Finlay CJ in the Supreme Court found that Miss Carr
had suffered a massive injustice. He found that Miss Carr was entitled to be
offered a post as a Principal teacher in another school under the jurisdiction
of the Committee with the appropriate allowances applicable to the school and
he found that she was still an officer of the Vocational Education Committee in
the position of a principal teacher of a school which was within the Limerick
VEC's jurisdiction. He found that she was entitled to be paid all her salary
from the date of her original suspension up to the present time (giving credit
for any payments made) and the matter was remitted back to the High Court for
assessment of the amount.
Miss
Carr has not worked since but has been paid all the salary to which she is
entitled.
Not
unnaturally the VEC and the Minister for Education ("The Minister") are
dissatisfied that a principal teacher should enjoy her salary without being
required to work and on the 24 July 1995 the VEC wrote to Miss Carr indicating
that "the Committee have decided to consider removing you from office under
Section 23(4) of the Vocational Education Act 1930."
Subsection
4 of that Section provides that the Vocational Education Committee may dismiss
a servant of such Committee and, with the approval of the Minister, remove any
officer of such Committee. This letter was not accepted by Miss Carr and she
declined to authorise her solicitors to accept it on her behalf.
The
Minister attempted to communicate with Miss Carr or her solicitors but again
Miss Carr declined to accept the Minister's correspondence and expressly
instructed her solicitors not to accept correspondence on her behalf.
In
these circumstances and in an effort to break the logjam which had occurred,
the Minister engaged the services of a mediator who called on Miss Carr and
made comprehensive efforts to meet her to negotiate. Miss Carr declined to meet
the mediator.
The
matter therefore came to a head on the 30 July 1997 when the Minister wrote to
Miss Carr. In that letter the following paragraph appears:
"In
the continuing absence of any response from you to any of our letters or other
efforts to make contact with you it is the opinion of the Minister for
Education that by making yourself unavailable for discussion on your return to
active employment, you have misconducted yourself in relation to your office
and you have failed to perform satisfactorily the duties of your office.
In
accordance with Section 7 of the Vocational Education (Amendment) Act of 1944
the Minister must now consider what disciplinary action to take against you. In
these circumstances and if the Minister must take disciplinary action, it is
likely to take the form of suspension of your salary until such time as you
enter into constructive discussions about your return to active employment with
the Committee. You can be assured that normal determination has been made by
the Minister. Before reaching any final conclusion, either on the fact of your
misconduct or failure or on the disciplinary action to be taken, the Minister
wishes to give you a further opportunity to respond to our request for
discussions on your return to work. Alternatively you may wish to make
representations on why the Minister should not conclude that you have
misbehaved yourself or having failed to perform your duties and on why
disciplinary action should not be initiated."
On
the 3 November 1997 the Minister wrote to Miss Carr. The letter contains the
following paragraph:
Further
to this Department's letters of the 30 July and the 28 August 1997 and in the
absence of any reply from you, the Minister has now decided to take
disciplinary action against you by suspending payment of your salary until such
time as you are prepared to enter into meaningful discussions with the
Committee and the Department on your return to work in an appropriate position."
On
the 27 February 1997 the VEC wrote to Miss Carr a letter which contains the
following paragraph:
"In
accordance with the Minister's instructions the Committee is suspending your
salary from November 1997 until further notice. I sincerely hope that this is a
temporary measure, and that it will now be possible for you to enter into
meaningful discussions both with the VEC and the Department in relation to your
return to active service for the Committee."
On
these facts the following issues arise for the determination of the Court:-
1.
Given the findings of the High Court and the Supreme Court has the Minister
established that in all the circumstances of the case he is entitled to suspend
payment of Miss Carr's salary?
2.
Since Judicial Review is a discretionary remedy has the Applicant by her
conduct disentitled herself to the relief she now seeks?
1.
In my view it is clear that the only circumstance in which the payment of
remuneration to the holder of an Office may be suspended is in circumstances in
which Section 7 of the Vocational Education (Amendment) Act 1944 arises. This
is the Section which empowers the Minister where he has reason to believe that
the holder of the Office has failed to satisfactorily perform his or her duties
or has misconducted himself to suspend the holder from the performance of these
duties pending an enquiry and subsection 5 provides that where the holder of
the Office is suspended under this Section he is not to be paid any
remuneration. The critical aspect of the Section is that the withholding of
remuneration only arises in circumstances where the Committee or the Minister
has reason to believe that the Office Holder has failed to perform
satisfactorily his duties or has misconducted himself or is otherwise unfit to
hold such office. In those circumstances the Committee or the Minister as the
case may be may suspend the holder from the performance of the duties pending
an enquiry. Then and only then does the Section go on to provide that the
remuneration is not to be paid. There is, in my view, no question of
"suspending" payment of the remuneration nor is it in accordance with the
Section to withhold payment in circumstances in which no enquiry is being held.
In
paragraph 4 of the Minister's statement of opposition it is submitted that the
suspension of the Applicant's salary was lawful as the Applicant had been
informed by letter of the 3 November 1997 that the first named Respondent had
decided to take disciplinary action against her until such time as she was
prepared to enter into discussions with the Respondent concerning her work.
There is in my view a clear distinction between the procedures envisaged by
Section 7 and the procedure to which reference was made in paragraph 4 of the
Statement of Opposition.
In
my view Section 7 of the 1944 Act provides no basis for the suspension of
payment of salary in the circumstances of this case.
Insofar
as the VEC is concerned the able submissions of counsel had been directed
towards the rights which he alleges the VEC have to terminate Miss Carr's
office and the obligations that she has towards the VEC. In my view
irrespective of the validity of these submissions there is no right vested in
the VEC or the Minister in the circumstances of this case to suspend payment of
her salary.
2.
It has been submitted by Counsel for the Minister that the action of Miss Carr
in refusing to enter into negotiation and mediation procedures has been so
grossly unreasonable that the Court should decline to grant her the relief
which she now seeks. He submits that it is for that reason the payment of
salary has been suspended and this will be resumed when Miss Carr agreed to
negotiate.
This
Submission is based upon the well known passage contained in the Judgment of
O'Higgins CJ in the State (Abenglen Properties Limited) v Corporation of Dublin
1984 IR 381 in which he says that "The Court retains a discretion to refuse his
application if his conduct has been such as to disentitle him to the relief"
This passage is of course referred to in the Judgment of Mr Justice Blaney in
Aherne v Minister for Industry and Commerce (No 2) [1991] IR 462.
Mrs
Reilly SC on behalf of the Minister submits that the conduct of Miss Carr in
this case has been grossly unreasonable in declining to respond to the
Minister's efforts to bring about a compromise of this case. It has been
submitted that nothing in the case would justify Miss Carr's refusal to at
least meet with the Minister's mediator to hear the proposals which the
Minister had for the solution to the problem.
I
have the greatest possible sympathy for the Minister in this case. I believe
that his (or her) approach throughout the case has been eminently reasonable
but it is important not to confuse this with the alleged unreasonable conduct
of Miss Carr.
In
my view there is a clear distinction between expecting one Party to enter into
and embark upon negotiations for the settlement of a dispute in circumstances
in which one Party makes a claim based upon an alleged right which, while
claimed, has as yet to be established and circumstances in which one of the
Parties is in possession of contractual and statutory rights which have been
found to exist by the Supreme Court. The difference in my view is this. In the
first instance a negotiating party in order to be reasonable must be expected
to yield to reasonable demands in exchange for reasonable offers. In the latter
the Party possessed of statutory rights is entitled to stand on those statutory
rights.
An
example to which reference may be made is a tenant who holds a protected
tenancy. The Landlord may well have genuine and bona fide reason for requiring
possession of that premises and indeed may be prepared to offer the tenant
generous terms. However, the tenant in my view cannot be found to be
unreasonable if he declines to negotiate and stands upon his statutory rights
even if by so doing he acts to his detriment.
In
the present case the only offer which the Minister could make would be one
which would require Miss Carr to forfeit the statutory rights which she holds
ie to give up her position as a Principal of a Post Primary School and take up
some other position all be it with enhanced increments. It may be to Miss
Carr's detriment to hold out for what she is entitled to rather than accept
some attractive offer but in my view it cannot be said that she is unreasonable
in doing so.
Accordingly
in my view Miss Carr's conduct in refusing to negotiate is not such as would
disentitle her to the relief sought and I am of the view that she is entitled
to an Order in the terms of paragraph (d)(1), (2), (3), (4), (5) and (6).
With
regard to Miss Carr's claim for damages I am of the view that the payment of
her arrears of salary will compensate her in full for any loss that she has
sustained and I do not consider that it is an appropriate case for damages over
and above that figure.