Beruflich Dokumente
Kultur Dokumente
1 I.R.
Sean Tierney
, Applicant v.
An Post
, Respondent
[S.C. No. 268 of 1998]
Supreme Court
6th October 1999
Labour law - Employment - Whether contract of service or contract for
services - Termination of contract - Constitutional and natural justice Whether termination proportionate response to misconduct - Conduct of
disciplinary hearing - Whether fair procedures followed - Conduct of
decision-maker after hearing.
The applicant was appointed postmaster of a sub-post office. The contract consisted of a
document called "Appointment of Postmaster",wherein the applicant agreed to be bound
by the rules in the postmaster's manual. Therein it was agreed, inter alia, that the
position did not entitle the applicant to medical attendance, sick pay or annual leave;
that the premises were to be kept to a certain standard and to provide certain facilities
for the public to use at the sub-post office. The applicant's pay was determined in
accordance with this document and while the respondent contributed to the applicant's
P.R.S.I., P.A.Y.E. was not deducted. The postmaster was stated to be under the control
of the regional manager of the respondent, and the permission of the Head Postmaster
was required before an assistant could be hired. The manual also dealt with the
disciplinary procedures, including those for dismissal.
In 1990 and 1991, some problems arose over the paying by the applicant of
customers' telephone accounts, which was one of the services provided by the sub-post
office. No further complaints were made until 1995, when two customers queried their
accounts. An investigator was appointed by the respondent to inquire into the matter.
The respondent wrote to the applicant stating that the standard of accounting at the
applicant's sub-post office was a source of concern. The letter stated that the termination
of the applicant's contract with the respondent was under consideration.
Following representations by the applicant, the respondent wrote again stating that
his contract as postmaster would be terminated, with payin lieu of notice. The applicant
appealed this decision and a hearing was held. After the meeting, the decision-maker
undertook further inquiries on certain issues, as a result of which he had doubts as to the
applicant's credibility. The appeal was turned down. The applicant was not furnished
with the full evidence against him, which was fully available to the decision-maker.
The High Court (McCracken J.) held the applicant to be an employee of the
respondent and granted an order of certiorari to quash the decision to terminate the
contract and an order of prohibition preventing the respondent from terminating the
contract. The respondent appealed to the Supreme Court.
Held by the Supreme Court (Hamilton C.J., Keane and Lynch JJ.), in dismissing
the appeal, 1, that the contract was not of service but was a contract for services.
Although the degree of control exercised by the respondent over the applicant was
always a factor to be considered, it was not the only factor to be taken into account.
Henry Denny & Sons (Ireland) Ltd. v. Minister for Social Welfare [1998] 1 I.R.
34 followed. Hitchcock v. Post Office [1980] I.C.R. 100 considered.
[2000]
1 I.R.
Tierney v. An Post
Tierney v. An Post
Hamilton C.J.
6th October, 1
Tierney v. An Post
Keane J.
The motion seeking the relief in question then came on for hearing before
McCracken J. and in a reserved judgment delivered on the 7th July, 1998, he
found in favour of the applicant and granted the orders of certiorari and
prohibition sought on his behalf. From that decision, the respondent now
appeals to this court.
Before turning to the legal issues which were debated in the High Court
and again in this court, I should refer to some other aspects of the facts which
were also not in dispute. On the 3rd September, 1990, following what was
said by the respondent to be the applicant's delay in remitting paid telephone
accounts to Kells and his failure to date stamp telephone accounts, a formal
warning notice was sent by the respondent to the applicant. On the 14th
November, 1990, the head postmaster in Kells again wrote to the applicant
drawing his attention to the fact that three accounts which were transmitted on
the 2nd or 3rd November, 1990, had in fact been paid between three and four
weeks previously by the customers concerned. It was said in that letter that the
date had been omitted from the date stamp in each case and it was suggested
that this might have been deliberately done to avoid having to send the
accounts in each day.
There were no further complaints concerning the applicant until October,
1995, when two customers raised queries as to telephone accounts which they
had paid to the applicant. On the 16th October, 1995, the head postmaster at
Kells wrote to the applicant seeking explanations in respect of three specific
complaints. In one case, it was said that a sum of 76.31 had been paid on the
25th August, 1995, but not transmitted to Kells until the 12th October,
following a query by the customer. In a second, it was said that a sum of
66.84 paid in late July, 1995, had not yet been received at Kells. In a third
case, a sum of 91.11 was said to have been paid on the 27th September,
1995, and was not forwarded to Kells until the 13th October, 1995. On the
18th October, 1995, the applicant wrote in reply disputing the date of the
payments in the first and third cases and, in the case of the second complaint,
stating that he had forwarded the payment by registered post.
The respondent appointed Mr. Martin Walsh, a senior investigating
officer, to investigate the matter. He interviewed the two customers concerned
and the applicant and was given six documents dealing with the accounts by
the applicant. Five of them did not bear any post office stamp and the sixth
bore a stamp on which the date was illegible. The applicant admitted to Mr.
Walsh that he had omitted to date stamp the documents but disputed the dates
on which the customers were said to have paid their bills. He also claimed that
the sum of 66.84 had been paid by him to Kells. He agreed that in future all
accounts would be date stamped clearly and legibly to the best of his ability.
[2000]
1 I.R.
Tierney v. An Post
Keane J.
On the 15th January, 1996, Mr. Pat Rooney of the respondent's head
office wrote to the applicant stating that the manner in which the applicant had
dealt with these accounts had seriously inconvenienced the subscribers
concerned and had brought the company into dispute with one of their major
customers. He said that the question of terminating the applicant's contract
was now under consideration but that, in order to afford him an opportunity of
furnishing any explanation or making any representations, no further action
would be taken for a period of fourteen days. This letter was replied to on the
applicant's behalf by the Irish Postmasters' Union: that letter vigorously
rejected what was seen as a suggestion by the respondent that the applicant
had been behaving improperly with regard to the monies in question. It was
pointed out on his behalf that he had transmitted thousands of such accounts
to the office at Kells over the years by registered post and that, for what was
described as very meagre remuneration, he had been providing an excellent
service to the local community. It would appear that the respondent did not
reply to this letter.
On the 15th March, 1996, Mr. Rooney wrote to the applicant as follows:"Following consideration of your case, I now have to inform you that the
company has ceased to have confidence in your ability to manage the office
and consequently, it has been decided to terminate your contract as
postmaster, Termon, with effect from the 29th March, 1996. You will be given
3 months scale payment in lieu of notice. Should you wish to appeal this
decision, you or your representative should do so within seven days.
I am sorry that your contract with the company has had to end in this way."
On the 21st March, 1996, the applicant notified the respondent that he
wished to appeal from the decision to terminate his contract and requested an
oral hearing of the appeal. This was held on the 28th May, 1996, before Mr.
Michael O'Connell, the manager of customer services for the respondent. The
applicant was accompanied by a Ms. McMahon, who in addition to being a
friend of the applicant was also a solicitor, but did not attend the meeting in
that capacity. The findings by the learned High Court Judge, at pp. 7 and 8 of
his judgment, as to what transpired at that meeting and subsequently to it,
6
which were not challenged on behalf of the respondent, are of importance and
should be set out:"Towards the end of the hearing, Mr. O'Connell asked if they considered they
had had sufficient time and a fair hearing, and asked if there was anything else
they wished to raise. Ms. McMahon then asked whether the appeal was being
decided on the two items of complaint from Mr. Clarke and Mr. McCabe, or
whether there were any other
[2000]
1 I.R.
Tierney v. An Post
Keane J.
items being considered and Mr. O'Connell replied that there were a number of
other items, namely, delays in sending accounts to the head office, failure to
date stamp accounts and illegible date stamping. Ms. McMahon's evidence is
that she pressed him as to what these items were and he said that he would
have to look at his file. Mr. O'Connell did not recollect this taking place,
although he does say that he had the full file in front of him, but he had not in
fact read all the material in it. I was generally very impressed with Ms.
McMahon's evidence, and I think it probable that Mr. O'Connell did make
some reference to consulting his file.
After the meeting concluded, Mr. O'Connell undertook further inquires on
issues on which he was not fully satisfied. He went to Kells Post Office and
looked at date stamps on a number of documents there, and went back to Mr.
Clarke and Mr. McCabe. His evidence was that at Kells Post Office he saw
some clear stamps on documents coming from the applicant and that as a
result of these inquiries he had serious doubts about the applicant's credibility.
In the course of the hearing the applicant had told him that he had problems
with his date stamp for years and that he had a bad date stamp and a lack of
ink for ink pads.
It should be added that Mr. O'Connell also had received letters from Mr.
Clarke and Mr. McCabe in which they both said they could not remember
when they paid the accounts which were in dispute."
On the 10th July, 1996, the respondent wrote to the applicant informing
him that, following consideration of the case, the chief executive of the
respondent had decided to reject the appeal and that the contract with the
company would now end with effect from the 26th July, 1996. It was said that
the office would then close on a temporary basis pending a review of services
in the area.
The learned High Court Judge concluded, at p. 8 that:"It is quite clear that when making his decision or recommendation, Mr.
O'Connell had before him the entire file of the respondent relating to the
applicant, a report from Mr. Walsh and his initial investigations, and the
results of investigations made by him or on his behalf subsequent to the
hearing. None of these matters were disclosed to the applicant at any time."
This finding was also not disputed on behalf of the respondent.
The applicant's contract with the respondent
The contract by virtue of which the applicant was appointed postmaster
was entered into between him and the Minister for Post and Telegraphs
[2000]
1 I.R.
Tierney v. An Post
Keane J.
on the 30th May, 1983. In that contract, the applicant acknowledged that he
was bound by the rules contained in certain rule books: those rule books have
since been replaced by a document called the Postmaster's manual issued by
the respondent. The provisions relevant to these proceedings in the contract
itself are as follows:"I acknowledge that I am responsible for the whole of the official cash, stock
of stamps, etc., both as regards those I hold myself and those I entrust to a
subordinate officer and that I am liable to make good, without delay, any loss
or default which may occur from any cause whatsoever. I also acknowledge
that my financial responsibility does not cease when I relinquish office and
that I will be required to make good any loss incurred during my term of
office which may subsequently come to light.
I also hereby acknowledge that the letter box at this office is the property of
the Department
I shall be prepared to make proper provision, including the lighting, heating
and cleaning of the premises, for postal, telegraph and telephone work and to
provide at the standard rate of payment for a continuous telephone service, if
at any time required to do so; also to provide the necessary facilities (pen, ink,
etc.) to the public to complete documents at the post office.
I am aware that canvassing with the object of diverting business from another
office, or any practice having this effect, is forbidden.
I agree to the condition that should I desire to resign my office I must give
three calendar months notice in writing, failing which I shall be liable to bear
any expense incurred by the Department in consequence.
I understand that I will be liable for any expenditure I may incur on the
improvement of premises or fittings.
I also understand that the appointment is an unestablished one; that it does not
entitle me to the privilege of free medical attendance, sick pay or annual leave
at the expense of the Department; that it does not confer any claim to an
established appointment or entitle me to compensation for loss of office or
award under the Superannuation Acts and that if it be deemed necessary at any
time to alter the duties, to withdraw any part of the work of the office, or to
introduce the salaried system of payment, I have no claim to compensation for
any disappointment or loss of emoluments which may result from the
change."
Clause 2.39 of the Postmaster's Manual provides as follows:[2000]
1 I.R.
Tierney v. An Post
Keane J.
Tierney v. An Post
Keane J.
the fact that Mr. O'Connell, in arriving at his decision, took account of Mr.
Walsh's report which had not been made available to the applicant and also
made further inquiries at Kells Post Office, the results of which were not
communicated to the applicant, was in breach of the principles of natural
justice.
10
Tierney v. An Post
Keane J.
11
12
of the respondent to control and direct his operations, it has frequently been
emphasised in the authorities that, while the degree of control exercised by the
other party is always a factor to be taken into account, it has long since ceased
to be regarded as the only factor to be taken into account.
It is of interest to note that in Hitchcock v. Post Office [1980] I.C.R. 100,
the English Employment Appeals Tribunal concluded that, in circumstances
[2000]
1 I.R.
Tierney v. An Post
Keane J.
closely resembling those with which we are concerned, the contract was one
for services and not of service. Slynn J., as he then was, delivering the
judgment of the appeal tribunal said that at pp. 108 and 109:"We accept, as Mr. Carr quite rightly has accepted, that there is here a
substantial measure of control which relates to the conduct of the Post Office's
business. It might be, if there were no other factors present, that that control
would be sufficient to make the contract one of service rather than for
services. But there are other factors present. The question in this case, it seems
to us, is really whether the control which does exist is such that it prevents the
contract from being one for services rather than of service. Accordingly we
must look at the matter as a whole. We consider here that great importance has
to be attached to the fact that the applicant provided the premises and a certain
amount of the equipment at his own expense. The sub-post office came into
what was his general store. It was a part of his own business. Moreover it is
clear that even though, apparently, he chose to spend a great deal of his
working week doing the sub-post office work at this particular premises
himself, he had the right to delegate, and did in fact delegate
Moreover it seems to us that even though there may be less chance of making
profit, or risk of loss than in many businesses, there was still here the chance
of profit and the risk of loss."
It seems to me that the reasoning in that passage, which is clearly in
accordance with the principles of law established in the many authorities on
the point, is entirely applicable to the facts of this case.
13
Tierney v. An Post
Keane J.
realm of private law or indeed of public law. It is sufficient to say that public
policy and the dictates of constitutional justice require that statutes,
regulations or agreements setting up machinery for taking decisions which
may affect rights or impose liabilities should be construed as providing for fair
procedures. It is unnecessary to decide to what extent the contrary can be
provided for by agreement between the parties."
That statement of the law is not confined to contracts of service. It is in
accordance with the general principle laid down by the same learned judge
in Meskell v. Coras Iompair ireann [1973] I.R. 121, that constitutional
rights may be protected or enforced in proceedings between private citizens
and not merely in proceedings against the State.
In the present case, the contract, although not a contract of service,
provided a machinery for taking a decision which could result, and did in this
case result, in the determination of the applicant's tenure of the office of subpostmaster. It is not in dispute that it had financial consequences for the
applicant which could fairly be equated to those resulting from a dismissal
from a particular employment.
14
Tierney v. An Post
Lynch J.
Lynch J.
I agree.
Solicitors for the applicant: Mel C. Kilrane & Co.
Solicitor for the respondent: Hugh O'Reilly.
Conor Power, Barrister
[2000] 1 I.R. 536
15