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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Fuller & Ors v. Minister for Agriculture and Food & Anor [2003] IEHC 27 (8 July 2003) URL: http://www.bailii.org/ie/cases/IEHC/2003/27.html Cite as: [2003] IEHC 27 |
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Fuller & Ors v. Minister for Agriculture and Food & Anor [2003] IEHC 27 (8 July 2003)
JUDICIAL REVIEW
RECORD NO 2003/321 JR
BETWEEN:
APPLICANTS
RESPONDENTS
JUDGMENT of Ms. Justice Carroll delivered the 8th day of July 2003.
The net point at issue in this case is the interpretation of Section 16 of the Civil Service Regulations Act 1956. It arises in the following circumstances:
All the applicants are established civil servants. All of them save one hold the rank of clerical officer. One of the applicants, Carmel Kelleher holds the rank of staff officer. They all work in the office of the Department of Food and Agriculture (the Department) Clonakilty Co. Cork. They are all members of the Civil and Public Service Union (CPSU).
An industrial dispute arose between CPSU and the Department. The CPSU gave notice by letter of 16th April 2003 that limited industrial action would commence in the Department's office at Clonakilty on 23rd April 2003.
The Applicants refused to deal with telephone queries, morning and afternoon, and refused to deal with counter queries in the afternoon. Having been warned orally the Applicants were issued with written warnings on 24th April 2003 stating they had been requested to deal with phone calls/fax messages/perform counter duties which are described as part of the core duties of the grade and warning that failure to deal with these would result in removal from the payroll.
On 23rd April 2003 a letter was issued to the Applicants referring to the warnings regarding refusal to perform the core duties of the grade and stating arrangements had been made to remove them from the payroll pursuant to Section 16 of the Civil Service Regulation Act 1956 (the 1956 Act) with effect from 28th April 2003 until normal duties were resumed.
By Order of Quirke J. dated 12th of May 2003 the Applicants were granted liberty to apply for judicial review seeking orders of certiorari and mandamus together with a declaration that the removal of the Applicants from the payroll from 28th April 2003 was ultra vires the 1956 Act and was null and void and a declaration that the removal was carried out in breach of natural justice, fair procedures and was null and void. The grounds on which the relief was granted was set out at E in the statement grounding the application. The basic ground is that the Respondents acted outside the authority conferred by Section 16 of the 1956 Act in removing the Applicants from the payroll in that the Applicants were not absent from duty within the meaning of Section 16 of the 1956 Act.
In the statement of grounds of opposition the Respondents pleaded that by refusing to perform their core duties the Applicants while present at their place of work were absent from duty without authority and accordingly the Respondents acted lawfully.
In his affidavit on behalf of the Respondents Mr. Joe Shorthall refers at paragraphs 4 and 6 to the Applicants' refusal to perform their key duties and says at paragraph 5 that it amounted to a refusal to perform core duties associated with their position as employees. He also said there was no question of the Respondent's disciplinary procedure or the terms of Sections 13, 14 and 15 of the 1956 Act applying to the present case. He said where the Applicants' refusal to perform duties arises in the context of ongoing industrial action, it would be inappropriate and fruitless to apply disciplinary procedures.
Section 16 of the 1956 Act provides as follows:-
(1) A civil servant shall not be paid remuneration in respect of any period of unauthorised absence from duty
(2) If any question arises as to whether a particular period of absence from duty of a civil servant is a period of unauthorised absence from duty the question shall be determined by the appropriate authority
The Applicants submit that "unauthorised absence from duty" is not defined in the Act and ought to be given its literal meaning. If the words of a statute are precise and unambiguous they should be given their ordinary and natural sense. (See Maxwell Interpretation of Statutes, 12th edition 1976 at p.28). There is no question of the literal approach leading to an absurd result. The earlier sections 13 to 15 deal with other aspects of the performance of duties.
Black's Law Dictionary 1990 defines absence as "the state of being absent, removed, or away from one's domicile, or usual place of residence, not present at a particular time; opposite of appearance at a specified time. "Absent" is defined as being away from; at a distance from; not in company with.
In Ashbury v. Ellis [1893] AC 339 it was held the ordinary meaning of the word "absent" is to describe a person or persons as not being in a particular place at the time referred to.
In Royle v. Trafford Borough Council [1984] IRLR 184 it was held that a teacher who refused to accept additional pupils but who continued to teach his existing pupils could not be regarded as absent from school or from his duties.
Section 16(2) envisages some controversy about whether a particular period is a period of unauthorised absence but not the absence itself. This supports the view that the concept of absence is not envisaged as being capable of attracting controversy.
The Respondents submit that as the phrase in Section 16 is "absence from duty" and not "absence from place of work", the failure to perform duties is the same as absence from duty. Duty must mean the full range of obligations under the terms of their engagement. So even if the applicants perform part of their employment obligations they would nevertheless be absent from duty within the meaning of Section 16.
In Bowes & Partners v. Press [1894] 1 QB 202 one of a number of colliery workers, a member of a trade union, refused to travel in a lift with 4 non union members. When the lift came back up seconds later the pit manager refused to allow the union member to descend. The issue before the Court of Appeal was whether the defendant was guilty of "absenting himself from his service" with the collier. Davy U said "There was during the whole three days a continued refusal to work except upon terms which the defendant had no right to impose upon the complainant and during the whole of those three days therefore he must be taken in my opinion to have
refused to work in accordance with his contract. Whether he is properly described as absenting himself I do not know but it is substantially the same thing."
The Respondents claim that even in the absence of an express statutory authority they would be entitled as of right to withdraw the Applicants' remuneration in circumstances where civil servants refuse to perform their duties. They refer to Csomore v. Public Service Board of New South Wales [1986] N.S.W. Lexus 6690 in which the industrial principle of "no work no pay" is referred to.
However it must be emphasised that the Respondents in the statement in opposition rely solely on the statutory power contained in Section 16 and not on common law or employment law. If the Applicants were not absent from duty within the meaning of Section 16, the act of removing them from the payroll was ultra vires and null and void.
In the scheme of the Act, Section 13 deals with grave misconduct or grave irregularity warranting disciplinary action or if the public interest might be prejudiced by allowing the civil servant to remain on duty. This section allows suspension. Section 14 deals with the payment or non payment of remuneration in respect of the period of suspension and includes provision for the person affected to make representations.
Section 15 deals with less serious matters in relation to official duties, such as misconduct, irregularity, neglect or unsatisfactory behaviour. There are special provisions where a loss of public money or funds occurs and where it does not. The Section allows for putting the civil servant on lower rate of pay or demotion in rank. Before any action is taken the civil servant is to be afforded an opportunity of making any representations he wishes to make.
Section 16, the critical section, simply provides that there should be no remuneration where there is unauthorised absence from duty. There is no provision that the person should be afforded an opportunity to make representations.
In my opinion this in itself is strong internal evidence in the statute that absence means physical absence. After all if the civil servant has taken off for Australia the obvious remedy is to stop his/her pay cheque and not to start looking around to try to find him or her to look for an explanation.
As subsection 2 provides, it is only if any question arises as to whether the period of absence was unauthorised or not that it falls to be determined by the appropriate authority, which determination which would have to be conducted in accordance with fair procedures.
I do not accept the reasoning of Davy LJ in Bowes & Partners v. Press [1894] 1 QB 202 that in refusing to travel in the cage with non union workers, a miner was "absenting himself from the service". In any event the case was decided on employment contract law and not on an interpretation of a statute.
I do agree with the reasoning in Royle v. Trafford Borough Council [1984] IRLR 184 which held that a teacher who taught a class but refused to accept five additional students could not be regarded as being absent from duties. This case depended on an interpretation on conditions of service for school teachers in England and Wales which provides for reductions from salary where unpaid leave of absence occurs. This case is a closer analogy to the present case.
In my view Section 16(1) envisages a physical absence from work duties and not, as in this case, a physical presence but only performing part of the duties of the post.
In the normal way, if there was no union involvement with industrial action, and a civil servant decided that he/she would not perform certain duties, it seems to me that this would fall under Section 15 as neglect of official duties and could be dealt with accordingly and the civil servant would have the opportunity to make representations under Section 15(5). But the Respondents have ruled out using the powers given by Section 15, probably on a pragmatic basis because they believe it would escalate the industrial dispute. In doing so they ruled out a remedy otherwise available to them.
In my opinion a partial withdrawal from work duties does not constitute unauthorised absence from duty.
Since the exercise of the power under Section 16 was ultra vires, the removal of the Applicants from the payroll while they were performing partial duties was therefore null and void. The question of whether the removal was carried out in breach of natural justice and fair procedures does not arise. Likewise the issue of whether the applicants were in fact suspended does not arise.
Accordingly the Applicants are entitled to an order of certiorari of the decision to remove the applicants from the payroll from 28th April 2003 and a declaration that the removal of the applicants from the payroll from 28th April 2003 in purported reliance upon Section 16 of the Civil Service Regulation Act 1956 is ultra vires Section 16 of the 1956 Act null and void and of no force and effect.
