Supreme Court dismisses appeal; partial duty withdrawal is not unauthorized absence under Civil Service Regulation Act 1956.

THE SUPREME COURT

Record no. 307/2003

Murray C.J.

McGuinness J.

Hardiman J.

BETWEEN

MARIE FULLER, ANNE-MARIE COLLINS, NUALA O’MAHONY, CARMEL KELLEHER, BRENDAN FARR, MARGARET COLLINS, GRETTA

COLEMAN, GERALDINE HURLEY, KAREN MURPHY, MAIREAD OCONNELL, GRETE HEGARTY, BRIAN O’REGAN, HUGH O’REILLY

AND DEIRDRE COOMEY

APPLICANTS/RESPONDENTS

AND

THE MINISTER FOR AGRICULTURE AND FOOD AND THE MINISTER FOR FINANCE

RESPONDENTS/APPELLANTS

Judgment of Mrs Justice McGuinness delivered the 16th day of March 2005

INTRODUCTION

1. This is an appeal by the respondents from the judgment of Carroll J. (8th July 2003) in judicial review proceedings. The learned trial

judge held that the respondents had acted ultra vires in removing the applicants from the payroll of the Department of Agriculture

and Food pursuant to section 16 of the Civil Service Regulation Act 1956. The applicants are civil servants in that Department who

were at the time of their purported removal from the payroll engaged in an industrial dispute with the first named respondent.

FACTUAL BACKGROUND

2. The background to the dispute and to the applicants’ judicial review proceedings is set out in the grounding affidavit of the first

named applicant, Marie Fuller. The main facts are not in dispute. All the applicants were at the time established civil servants working

in the office of the Department of Agriculture and Food in Clonakilty, Co. Cork. One of the applicants, Carmel Kelleher, held the rank of

staff officer; all the remaining applicants were clerical officers. All the applicants were members of the Civil and Public Service Union

(“the CPSU”). During the early part of 2003 an industrial dispute arose between the first named respondent (“the Department”) and

the CPSU concerning promotional and grading structures in the Department’s local offices. The members of the Union engaged in what

is described as “limited industrial action” in a number of local offices throughout the country. In the Clonakilty office, which is the one

relevant to these proceedings, this “limited industrial action” consisted in the staff members concerned attending at their place of

work but refusing to deal with telephone and fax queries both in the mornings and in the afternoons and refusing to deal with counter

queries in the afternoons. Dealing with these queries was part of the normal duties of the officers concerned.

3. This form of industrial action commenced in the Clonakilty office on the 23rd April 2003, notice of the impending action having been

given to the Department by the CPSU by letter dated the 16th April 2003. When the limited industrial action commenced on 23rd April

Ms Fuller and the other applicants met with Ms Kathryn Twomey, a higher executive officer, who asked whether they were willing to

resume their normal duties. They refused. They were then informed that if they continued to refuse to resume their normal duties

they would be served with a written warning followed by a final verbal warning followed by removal from the payroll. On 25th April

2003 Ms Twomey issued a written warning and a final verbal warning to the applicants. Again the applicants were asked if they would

resume normal duties. They refused.

4. Later on 25th April each applicant received an e-mail in the following terms:

“Dear Colleague,

I refer to the verbal and written warnings that have issued to you regarding your refusal to perform the core duties of your

grade. Despite these warnings you have refused to perform these duties and accordingly arrangements have been made to

remove you from the payroll pursuant to section 16 of the Civil Service Regulation Act 1956 with effect from 28th April 2003

until you resume normal duties.

An original letter will issue to each individual by post.

Joe Shorthall

Personnel Division.”

5. From their removal from the payroll the applicants ceased to attend at work and placed a picket on the Clonakilty office. It appears

that their removal from the payroll was confirmed by letters addressed to them at the office.

6. On 12th May 2003 the applicants issued their judicial review proceedings. They were granted leave by order of the High Court

(Quirke J.) on that date. Leave was granted to apply for the following reliefs:

“I. Certiorari of the decision to remove the applicants from the payroll from 28th April 2003.

II. An order of mandamus directing the respondents to restore the applicants to the payroll as and from 28th April 2003.

III. 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 or effect.

IV. 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 was carried out in breach of natural justice and fair procedures and is null and void

and of no force or effect.”

7. Sixteen grounds for these reliefs were allowed. Grounds 1 to 11 set out the factual background; grounds 12 to 15 are those which

are relevant to the present appeal and they were set out as follows:

12. “The respondents acted outside the authority conferred on them 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.

13. Further and without prejudice to the foregoing the respondents acted outside the authority conferred on them by section

16 of the 1956 Act in removing the applicants from the payroll in that the said removal amounted to a suspension from duty

without pay. Section 16 does not authorise suspension

14. Further and without prejudice to the foregoing, in purporting to suspend the applicants without pay under section 16 of

the 1956 Act, the respondents deprived the applicants of the rights which they would have enjoyed had they been suspended

under section 13 of the 1956 Act and denied their pay under section 14 of the 1956 Act in accordance with the procedures laid

down by Circular 1/92.

15. Further and without prejudice to the foregoing, the respondents acted outside the authority conferred upon them by

section 16 of the 1956 Act in removing the applicants from the payroll in that the said removal amounted to the imposition of

a penalty upon the applicants and the respondents did not have power to impose such a penalty and the respondents did not

afford the applicants fair procedures prior to the imposition of that penalty.”

8. The respondents filed a statement of opposition on the 20th May 2003. In their statement the respondents relied on the powers

conferred on them by section 16 of the Civil Service Regulation Act 1956 (“the 1956 Act”). At paragraph two of the statement it was

pleaded that:

“…by refusing to perform their core duties as described in paragraph ten of the statement grounding the application for

judicial review the applicants, while present at their place of work, were absent from duty without authority and accordingly

the respondents their servants or agents acted lawfully in removing the applicants from the payroll.”

9. The other allegations set out by the applicants were denied and the Statement of Opposition concluded (at paragraph 7):

“7. It is admitted that the applicants have been and continue to be deprived of their remuneration however it is pleaded that

in so depriving the applicants the respondents have acted lawfully and in accordance with the powers conferred upon them by

section 16 of the Civil Service Regulation Act 1956.”

THE STATUTE

10. While it is clear that the core issue before both the High Court and this court is the interpretation of section 16 of the Civil

Service Regulation Act 1956, reference was made both in the pleadings and in legal argument to preceding sections of that Act. It is

therefore helpful to set out some relevant provisions of sections 13, 14 and 15, together with the full text of section 16, of the 1956

Act.

11. Section 13 deals with the suspension of civil servants from duty by a “suspending authority” as defined in section 3 of the Act. It

provides:

“13.(1) A suspending authority may suspend a civil servant if –

(a) it appears to that suspending authority that the civil servant has been guilty of grave misconduct or of grave

irregularity warranting disciplinary action, or

(b) it appears to that suspending authority that the public interest might be prejudiced by allowing the civil servant to

remain on duty, or

(c) a charge of grave misconduct or grave irregularity is made against the civil servant and it appears to that

suspending authority that the charge warrants investigation.

(2) A suspending authority may terminate the suspension of a civil servant suspended under subsection (1) of this section.”

12. Section 14 makes a number of provisions concerning the remuneration of a civil servant who has been suspended from duty.

“14(1) Where a suspending authority terminates the suspension of a civil servant by restoring him to duty and the appropriate

authority is satisfied that the civil servant has not been guilty of misconduct or irregularity (including misconduct or

irregularity charged against him after suspension), the civil servant shall be paid ordinary remuneration in respect of the

period of suspension.

(2) Where a suspending authority terminates the suspension of a civil servant by restoring him to duty and subsection (1) of

this section does not apply –

(a) the appropriate authority, if satisfied that considerations of equity so require, shall direct that ordinary

remuneration, in whole or part, as the appropriate authority may direct, shall be paid to the civil servant in respect of

the period of suspension,

(b) before the appropriate authority decides not to give a direction under paragraph (a) of this subsection or decides to

give a direction under that paragraph for payment of part only of ordinary remuneration, the civil servant shall be given

an opportunity of making to the appropriate authority any representations he may wish to offer.”

13. Subsection (3) deals with the situation which arises when the suspension of a civil servant is terminated by his dismissal from

office and is not relevant to the present case.

14. Section 15 deals with disciplinary measures. Under this section where a civil servant has in relation to his official duties been

guilty of “misconduct, irregularity, neglect or unsatisfactory behaviour” he may be subjected to disciplinary measures. If his conduct

has not resulted in a loss of public monies or public funds the civil servant may be placed on a lower rate of remuneration or may be

reduced to a specified lower grade or rank. If on the other hand his conduct has resulted in loss of public monies or public funds, the

civil servant may be placed on a lower rate of remuneration, reduced to a specified lower grade or rank or both placed on a lower rate

of remuneration and reduced in rank. The remainder of the section deals with the detail of the implementation of these disciplinary

measures.

15. Section 16 of the Act provides:

“16(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 JUDGMENT OF THE HIGH COURT

16. The learned trial judge outlined the factual background and referred to the arguments made in the pleadings. She referred to the

respondents’ assertion that the applicants’ actions amounted to a refusal to perform core duties associated with their position as

employees. The respondents’ view was that it would be inappropriate and fruitless to apply disciplinary procedures as set out in

sections 13, 14 and 15 of the 1956 Act. The applicants contended that the phrase “unauthorised absence from duty” was not defined

in the Act and ought to be given its literal meaning. The learned judge referred to the definition of absence in Black’s Law Dictionary

which defined absence as a “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” was defined as being away from; at a distance from; not in

company with.

17. The learned trial judge went on to refer to a number of English decisions which dealt with questions of employees’ absence, or

unauthorised absence, from their employment. I will refer to some of these decisions later in this judgment. These decisions referred in

general to the common law of contract and of employment. Carroll J. emphasised, however, that in their statement of opposition the

respondents relied solely on the statutory power contained in section 16 of the 1956 Act. The learned trial judge concluded that in

her view section 16(1) envisaged 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. At page 7 of her judgment she went on to say:

“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.”

18. Carroll J. concluded that, 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 did not arise, and neither did the issue as to whether the applicants were in fact

suspended.

19. The learned trial judge held that the applicants were 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 was ultra vires section 16 of the 1956 Act and was null

and void and of no force and effect.

GROUNDS OF APPEAL

20. In their notice of appeal the respondents rely on the following grounds:

“1. The learned High Court judge erred in fact and in law in determining that the applicants’ refusal to perform part of their

duties did not and could not constitute ‘unauthorised absence from duty’ within the meaning of section 16 of the Civil Service

Regulation Act 1956.

2. That the learned High Court judge erred in law in determining that ‘unauthorised absence from duty’ within the meaning of

section 16 of the Civil Service Regulation Act connoted physical absence only and could not apply to a situation whereby civil

servants attended at their place of work and refused to perform some or all of their duties.

3. That the learned High Court judge erred in law in determining that the applicants’ refusal to perform part of their duties fell

to be dealt with in accordance with the disciplinary codes set out in section 13 to 15 of the 1956 Act.

4. That in so determining the learned High Court judge erred in law in failing to have any or any adequate regard for the fact

that the refusal by the applicants to perform part of their duties was pursuant to industrial action organised by the applicants’

trade union.

5. That the learned High Court judge erred in fact and in law in failing to have any or any adequate regard for the fact that

the respondents indicated to the applicants in advance that they were not prepared to accept partial performance of their

duties.”

SUBMISSIONS OF COUNSEL

21. Senior Counsel for the respondents/appellants, Mr O’Moore, submitted that once the applicants refused to carry out certain core

duties the first named respondent was entitled to treat them as having absented themselves from work and to remove them from the

payroll. Physical attendance simpliciter could not constitute “presence for duty”. The first named respondent was entitled to reject

the partial performance of their contracts offered by the applicants and to treat them as having absented themselves from their

duties. The respondents denied that it would be appropriate for them to invoke disciplinary procedures in a situation involving

industrial action.

22. In making these submissions Mr O’Moore referred to a number of English decisions. The first of these was Bowes and Partners v

Press [1894] I Q.B. 202. In that case, in the context of an industrial dispute at a coalmine, the defendant was a worker at the colliery

who presented himself for work at the proper time but refused to travel down to the mine in a cage with workers who were not

members of the union. When the cage came back up seconds later the pit manager refused to allow the union members to descend in

it. The issue which came before the Court of Appeal was whether the defendant was guilty of “absenting himself from his service”

with his employer. At page 211 of the report Davey L.J. dealt with the issue in the following terms:

“Now I must confess that I found this a question of very great difficulty. It seemed to me at first sight a stretch of language

to say that a refusal by the workman at 4 o’clock in the morning to descend in the cage indicated by the under-manager, but

followed ten seconds afterwards, when the next cage came up, by a willingness to go down to his work and to do the ordinary

daily work, constituted an absenting himself from his employment during the continuance of a shift. But I must also confess

that further consideration of the facts of this case, and of the proper inference to be drawn from them, has removed that

impression. I agree with Lindley, L.J. that the solution to the problem submitted to us is this – that the whole course of

conduct of the defendant was founded, not on a casual refusal to go down in a particular cage, but on a settled policy and a

preconcerted course of action… There was, therefore, during the whole three days a continued refusal to work except upon

terms which the defendant had no right to impose upon the complainants; 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 that is properly

described as ‘absenting himself’ I do not know, but it is substantially the same thing. It is a refusal to work in accordance with

the contract: not an absolute refusal to work, but a refusal to work in accordance with the contract. That being so I am of

the opinion that we must answer this question by saying that the defendant did ‘absent himself from his employers’ service’ in

the sense, which, as I have said, I put upon these words.”

23. Mr O’Moore submitted that this passage was authority for the proposition that the phrase “absent from duty” can apply to a

scenario where an employee is physically present for work but refuses to perform his or her contractual obligations. Secondly he

submitted that it demonstrated that the attitude of the applicants was fundamentally unreasonable in that they claimed that they

had a right to impose partial performance of their contracts on the respondents and that the respondents were still obliged to pay

them.

24. Counsel for the respondents submitted that the learned trial judge had erred in rejecting the reasoning of Davey L.J. in the Bowes

case. He submitted that she had also erred in her interpretation of the reasoning in the case of Royle v Stafford Borough Council

[1984] I.R.L.R. 184.

25. In that case the plaintiff was employed by the defendants as an assistant teacher in a primary school. He was a member of the

National Association of Schoolmasters. In 1979, in order to make economies, the defendants’ Education Committee decided to reduce

the level of teaching staff. In response, the union instructed its members to continue to teach the same timetable and not to accept

additional pupils in the class. The plaintiff at the relevant time had thirty one pupils in his class. At the end of the term, when classes

were reorganised, he was instructed to take five additional pupils. He refused to teach the five additional pupils but his employers

permitted him to remain on the school’s premises and to teach his original thirty one pupils. This situation lasted for some six months.

At the end of the six months the defendants regarded the plaintiff as having failed to carry out the terms of his contract of

employment and refused to pay his salary for the relevant period. The plaintiff sued for a breach of contract in respect of his unpaid

salary.

26. The High Court (Mr Justice Parke) held that the defendants were not entitled to withhold all of the plaintiff’s teacher’s salary for

the period of six months during the industrial action. Throughout the relevant period the plaintiff had conscientiously discharged his

duties as a teacher for a class of thirty one pupils and the defendants had provided him with all the facilities necessary for conducting

a class of that size. By their conduct in accepting his imperfect performance of his contract of employment the defendants had

impliedly affirmed the plaintiff’s contract. On the evidence, the defendants knew that the plaintiff and other teachers would be

tendering performance of their contract otherwise than in accordance with the strict terms thereof. The court held that the

defendants were entitled to withhold a sum of 5/36ths of the plaintiff’s salary over the period to reflect the fact that he had not

taught the five additional pupils.

27. In her judgment in the present case the learned trial judge (at page 6 of her judgment) stated:

“I do agree with the reasoning in Royle v Stafford Borough Council [1984] I.R.L.R. 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 duty. 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.”

28. Mr O’Moore submitted that the learned trial judge erred in holding that there was a close analogy between the two cases. The

crucial factor in the Royle case was that the employers had specifically permitted the plaintiff to continue to teach the thirty one

pupils and thus accepted the situation. In the present case the Department had from the outset made it clear to the applicants that

it did not accept the applicants partial performance of their duties and that if they continued in the partial withdrawal of their

services they would be removed from the payroll under section 16. The present case was therefore more analogous to the Bowes

case.

29. Counsel for the respondents also relied on a judgment of the House of the Lords in Miles v Wakefield Metropolitan District Council

[1987] 1 A.C. 539. In that case the plaintiff was a marriage registrar who refused to perform ceremonies on Saturday mornings. The

defendant council accepted the partial performance of the contract and made a deduction of 3/37th from his salary and the plaintiff

sued for recovery of this amount. Mr O’Moore submitted that during the course of the judgments the House of Lords dealt with the

issue of limited industrial action and with the effects of a refusal to work in accordance with the terms of a contract. The House of

Lords also held that although the plaintiff was not a servant of the defendant council under a contract of employment but the holder

of an office, his position was similar to that of an employee and for the purposes of the appeal there was no logical distinction

between them. Mr O’Moore submitted that in the Myles case also the employer had accepted the plaintiff’s partial carrying out of his

duties and thus the plaintiff was entitled to payment for the work that he had done. In the present case there was no acceptance of

partial performance of the applicant’s duties.

30. Mr O’Moore argued that the logic of the applicant’s claim was that provided they physically presented themselves at their place of

work they were “present for duty” and were entitled to be paid. He suggested that this argument would appear to apply equally well

even if they attended at their place of work and performed no duties or some minimal amount of their duties. In those circumstances

the applicants would still be entitled to pay unless the respondent initiated disciplinary proceedings against them or, perhaps,

physically excluded them from their place of work. He submitted that the learned High Court judge erred in law and in fact in

concluding that the respondents were not entitled to reject the partial performance of their work offered by the applicants and to

treat them as having absented themselves from their duties.

31. In reference to the applicants argument that it was open to the first named respondent to take action pursuant to sections 13,

14 and 15 of the 1956 Act (which argument was accepted by the learned trial judge) Mr O’Moore submitted that the applicants and

their Trade Union would undoubtedly object in the strongest terms if the respondents took the view that participation in limited

industrial action meant that the trade union’s members were “guilty of grave misconduct or of grave irregularity warranting

disciplinary action” within the meaning of section 13. It was clear that disciplinary action was inappropriate in a case like this where

the applicants were part of an organised campaign of limited industrial action.

32. Senior counsel for the applicants, Mr Cush, submitted that the present case was not based on contract, but on the interpretation

of section 16 of the 1956 Act and other relevant sections of that Act. The authorities upon which counsel for the respondents had

relied were in essence irrelevant as they dealt either with employer/employee relationships governed by contract or with the operation

of statutory schemes solely applicable to English local authorities. In the present case in their statement of opposition the

respondents had relied solely on their rights under section 16 of the 1956 Act. They could not now be heard to argue the case on a

wholly different basis, that of contract.

33. The rules of statutory interpretation were clear and had been set out in the well known passage in the judgment of Blayney J. in

Howard v Commissioners of Public Works [1994] 1 I.R. 101:

“The cardinal rule for the construction of Acts of Parliament is that they should be construed according to the intention

expressed in the Acts themselves. If the words of the statute are themselves precise and unambiguous, then no more can be

necessary than to expand those words in their ordinary and natural sense. The words themselves alone do in such a case best

declare the intention of the lawgiver…(per Lord Backburn in Direct United States Cable Company v. Anglo American Telegraph

Co. [1877] 2 App. Cas. 394)…”

34. Mr Cush submitted that the rule was expressed in very similar terms in Maxwell on the Interpretation of Statutes (12th edition

1976) at page 28:

“The rule of construction is ‘to intend the legislature to have meant what they have actually expressed’ (per Parke J. in R v

Banbury (Inhabitants) [1834] 1 A.& E. 136 at page 142). The object of all interpretation is to discover the intention of

Parliament, but the intention of Parliament must be deduced from the language used (per Lord Parker C.J. in Capper v Baldwin

[1965] 2 Q.B. 53 at p.61) for:

‘it is well accepted that the beliefs and assumptions of those who frame Acts of Parliament cannot make the law’

(per Lord Morris of Borth-y-Gest in Davies Jenkins and Company v Davies [1967] 2 W.L.R. 1139 at p.156).”

35. Mr Cush accepted that where application of the literal approach led to an absurd result the courts had recourse to alternative

approaches to statutory interpretation. However, he submitted, no question of absurdity arose in the present case.

36. As had been stated by the learned trial judge in her judgment Black’s Law Dictionary (1990) provided the following definitions:

“Absence. 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. Being away from; at a distance from; not in company with.”

37. Mr Cush referred to the case of Ashbury v Ellis [1893] A.C. 339 In that case the Privy Council dealt with the question of

proceedings against a defendant who had for a short time been resident in New Zealand but was no longer present in that jurisdiction.

In the judgment of the Privy Council delivered by Lord Hobhouse it was held that the word “absent” in the Rules of Court “was used in

its ordinary sense and describes persons who are not in New Zealand.”

38. Counsel submitted that the scheme of the 1956 Act itself was of assistance in determining the meaning of the word “absence”.

The Act set out a scheme for the discipline of civil servants and envisaged the application for fair procedures and the imposition of

proportionate penalties. He detailed the provisions of sections 13, 14, 15 and 17. He pointed out that section 17 authorised the

second named respondent to fix the terms and conditions of service of civil servants. In an apparent exercise of this power the

second respondent had issued Circular 1/92 to which the applicants had referred in their pleadings. That circular contained a

disciplinary code which purported to provide for the imposition of various penalties and for the procedures to be followed prior to the

imposition of any such penalty. Thus the various sections of the Act and the departmental circular provided for fair disciplinary

procedures and for proportionate penalties.

39. Mr. Cush submitted that none of these procedures were applicable in the case of section 16, which was mandatory in nature – a

civil servant “shall not be paid remuneration in respect of any period of unauthorised absence from duty.” (My emphasis). It was

notable that subsection (2) of the section envisaged that a question might arise as to whether a particular period of absence from

duty was or was not unauthorised but there was no indication within the wording of the section that a question could arise as to

whether a civil servant was or was not “absent from duty”. The concept of “absence” was not envisaged as being capable of

attracting controversy.

40. Counsel for the applicants drew attention to paragraph 2 of the respondents statement of opposition where it is alleged that:

“By refusing to perform their core duties…the applicants, while present at their place of work, were absent from duty without

authority”.

41. This appeared to imply that a civil servant who was present at his place of work but refused to carry out certain duties might be

absent without authority within the meaning of section 16. If this court were to accept the meaning contended for by the

respondents the question whether or not a civil servant’s refusal to carry out duties amounted to absence from duty without

authority would be open to argument on every occasion. The decision maker would be required to consider the type of duty in

question, the reason for the refusal, the duration of the refusal and other relevant questions. Even though the refusal to perform

certain duties was only partial under section 16 the decision maker would have no discretion to make part payment to the civil

servant; it would be essential simply to remove the civil servant in question from the payroll regardless of the quantum and quality of

the work in fact carried out. This would amount to the imposition of a penalty not envisaged by section 16 of the 1956 Act or indeed

any other section of the Act.

42. Counsel for the applicants referred to paragraph 5 of the respondents’ grounds of appeal (quoted above) where it was asserted

that the learned High Court judge erred in failing to have any or any adequate regard for the fact that the respondents indicated to

the applicants in advance that they were not prepared to accept partial performance of their duties. The respondents in their

submissions to this court argued that they were entitled to reject the partial performance of the contracts offered by the applicants

and to treat them as having absented themselves from their duties. Mr Cush submitted that the respondents had not relied on this

ground in their statement of opposition or indeed in their written and oral submissions to the learned High Court judge. They should

not be permitted to make this argument now.

43. In dealing with the respondents’ argument concerning the alleged failure of the applicants to fulfil the core duties of their contract

Mr Cush relied on the judgment of this Court in Carr v Minister for Education and Science and City of Limerick Vocational Education

Committee [2001] 2 I.L.R.M. 272 in which this court had held that even if a common law right arose under contract of employment, a

Minister who had suspended salary in purported exercise of a statutory power could not rely on the common law right in defence of

the suspension of salary. Further reference to this decision will be made later in this judgment.

CONCLUSIONS

44. The core issue in this appeal is the interpretation of section 16 of the Civil Service Regulation Act 1956. This is clear both from

the evidential material which is before the court and from the pleadings.

45. The written warning which was received by the applicants is exhibited in the grounding affidavit of Ms Fuller. It reads as follows:

“You have been requested to deal with phone calls/fax messages/perform counter duties which are part of the core duties of

your grade. You have indicated that you are not prepared to do this.

You have already been warned orally that refusal may result in your removal from the payroll pursuant to section 16 of the

Civil Service Regulation Act 1956. The purpose of this communication is to give you a final warning that continued refusal to

deal with phone calls, fax messages/perform counter duties will result in your removal from the payroll.”

46. This was signed by Ms Kathryn Twomey, higher executive officer and dated 25th April 2003. It is clear that both the oral and the

written warnings were based on section 16 of the 1956 Act. No other basis for the applicants’ removal from the payroll is suggested.

47. The same applies to the e-mail sent to the applicants by Mr Joe Shorthall on 25th April 2003, which reads as follows:

“Dear Colleague,

I refer to the verbal and written warnings that have issued to you regarding your refusal to perform the core duties of your

grade. Despite these warnings you have refused to perform these duties and accordingly arrangements have been made to

remove you from the payroll pursuant to section 16 of the Civil Service Regulation Act 1956 with effect from 28th April 2003

until you resume normal duties. An original letter will issue to each individual by post.

Joe Shorthall,

Personnel Division

25th April 2003”

48. It must be assumed that the hard copy letter which was subsequently sent to the applicants was couched in similar terms.

49. The statement of opposition filed by the respondents relies exclusively on the respondents powers under section 16. At paragraph

two it is denied that the respondents acted outside the authority conferred upon them by section 16(1) of the 1956 Act in removing

the applicants from the payroll. At paragraph 5 it is pleaded that if, which is denied, the removal of the applicants from the payroll of

the respondents amounts to a penalty then the respondents their servants or agents imposed the said penalty lawfully and in

pursuance of the terms of section 16 of the Act. The respondents deny that sections 13 or 14, or Circular 1/1992, have any

application to the situation of the applicants. In summary it is asserted that in depriving the applicants of their remuneration the

respondents have acted lawfully and “in accordance with the powers conferred upon them by section 16 of the Civil Service

Regulation Act 1956.”

50. Neither in the evidence nor in the pleadings is there any mention of common law duties of contract as between the applicants and

the respondents. While I would accept the respondents submission that the reasoning in the Royle v Stafford Borough Council case is

of no assistance to the applicants, since the ratio of that case turned on the acceptance by the employers of the plaintiffs’ part

performance of his duties, I do not believe that reliance on an implied contractual relationship between the applicants and the

respondents is of any real relevance in the present case.

51. The decision of this court in Carr v Minister for Education and Science and the City of Limerick Vocational Education Committee

[2001] 2 I.L.R.M. 272 is, I believe, of some assistance here. The facts of that case are very complex and there is no need to recite

them in full here. Following a long history of negotiations the Minister for Education wrote to the applicant, Ms Carr, saying that he

would be forced to suspend her salary as a teacher under the provisions of section 7 of the Vocational Educational (Amendment)

Committee Act 1944 if she refused to make herself available for discussions. When the applicant did not reply to this letter the

Minister suspended payment of her salary. The applicant was granted an order of certiorari by Morris P. in the High Court quashing the

decision purporting to suspend payment of her salary. The High Court also made a declaratory order to this effect and an order that

all arrears of salary be paid to the applicant. In this court the respondents appeal was dismissed by a unanimous decision of a five

judge court. Judgment was delivered by Geoghegan J. As set out in the head-note the court held that section 7 of the Vocational

Education (Amendment) Act 1944 did not give the Minister power to suspend payment of a salary on the grounds of unreasonable

behaviour or otherwise. To rely on a statutory power to suspend salary it was necessary to point to a statutory power which

expressly permitted it. Furthermore the Minister could not attempt to assert a common law right to suspend the applicant’s salary as

at all material times he attempted to rely on a statutory power to do so. At page 286 of the report Geoghegan J. stated:

“To rely on a statutory power to suspend salary only it is necessary to point to a statutory provision which expressly permits

it. Mr O’Reilly did also argue that independently of the Act there might have been a common law right to withhold salary. This

argument was more fully developed by Mr Kerr. That argument, however, formed the major submission at the hearing of the

appeal by Mr Crosbie, counsel for the VEC, and I will consider it in more detail in that context. It would seem quite clear that

the Minister cannot possibly for the purposes of this appeal rely on a common law right to suspend salary. At all material times

he relied on the statutory power and that continued in the pleadings in the proceedings.”

52. In the present case also the respondents have at all material times relied on the statutory power contained in section 16 of the

1956 Act and, if this appeal is to succeed, the respondents must in my view show that section 16 expressly permits them to remove

the applicants from the payroll of the Department in the circumstances described in the evidence which is before the court.

53. Can, therefore, the words of section 16(a) “unauthorised absence from duty” be interpreted, in accordance with the established

canons of construction, to mean the refusal of the applicants, despite their physical presence at their place of work, to perform what

the respondents describe as their “core duties”?

54. The respondents argue that the learned trial judge’s interpretation of section 16(a) would lead to a conclusion that if the

applicants attended at their place of work but did no work at all they would still be entitled to their full pay. This, the respondents

say, would be unsustainable. While such a situation could be extremely undesirable it may not, in certain circumstances, be contrary

to law. In the Carr v Minister for Education case on two separate occasions this court has held that the plaintiff was entitled to be

paid her salary over a period of several years despite the fact that she had not worked in any employment as a teacher during the

relevant period.

55. The applicants in their submissions refer to the dicta of Blayney J. in Howard v Commissioners of Public Works [1994] 1 I.R. 101

(quoted above). At a later point in his judgment in that case Blayney J. dealt further with the interpretation of statutes, citing Craies

on Statute Law. At page 153 of the report the learned judge said:

“In asking the Court to construe s.84 as relieving them from having to apply for planning permission, the Commissioners are

asking the Court to speculate as to the intention of the legislature in enacting s.84, something which no court may do. To cite

again Craies on Statute Law at p.66:-

‘A general proposition that it is the duty of the Court to find out the intention of Parliament…cannot by any means be

supported said Lord Simonds in 1957. Some fifty years before in Salomon v. Salomon & Co. Ltd. [[1897] A.C. 22, 38] Lord

Watson had said: ‘Intention of the legislature’ is a common but very slippery phrase, which, popularly understood, may

signify anything from intention embodied in positive enactment to speculative opinion as to what the legislature probably

would have meant, although there has been an omission to enact it. In a court of law or equity, what the legislature

intended to be done or not to be done can only be legitimately ascertained from what it has chosen to enact, either in

express words or by reasonable and necessary implication. After expounding the enactment, it only remains to enforce

it, notwithstanding that it may be a very generally received opinion that it does not produce the effect which the

legislature intended, or might with advantage be modified. The meaning which words ought to be understood to bear is

not to be ascertained by any process akin to speculation: the primary duty of a court of law is to find the natural

meaning of the words used in the context in which they occur, that context including any other phrases in the Act which

may throw light on the sense in which the makers of the Act used the words in dispute.’

It was also submitted that it would be an absurd situation if the Commissioners had to comply with s.84 and also obtain

planning permission, but where, as here, the provisions of the sections are quite clear the Court is obliged to give effect to

them even if the effect of doing so may not appear to be entirely reasonable.

‘Where, by the use of clear and unequivocal language capable of only one meaning, anything is enacted by the

legislature, it must be enforced however harsh or absurd or contrary to common sense the result may be. The

interpretation of a statute is not to be collected from any notions which may be entertained by the Court as to what is

just and expedient: words are not to be construed, contrary to their meaning, as embracing or excluding cases merely

because no good reason appears why they should not be embraced or excluded. The duty of the court is to expound the

law as it stands, and to leave the remedy (if one be resolved upon) to others.

Maxwell on the Interpretation of Statutes (12th ed., 1976) at page 29.’”

56. The dicta of Blayney J. are echoed in the judgment of Denham J. At page 162, under the heading of “Applying the rules of

construction to the Act” Denham J. stated:

“Statutes should be construed according to the intention expressed in the legislation. The words used in the statute best

declare the intent of the Act. Where the language of the statute is clear we must give effect to it, applying the basic meaning

of the words. There is well established case law on this aspect of statutory construction.

Thus in In re MacManaway [1951] A.C. 161 at p. 169, Lord Radcliffe, in dealing with a reference for advice as to a question as

to the meaning of certain words which were contained in the House of Commons (Clergy Disqualification) Act, 1801, said:-

‘The meaning which these words ought to be understood to bear is not to be ascertained by any process akin to

speculation. The primary duty of a court of law is to find the natural meaning of the words used in the context in which

they occur, that context including any other phrases in the Act which may throw light on the sense in which the makers

of the Act used the words in dispute.’”

57. At page 163 Denham J. went on to quote from Halsbury:

“Halsbury’s Laws of England (4th ed.) (Vol. 44) states at paras. 863 and 864 respectively:-

‘Primary meaning to be followed. If there is nothing to modify, alter or qualify the language which a statute contains, the

words and sentences must be construed in their ordinary and natural meaning.

Speculation as to Parliament’s intention is not permissible. If the result of the interpretation of a statute according to its

primary meaning is not what the legislature intended, it is for the legislature to amend the statute construed rather

than for the courts to attempt the necessary amendment by investing plain language with some other than its natural

meaning to produce a result which it is thought the legislature must have intended.’

The correct conclusion to be drawn is that the plain language of the Act must not be extended beyond its natural meaning so

as to supply omissions or remedy defects. The court should neither misconstrue words so as to amend defects in the

legislation nor legislate to fill gaps left by the legislature…”

58. It is notable that both Blayney J. and Denham J. point out that the words used in a statute are to be interpreted in the context in

which they occur. It appears to me that this contextual approach is of considerable assistance in the present case. In the earlier part

of the 1956 Act there are a series of sections (sections 5 to 12) which deal with the tenure of office of civil servants, their retirement

(including, in the original form of the Act, the provision that female civil servants had to retire on marriage) and related provisions. At

section 13 the Act turns to a different subject matter. While the 1956 Act is not formally divided into Parts as is the case in many

statutes, it is clear that sections 13 to 16 stand together in a coherent and interrelated scheme which deals with general discipline in

the Civil Service. Section 13 provides for the sanction of suspension where grave misconduct or grave irregularity appear to have

occurred, where it seems that the public interest might be prejudiced, or where a charge against a civil servant is being investigated.

Section 14 deals in considerable detail with the remuneration of a civil servant who is under suspension. Section 15 goes on to set

out, again in detail, the disciplinary measures that can be taken against a civil servant who has been guilty of misconduct,

irregularity, neglect or unsatisfactory behaviour in relation to his official duties. Prominent among the graded penalties which may be

imposed on the defaulting civil servant is a reduction of the rate of remuneration of the civil servant concerned. These three sections,

therefore, deal with the situation where a civil servant is in default of his or her duty. In this statutory context, it seems to me, the

legislature goes on to provide for what might be described as the ultimate default – the situation where the civil servant simply fails

to come to work at all. In that case the sanction is the ultimate one of complete deprivation of remuneration.

59. It is the duty of the court to construe section 16 in the light of the plain meaning of the words used and also in the contextual

light of the surrounding provisions of the statute. Taking this approach my view is that “absence from duty” bears the literal meaning,

as held by the learned trial judge, of physical absence from the place of work.

60. I am fortified in this view by another factor which was put forward by counsel for the applicants. If a partial withdrawal from work

duties can constitute “absence from duty” the question must arise as to what degree of withdrawal from duties is required to trigger

the mandatory withdrawal of all remuneration. The respondents describe the applicants as having refused to perform “core duties”,

and no doubt the duties in question were important duties. In future cases, however, the question as to whether particular duties

are, or are not, core duties would be bound to arise, giving rise to what Mr Cush describes as “grey areas”. Section 16 does not

permit any partial withdrawal of remuneration. If the respondents interpretation is correct partial failure to perform duties where these

are held to be (somewhat ill-defined) core duties must always result in entire withdrawal of remuneration. It seems to me unlikely that

this can have been the intention of the legislature.

61. The learned trial judge suggested that where a civil servant decided that he or she would not perform certain duties the

respondents’ remedy would fall under section 15 as neglect of official duties. Both in this court and in the court below it was

submitted by the respondents that both the applicants and their trade union would certainly object to their action being described as

grave misconduct or in the other terms used in section 15, and that the use of sections 13 to 15 would be totally inappropriate in the

context of an industrial dispute. In this I believe the respondents are perfectly correct. I would suggest, however, that these

strictures apply equally to section 16.

62. In my view sections 13 to 16 of the 1956 Act were intended by the Oireachtas to deal with matters of discipline concerning

individual civil servants. The Oireachtas has through other legislation provided a framework for the resolution of industrial disputes and

has established bodies such as the Labour Relations Commission, the Labour Court and other specialist negotiation and arbitration

bodies to this end. These means are available to the applicants and the respondents as a means of resolving their dispute.

63. I am in agreement with the learned trial judge in holding that the partial withdrawal from work duties does not constitute

unauthorised absence from duty under section 16. I am also in agreement with her that the question of whether the removal from the

payroll was carried out in breach of natural justice and fair procedures does not arise and nor does the issue as to whether the

applicants were in fact suspended.

64.I will dismiss the appeal and affirm the orders made by the learned trial judge.