AN CHÚIRT UACHTARACH

THE SUPREME COURT
O‘Flaherty J.,
Keane J.,
Barron J.,
(267/98)

BETWEEN:
DECLAN McCALL
Appellant
.V.

AN POST
Respondent

Judgment (ex-tempore) delivered on the 4th day of December, 1998, by O’Flaherty J.

The Court has heard very helpful submissions on both sides. The Court has reached a conclusion on the matter and therefore does not feel it necessary to reserve judgment.

This is a case stated by His Honour Judge Raymond Groarke pursuant to s. 16 of the Courts of Justice Act, 1947, and in pursuance of an application by counsel for the appellant for the determination of questions of law by the Supreme Court.

The questions are framed as follows: - 

“1. Does the application of Article 3.3. of  the respondent’s grievance and dispute procedures which are contained in an agreement in writing made between the Communications Workers Union (CWU) and An Post in the month of February, 1990 (and known as the McNeill procedures)

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preclude this Court from hearing evidence of written reprimands for  serious offences that are more than two and four years old respectively when deciding whether the dismissal of the appellant was unfair pursuant to the provisions of s. 6(1) of the Unfair Dismissals Act, 1977, as amended by the Unfair Dismissals (Amendment) Act, 1993.

2. If the answer to the above question is in the affirmative, was the respondent’s decision to dismiss the appellant on the 11th of November, 1994, unfair within the terms of s.6(1) of the said Unfair Dismissals Acts, 1977 – 1993, insofar as the respondent’s board had regard for material that ought not to been considered by it and was excluded by Article 3.3 of the Grievance and Dispute Procedures....”

It was accepted in the course of the hearing before the learned Circuit Court judge, and also as before us, that the document described as Procedures for Dealing with Grievances and Disputes and entered into between the union and An Post in June, 1990, is indeed part of the terms of employment of the workers with An Post. It should be construed however, in my belief, in a sensible way as something that employers and workers have decided together, as set forth in the preamble to it, and that its objective is to make sure that all grievances, disputes and disciplinary matters, however arising, are dealt with promptly and fairly. That is what the two parties set out to do.

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Article 1.4 recites:- 

“1.4 The principal rights which should be safeguarded when dealing with disciplinary cases internally are,
- the right to union assistance in presenting the case;
- the right to a copy of any written complaint against the employee
- the right to be advised of the outcome of a complaint;
- a right of appeal
- the right to have a disciplinary record purged after a specified period of satisfactory service;”

Then comes Article 3.3 which states:- 

“3.3 Written reprimands will remain on an employee’s records for two years, serious offences for four years and thereafter all relevant papers will be destroyed.”  

The learned Circuit Court judge went on to describe the history of the matter and recounts that the following facts were agreed by the parties:- 

“1. The appellant was a postman employed by An Post and commenced employment with the former Department of Posts and Telegraphs on the 9th of August, 1976.

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2.	The appellant was a member of the C.W.U.

3.	The respondent accepted that the said grievance and disputes procedures formed part of the appellant’s conditions of service.
4.	The appellant was dismissed by An Post on the 11th day of November, 1994, on the grounds of continued unsatisfactory conduct and an act of insubordination in March, 1994.
5.	The Appellant instituted proceedings against An Post pursuant to the Unfair Dismissals Act, 1977, as amended.
6.	The said unfair dismissal application came on for hearing on the 9th of October, 1996, and the appellant was represented by Mr. Peter Finlay, junior counsel, instructed by Daly, Lynch and Crowe, solicitors. The respondent was represented by Mr. Roddy Horan, junior counsel, instructed by Hugh O’Reilly, solicitor for An Post.
7.	On a preliminary application by Mr. Finlay on behalf of the appellant, the tribunal agreed to exclude from consideration that part of the appellant’s disciplinary record predating 1990 and relied on Article 3.3 of the said grievance and dispute procedures in reaching this conclusion.”

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That was challenged in judicial review proceedings. The challenge was to the decision of the Employment Appeals Tribunal and Peter Kelly J. made an order of 22nd July, 1996, setting forth that the matter now could go back for re-hearing but before a differently constituted tribunal.  What was obviously achieved by that was that the decision to exclude the man’s previous record was vacated. Mr. Finlay tells us that his client was really only a notice party to that application, and so had no part to play in the compromise that was reached. In any event, the matter was then duly re-heard on 27th May, 1997, and the Employment Appeals Tribunal in its written determination of  10th  September, 1997, held that the appellant had not been unfairly dismissed and in the course of that hearing, the entitlement of the employers to take into account his record from 1981 on was upheld. Then the matter was appealed to the Circuit Court and, in the course of that hearing, the problem has been posed for us to resolve.

I have no doubt that the part of Article 1.4 which says “the right to have a disciplinary record purged after a specified period of satisfactory service governs what is contained in Article 3.3. The employee must have a clear period of four years before he can be entitled to have his record cleared. That is the essential stance that the employers took in examining the matter and that is the case advanced on behalf of An Post here.

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Mr. Finlay in the course of his very careful submission says, no, that really Article 1.4 is by way of preamble and that Article 3.3 should stand alone and that what it means is that after four years from a serious offence then, as it says, all the relevant papers will be destroyed. I am unable to accept that submission. I think it would not make any sense. The obligation on the man is to preserve a clean sheet for four years, once he does that then of course there is no doubt that the record should be expunged. Mr. Finlay argues, in the alternative, that if you read Article 3.3 that perhaps a reasonable time is what should be allowed but I do not think so. I think that the matter is clearly governed by Article 1.4 and that when it refers to a specified period of satisfactory service it means to refer to the period contained in Article 3.3.

I think the matter is further confirmed by a section that was not referred to in the Circuit Court. It is Article 3.4.2 which reads:- 

“A first serious offence, with or without penalty, may be accompanied by a warning of dismissal. A second serious offence occurring within the four year reckonable period will be accompanied by a warning of dismissal. There will, however, be a final warning before that penalty is imposed.”

That sets forth that if the person commits a second offence in the four years then he is in real trouble because he is facing dismissal. There is a

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sentence, however, which is designed to give a measure of discretion to the employers, and to give everyone a breathing space, and that, too, is contained in the article.  That is what one would expect in such a document as this, that people should not bind themselves hand and foot.

So accordingly, I would answer the first question posed, no, and as regards the second question, that does not arise.