Judgment: 2008-02-08 · Court archive

High Court rejects workers’ bid for strike-period wages and pension restoration

The court said the applicants were entitled to pay for the short period after their unlawful removal from the payroll and before they went on strike, but dismissed their application for relief covering the strike period.

High Court · [2008] IEHC 95

Who, what, where, when and why

Who

See the report below for the parties involved.

What

The court said the applicants were entitled to pay for the short period after their unlawful removal from the payroll and before they went on strike, but dismissed their application for relief covering the strike period.

Where

Places mentioned in the report

  • Clonakilty
When

Judgment:

Why

Reasons reported in the judgment

The High Court dismissed a judicial review application by civil servants seeking wages and restored pension entitlements for a period when they were on strike and unavailable for work. It found they were entitled to pay for the interval between their unlawful removal from the payroll and the start of the strike, but said that interval was only a few hours to a few days in most cases.

The High Court dismissed a judicial review application by civil servants seeking wages and restored pension entitlements for a period when they were on strike and unavailable for work. It found they were entitled to pay for the interval between their unlawful removal from the payroll and the start of the strike, but said that interval was only a few hours to a few days in most cases.

The case arose from an industrial dispute between the Department of Agriculture and Food and the Civil and Public Service Union over promotional and grading structures, among other matters. Staff at the department’s Clonakilty office took limited industrial action in 2003, attending work but declining some telephone, fax and counter duties. The department warned that workers who did not resume normal duties would be removed from the payroll under section 16 of the Civil Service Regulation Act 1956.

The first 14 applicants had earlier succeeded in challenging their removal. The High Court and Supreme Court held in *Fuller No. 1* that a partial withdrawal from duties was not “absence from duty” under section 16, which referred to physical absence from the workplace. The later dispute concerned whether that ruling entitled the applicants to wages and pension entitlements for the subsequent period. The 15th to 260th applicants had not been parties to the earlier case. The judgment said 75 did not receive the relevant letter and were not removed from the payroll; their claims were discontinued.

The applicants argued that the earlier ruling made the payroll removals unlawful and that they should receive the entitlements withheld as a result. They also contended that the respondents could not rely on the strike as a reason to withhold payment because that argument had not been advanced in the earlier proceedings. The court rejected their issue-estoppel argument: the earlier case had decided whether the removals were lawful, not whether wages and pension entitlements were due for the later period. It also found that raising the present issue was not an abuse of process and allowed the respondents to argue that strike-related unavailability defeated entitlement to pay.

The respondents relied on the principle of “no work, no pay”, arguing that the applicants had gone on strike and could have remained available for work while challenging the removals. The court found the strike was an escalation of a wider dispute involving issues beyond local grading structures. It rejected the argument that invalidating the payroll decision meant all later consequences, including strike-period losses, had to be reversed.

The judge concluded that employees who make themselves unavailable for work by striking are not entitled to wages or pension entitlements for that period, even if their grievance is later upheld. The court declined the relief sought and dismissed the proceedings.

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