The Gazette 1980

GAZETTE

JULY-AUGUST

1980

18 August 1972 stating that neither of the Plaintiffs should be allowed to reckon the O & M allowance paid for the purpose of determining his entry point to the senior executive officer's scale. A request to have the ruling reversed was refused and by letter dated 12 September 1972 the Board was informed of the Minister's confirmation of the previous decision. The Chief Executive Officer, acting on the directions given to him in the Department's letters, reduced the Plaintiffs' remuneration by calculating it in accordance with another sub-paragraph of Paragraph 14 of the Department's Circular. The Plaintiffs sought a declaration that the Department was wrong in its view that the O & M allowance should not be taken into account in ascertaining the Plaintiffs' remuneration at the time of their promotion. Held (per Costello J.): (1) that the Plaintiffs rights, and, in particular, the right to remuneration, were governed by statute, and they were only entitled under Section 14(4) of the Health Act 1970 to such remuneration and allowance as the Chief Executive Officer from time to time determined.In making his determination the Chief Executive Officer must act in accordance with the directions of the Minister. The Minister was acting "intra vires" when he made the direction of 18 August 1972 and the Chief Executive Officer was bound, as a matter of law, to comply with it whatever nomenclature applied to the office the Plaintiffs then held; (2) that the Plaintiffs were legally entitled to the remuneration they actually received from the date of appointment on 3 March 1972 to 18 August 1972 and no claim for overpayment legally arose. The practice that had grown in the interpretation of the Minister's direction, where an officer of a Health Board had been in receipt of an allowance for a year or more, that such an allowance was to be included in calculating the "existing pay", was not binding where such an officer had received such allowance for a period less than a year, as was the case here. Colm Murphy and Brendan Garvey and The Eastern Health Board and The Minister for Health and Social Welfare - High Court (per Costello J.) - 22 June 1979 - Unreported.

(3) There shall be paid by a health Board to an officer or servant appointed under this Section such remuneration and allowance as the Chief Executive Officer from time to time determines. (4) (a) In making an appointment of an officer or servant the Chief Executive Officer shall act in accordance with the directions of the Minister but no such direction shall be in conflict with Section 15. (b) In making a determination under sub-section (3) or (4) the Chief Executive Officer shall act in accordance with the directions of the Minister and shall have regard to any arrangements in operation for conciliation and arbitration for persons affected by the determination". In a Circular (Number 10/71) dated 29 March 1971, the Minister gave general directions in relation to the appointment and conditions of service of officers and servants of Health Boards. Paragraph 14 of this Circular dealt with "Starting Pay on Promotion" with (inter alia) the following provisions:- (i) "where the same salary scale applies to the officer's existing office and the office to which he has been newly appointed he shall remain on the same point of the scale and may retain his existing incremental date" . . . (iv) "subject to sub-paragraph (1) above the minimum of the new salary scale is less than existing pay the officer may enter the new scale at the point nearest but not below existing pay plus one increment". On 3 March 1972 the Chief Executive Officer, in determining the remuneration payable to the Plaintiffs, took into account the O & M allowance which each had received and decided that their cases fell within the ambit of Paragraph 14 (4) (above). However, on 5 April 1972, the personnel department of the Board wrote to the Secretary of the Department of Health referring to a number of appointments and 'seeking approval for the decision in relation to the remuneration payable to the Plaintiffs. Following correspondence between the Board and the Department of Health, the Department wrote to the Board on

RECENT IRISH CASES Summaries of judgments prepared by Eric Brunker, Franklin J. O'Sullivan, Michael Staines, S W. Riordan, and edited by Michael V. O'Mahony. CONTRACT OF EMPLOYMENT The Basis of computation of remuneration of Health Board Officers is that which the Board determines in accordance with the directions of the Minister: — In making such computation the inclusion of allowances over and above basic salary is discretionary — Section 14 of the Health Act 1970. The Plaintiffs were senior executive officers in the Eastern Health Board. Prior to his promotion to this position, the first Plaintiff was employed as a section officer with the Board and on 21 September 1971 he was assigned to Organization & Method (O & M) duties and he became entitled to an O & M allowance; on 3 March 1972, less than 12 months after the commencement of O & M allowance, he was appointed a senior executive officer in a permanent capacity. Likewise, prior to his promotion to this position, the second Plaintiff had been assigned to O & M duties on 15 July 1971, but he was appointed in a permanent capacity as a senior executive officer also on 3 March 1972. The appointment of the Plaintiffs was made by the Chief Executive Officer of the Board under the provisions of Section 14 of the Health Act 1970. The relevant sub- sections of Section 14 are as follows :- "(1) In addition to the Chief Executive Officer, there shall be appointed to a Health Board such and so many other officers and such and so many servants as the Board from time to time determines in accordance with the directions of the Minister (for Health and Social Welfare). (2) an officer or servant of a Health Board appointed under this Section shall hold office or employment on such terms and conditions and shall perform such duties as the Chief Executive Officer from time to time determines.