The Gazette 1983

GAZETTE

JULY/AUGUST

the same date to allow a designated Medical Practitioner to take a specimen of his blood, or, at his option, to provide a specimen of his urine, contrary to Section 13(3) of the same Act. Both Summonses stated that the date of Hearing would be 25 September 1979, but were not served until 10 October 1979. The Summonses as served had been altered by the insertion in both, of the words "Redated 10/10/79" in place of the previous date of issue "13 July 1979", and the date for the Hearing "25 September 1979" was crossed out and was replaced by "27 November 1979". Both alterations had been initialled by the Peace Commissioner who had issued the Summonses. When the Summonses thus altered came on for Hearing in the District Court on 27 November 1979 both Parties were represented and the Summonses were adjourned by Consent. Following a number of subsequent adjournments the Hearing eventually took place and was again adjourned to a later date at the end of the prosecution's evidence for legal argument. The only legal submission made on behalf of the Defendant was that the Summonses as served were invalid and that as a result each prosecution was rendered void. Held by the Supreme Court on Appeal from the decision of the High Court on a consultative case stated per Gannon J. [19811 ILRM 465 that the procedure adopted in regard to the Summonses even if it could be said to be defective, could not be relied on as a grounds of Defence. The amended Summonses were clearly served within six months of the making of the complaint, and even if they had breached a procedural requirement of the District Court Rules, that breach would have been cured when the Defendant appeared in the District Court on the day specified in the Summonses for the Hearing. The Court held further that a Summons is only a written command issued to a Defendant for the purpose of getting him to attend Court on a specified date to answer a specified complaint. If he responds to that command by appearing in Court on the specified date and by answering the Summons when it is called in Court, he cannot be heard to say that he was not properly summoned if the complaint set out in the Summons is a valid one. This Case was distinguished from the decision of the Supreme Court in D.P.P. v. Gill (20 December 1979 unreported). In that case valid Summonses had been served on the Defendant. On the date specified for Hearing there was an appearance by the Defendant's Solicitor but no appearance on behalf of the D.P.P. In the absence of a District Court Clerk as a result of Industrial Action the District Justice held that he could make no Order on the Defendant's application to have the Summonses struck out. The Summonses subsequently lapsed for want of an

alternative date for the Hearing thereof, and the fresh Summonses issued by the D.P.P. were held to be good. Director of Public Prosecutions v. Stuart Clein. Supreme Court (per Henchy J. Nem. Diss.) 26 October 1982 — unreported. Padraic Dillon NATURAL JUSTICE — Purported dismissal of Trade Union Official by Executive invalid as members of executive affected by dis- missal and therefore not in accord- ance with Rules of Natural Justice. On the merger of two unions in 1966, the Defendant was made assistant joint General Secretary (Financial) of the First Defendant. Provision was also made for the election, from the general member- ship, of three other full time positions. The Executive Council, made up of a General President, a Vice President and Elected Members together with full-time officials who were not entitled to vote, had over-all control of union affairs and power to remove all union officials. The ordinary administrative affairs of the union were delegated to a resident executive which met more frequently and was made up of the same personnel. The rules of the union also contained detailed provisions regarding election of officers and full-time officials and Rule 22 laid down procedure for discipline and subsequent dismissal of officers of the Executive Council or resident executive for neglect of duty or bringing the Union into disrepute. The present action followed two previous unsuccessful attempts to remove the Defendant by the General President and some members of the Resident Executive and Executive Council. In the High Court in the original action of which this was an Appeal, it was held that the Defantant's dismissal had been unfair and contrary to the principals of natural justice. In 1975 the Defandant and Mr. L. O'Neill were elected Joint General Secre- taries of the Union. The Defendant had special responsibility for financial affairs. On re-election in 1979 the Defendant's position as General Secretary (Financial) became permanent as provided in the Rules. Mr. O'Neill failed to be re-elected, his Assistant Secretary, Mr. Moneley being elected in his place. Mr. Fullerton was re-elected General President. The Rules of the Union prevented Mr. O'Neill from taking up the post of Assistant General Secretary, vacated by the election of Mr. Moneley because of his age. In January 1980 the Executive Council appointed Mr.O'Neill "Acting Assistant General Secretary" an appointment opposed at that time, on technical grounds by the Defendant. Subsequently the Defendant as

General Secretary (Financial) failed to pay Mr. O'Neill the salary appropriate to the post of Assistant General Secretary as a result of which, a meeting of the Executive Council fined him and directed him to make the payment. The Defendant did not follow this direction and another meeting of the General Executive, not attended by the Defendant, suspended him and made twelve charges against him. The Defendant made written reply to the charges when notified of them and attended a subsequent meeting to discuss his possible dismissal. At this meeting he was allowed to make further explanation but was obliged to withdraw having done so and before a vote was taken on his dismissal. Despite the fact that Mr. O'Neill and Mr. Moneley were persons directly affected and responsible for some of the twelve charges made against the Defendant, they were allowed to remain. This meeting was resumed at a later date when the Defendant was again forced to withdraw and again Mr. O'Neill and Mr. Moneley remained for discussion prior to voting. On a vote, seven of the twelve charges were proven and in a secret ballot, a majority voted for the Defendant's dismissal, the subject matter of these pro- ceedings. HELD: Having regard to the terms of his appointment by the rules of the union the Defendant was clearly an officer and as the Executive Council were exercising a quasi- judicial function they must therefore observe the Rules of natural justice, be impartial and not affected by their own decisions. Clearly, these criteria were not met and this was demonstrated by reference to four of the twelve charges which led to the dismissal. 1. Failure to pay Mr. O'Neill's salary and expenses as Assistant General Secretary. Mr. O'Neill was not requested to leave the meeting at the same time as the Defendant and there- fore, his contribution in the absence of the Defendant allowed him to unfairly influence the members of the Council. 2. Failure to pay larger affiliation fees to the Irish Congress of Trade Unions than Union membership warranted. Such larger payment would have entitled Mr. Fullerton, the General President and Chairman of the meeting to an ICTU Executive Council seat and was clearly motivated by this desire. Notwithstanding the Defendant's expulsion from the meeting, Mr. Fullerton should not have acted Prosecutor in a matter which affected his own personal position. 3. Failure to pay Mr. P. O'Neill, another member of the Executive Council, expenses, due to the fact that he had failed to discharge arrears due to the Union. Again Mr. P. O'Neill remained

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