The Gazette 1985

MARCH 1985

GAZETTE

Court followed Finlay P. in holding that there was no evidential basis for suggesting that the Plaintiff would be exposed to physical dangers or the risk of an unfair trial by reasons of conditions in Northern Ireland. 3. The Plaintiff claimed that Part III was in conflict with a generally recognised principle of international law, in that it did not contain a provision similar to Section 11(2) of the Extradition Act, which only referred to Part II of that Act. Accordingly, Part III was therefore invalid in regard to Article 29 Section 3 of the Constitution. Section 11(2) of Part II of the Act is concerned with circumstances where a request for extradition for an ordinary criminal offence has been made for the purpose of prosecuting or punishing a person on account of his race, religion, nationality or political opinion. The Supreme Court held, following Finlay P., that even if this exception to extradition was a generally recognised principle of international law, and even assuming that Article 29 of the Constitution may be used to test the validity of Part III, (without deciding either point) there we re n o g r o u n ds (let a l o ne substantial grounds) for believing that the extradition of the Plaintiff was for the purpose of prosecuting him for any of the reasons set out in the exception. 4. The Plaintiff claimed that the granting of an extradition Order should be conditional on a finding by the District Justice that there was a prima facie case against the person to be extradited, in regard to the offence charged on the warrant. Finlay P. had not been satisfied that this requirement was a generally recognised principle of International Law, and the Supreme Court accepted this view. The Supreme Court held that it was sufficient that someone duly authorised to do so averred in good faith that a prima facie case existed. They went on to point out, however, that if it were to transpire that the charge in the wa r r a nt was t r ump ed up, or insubstantial, or brought for ulterior purposes, the good faith which is the prerequisite for the operation of extradition would be absent, and extradition a r r a n g eme n ts wo u ld break down. 5. The Plaintiff submitted that the e n d o r s e m e nt of t he N o r t h e rn Ireland Warrant by the Commis- sioner of the Gardai constituted an administration of justice otherwise than by the Courts, and was therefore inconsistent with Article

34 Section 1 of the Constitution. Again, the Supreme Court followed F i n l a y P . ' s r e a s o n i n g . T h e endorsement of the warrant by the Commissioner was merely to enable it to be executed in the State by a member of the Ga r da Siochana. The endorsement itself could not lead to extradition. Extradition could only occur when a District Justice made the Order. The function of the C o mm i s s i o n er wa s, t h e r e f o r e, merely procedural, and in no sense judicial. 6. The Plaintiff had claimed that his personal rights under Article 40 Sub- section 3 of the Constitution were not secured due to the absence from Part III of a provision requiring the Northern Ireland authority to bring the Plaintiff b e f o re a judicial authority for trial in accordance with law. Finlay P. had heard expert evidence on the matter, and had held that under Northern Ireland law, there was a legal obligation to bring an extradited person f r om the Republic before a Magistrate's Court within forty-eight hours of him being received into custody. On the basis of this, he held that the presumption of f u n d a m e n t a l f a i r n e s s of procedures was not rebutted. This presumption exists because of the reciprocity which is necessarily implicit in extradition legislation. The Supreme Court also accepted Finlay P.'s view. Accordingly, the S u p r eme C o u rt H E LD that none of the grounds put forward by the Plaintiff supported his submission that Part III of the Act was invalid, having regard to the provisions of the Constitution, and dismissed the appeal. Seamus Shannon -v- Ireland and the Attorney General - The Supreme Court (per Henchy J.. Nem Diss). 16 November, 1984. Michael Staines ADMINISTRATIVE LAW A decision of the Employment Appeals Tribunal dismissing a claim by an employee for redress under the Unfair Dismissals Act, 1977, held to be a nullity. S. 15(3) of the Unfair Dismissals Act, 1977 (the Act) states as follows: "Wh e re proceedings for damages at c ommon law for wrongful dismissal are initiated by or on behalf of an employee, the employee shall not be entitled to redress under this Act in respect of the dismissal to which the proceedings relate". The claimant, James Ferris, having reached the rank of Industrial Branch Inspector in 1983 with the Society and vii

earning an annual income of about £50,000, mainly in commission, was informed by the Committee of Manage- ment of the Society that he was being suspended from his duties, with basic pay of £35 a week, pending the outcome of investigations. In June, 1983, he issued a High Court Plenary Summo ns in which he sought, inter alia, to have the purported suspension declared invalid. The summons also claimed "damages for breach of contract, wrongful dismissal and breach of the plaintiffs right to natural justice". As appeared from the statement of claim delivered on 8 July, 1983, and from the correspondence passing between the Solicitors, and from Affidavits filed in the proceedings, the expression "wrongful dismissal" was an error (apparently a typist's error) for "wrongful suspension". In April, 1984, the Master of the High Court gave liberty to the claimant to substitute "suspension" for dismissal. The Society resolved to dismiss the Claimant on 10 July, 1983 and the Claimant responded by serving a notice of appeal to the Employment Appeals Tribunal under the Act seeking redress for alleged unfair dismissal. It came on for hearing in March, 1984 when the High Court proceedings, based on alleged wrongful suspension, were then still pending. When the case was opened before the Tribunal, it was submitted on behalf of the Society that the Tribunal had no jurisdiction to rule on the merits of the case, basing its submission on s. 15(3) of the Act. The Tribunal held that because of the use of the expression "wrongful dismissal" in the plenary summons, s. 15(3) applied and, accordingly, it ruled that the claimant was not entitled to redress under the Act. The claimant obtained a conditional order of mandamus in the High Court to compel the Tribunal to enter on a hearing on the merits of his statutory claim. Subsequently, the cause shown was allowed and the conditional order was discharged. The claimant appealed. H E LD (per Henchy J. with He d e rman J. concurring): (1) The point should be approached on the basis of the extent of the jurisdiction that was given to the Tribunal by S .15(3). What the Tribunal did was not simply to decline jurisdiction to decide the claimant's case on the merits, but also to seek to exercise a jurisdiction to dismiss it under s. 15(3) when the condition precedent for the exercise of that jurisdiction did not exist, that was to say, when the initiation of a claim for damages at c ommon law for wrongful dismissal had not been proved. (2) The Tribunal no less acts ultra vires or in excess of its jurisdiction when it seeks to rule out a case under s. 15(3) when no proceedings for damages for wrongful dismissal are initiated by the claimant than when it purports to exercise that