Topic 2: Case Law Flashcards
Murtagh Properties Ltd v Cleary [1972] IR 330
Art 40.3: Right to earn a livinghood (right to work)
Did the trade union’s objection to the employment of women, resulting in a picket of the public house that employed female bar waitresses, infringe the bar waitresses’ right to earn a livelihood under the Constitution of Ireland? YES
“The State shall, in particular direct its policy towards securing…that the citizens (all of whom, men and women equally, have the right to an adequate means of livelihood) may through their occupations find the means of making reasonable provisions for their domestic needs.”
Parsons v Kavanagh [1990] ILRM 560
Art 40.3: Right to earn a livinghood (right to work)
Can a person whose livelihood has been significantly affected by an unlicensed passenger transport service operating against their licensed service seek an injunction to restrain the operation of the unlicensed service under the provisions of the Road Transport Acts, 1932 and 1933, and Article 40 of the Constitution of Ireland, 1937? YES
Meskell v CIE [1973] IR 121
Art 40.6.1: Freedom of expression, assembly & association (and corollary right to disassociate)
Does a union’s requirement for a workman to be a member of the union at all times violate the right of dissociation guaranteed by the Constitution of Ireland, 1937?
The court held that citizens had the right to abstain from joining associations and unions, and that coercing them to abandon such right was a violation of the fundamental law of the State and unlawful.
Glover v BLN [1973] IR 388
Art 40.3: Constitutional guarantee of fair procedures in the contract of employment
– Walsh J: “[t]he obligation to give a fair hearing to the guilty is just as great as the obligation to give a fair hearing to the innocent”
State (Gleeson) v Minister of Defence [1976] IR 280
Art 40.3: Constitutional guarantee of fair procedures in the contract of employment
rules of natural justice must be adhered to when dismissing an employees
Was a private in the Irish army’s discharge invalid because he was not given notice of the charges against him and had no opportunity to defend himself before being discharged?
The court held that regulations required a man’s discharge to be clearly desirable in the interests of the service, and in whom no other reason for discharge was applicable, and that the prosecutor was entitled to reasonable notice and an opportunity to defend himself. Moreover, the court discussed the rule of natural justice that applies when a person holds an office for a fixed period.
Lyons v M.F. Kent & Co. (International) Ltd. [1996] ELR 103.
Terms Implied by Statute: Minimum Notice
Plaintiff submitted that he was entitled to 12 months notice on the basis of his remuneration and responsibilities within the company.
Also on the grounds of a so-called “general hiring for one year”.
Defendant argued the absence of any express agreement.
Three ways to determine length of service:
1. reference to custom or trade – defendant’s argued that there was no evidence of such;
2. “general hiring for one year” – def. argued that there were no modern authorities to support it;
3. all circumstances had to be taken into account as to what was a reasonable period – def. argued that 5 years of service warranted notice of 2 weeks as required under the legislation & notice of a year was considered too excessive.
Ryanair v Downey [2006] ELR 347
unlawful deductions of wage
The Employment Appeals Tribunal held that the fact that a clause in the employee’s contract provided for a deduction did not of itself justify the deduction. For the deduction to be lawful, the employer must comply with the relevant provisions of subs.
Shirlaw v Southern Foundries (1926) Ltd. [1939] 2 K.B. 206 at 227.
terms implied by facts
Term must be: (1) reasonable & equitable; (2) necessary to give business efficacy to the contract; (3) must be so obvious it ‘goes without saying’; (4) must be capable of clear expression; (5) must not contradict any express term of the contract.
Insufficient for the term to be reasonable.
Courts will take into account the subsequent conduct of the parties.
Berber v Dunnes Stores [2009] ELR 61, per Finnegan J.:
implied duty of loyalty and fidelity
Changing the position and place of work in his role, he was suffering from Crohn’s disease.
Wanted to be transferred back to original position after 12 months
Was not made store manager as he thought that was part of the deal
He was suspended from the role as he refused to remain to work in new position
SC court recognised - duty of fidelity and loyalty between employer and employee, neither can behave in a way that will ruin the loyalty and fidelity
Present in all contracts unless expresses otherwise
Objective test applied to look at conduct at both of the parties - was the employers behavior reasonable?
Faccenda Chicken v Fowler [1987] 1 CH 117 per Neill LJ – necessary to consider 3 separate legal concepts:
confidentiality and good faith
Someone worked for a company and wanted to set up their own business.
While working in the company they had access to clients and other valuable info for the sector
They wanted to take this client list with them
(1) The duty of an employee during the period of his employment to act with good faith towards his employer; this duty is sometimes called the duty of fidelity.
(2) The duty of an employee not to use or disclose after his employment has ceased any confidential information which he has obtained during his employment about his employer’s affairs.
(3) The prima facie right of any person to use and to exploit for the purpose of earning his living all the skill, experience and knowledge which he has at his disposal, including skill, experience and knowledge which he has acquired in the course of previous periods of employment.
O’Reilly v Irish Press [1937] ILTR 194
confidentiality and good faith
Well established custom in journalism sector that employees were paid holiday pay
Company failed to do so as it was not express term in contracts but it was clear custom
Satisfy four requirements
- must be notorious, certain, reasonable & must be regarded as obligatory.
Imperial Group Pension Trust Ltd. v. Imperial Tobacco Co. [1990] 1 W.L.R. 589 at 597:
“the implied obligation of good faith”.
