Revoking of allowances to VEC chiefs unlawful

MacDonncha & Anor -v- Minister for Education and Skills & Ors

High Court
Judgment was delivered on May 29th, 2013 by Mr Justice Gerard Hogan

Judgment
The Minister for Education did not have the power to revoke allowances to VEC chief executives and the revocation of those allowances was unlawful under Section 15 (6) of the Vocational Education Act 2001.

Background
Seosamh MacDonncha, chief executive of Co Galway VEC and Dr Katie Sweeney, chief executive of Co Mayo VEC, were statutory officers whose conditions were governed by the terms of the Vocational Educational Acts 1931-2001.

Restructuring of the VEC sector was planned by the Government and new legislation, the Educational and Training Boards Act 2012, was enacted in May this year, though not commenced. When it is commenced, the 33 VECs will be abolished and replaced with 16 education and training boards.

As part of planning toward the changes, the Minister for Education issued a circular outlining how the appointments to the new positions of chief executive in the boards would be chosen; by seniority and preference. Mr MacDonncha was assigned to the Mayo, Sligo and Leitrim board, not his first choice, and Dr Sweeney was placed on a panel to await a position. Both parties were unhappy with this.

Separately, in 2010, the Minister abolished the role of transport liaison officer which had been part of the chief executives’ responsibility and which attracted an annual allowance of around €12,000. This ceased to all VEC chief executives in June 2012.

The Labour Court considered the issue of the allowances and recommended that recipients should accept an offer of compensation from the department for their loss. The applicants applied to the High Court for relief. The issues to be addressed included whether the Department of Education had complied with the terms of the Croke Park Agreement when it organised the re-deployment of chief executives and whether that agreement gave rise to enforceable legal rights, as well as if the termination of the allowance was lawful.

Decision
Mr Justice Hogan said the State was grappling with an economic crisis of "almost unparalleled severity" and has "felt itself obliged" to examine the "continued utility and desirability of almost all items of public expenditure". It was not for the courts to question or review "the general wisdom of the policy of fiscal consolidation which the executive and legislative branches have pursued over the last five years". "But what the courts cannot do is to turn a blind eye to ultra vires executive and administrative action," he said.

He noted that the applicants had “already stoically and patriotically accepted the not inconsiderable reductions in their pay in the national interest”.

He highlighted Section 15(6) of the Vocational Education Committee (Amendment) Act 2001 and said it "unambiguously" assigned the role of determining the terms and conditions of the chief executives to the local VECs. "This inevitably includes all decisions regarding any variations concerning the conditions of employment, including the termination of allowances," he said.

But there had been no evidence that the VECs had decided on the allowance cut and the Minister had. “But … the Minister has absolutely no role in terminating the allowances or otherwise varying the terms and conditions of employment of the CEOs,” he said. “It is thus plain that the purported termination of the allowances by the Minister was unlawful.”

Ercus Stewart SC instructed by Helena Boylan & Co for the plaintiffs; Nuala Butler SC instructed by the Chief State Solicitor's Office for the respondents.

Full judgment at courts.ie