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ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
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(1967) 3 CLR 279
1967 May 6
[TRIANTAFYLLIDES, J.]
IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION
STEPHANOS IOANNOU AND OTHERS,
Applicants,
and
THE REPUBLIC OF CYPRUS, THROUGH
THE MINISTRY OF COMMUNICATIONS
AND WORKS,
Respondent.
(Cases Nos. 87/65, 171/65).
Workmen, Public Works Department-Termination of Applicants' services-competent organ to terminate services of Applicants-Competence of Public Service Commission, under Article 125 of the Constitution-"Public officer", "public office", "public service", and "workmen. regularly employed" in Article 122 of the Constitution-Applicants at the material tune of the termination of their services, were not work men ''regularly employed" in the sense of the definition of "public service" in Article 122.
Public Officer-Meaning-Article 122 of the Constitution.
Public Officers-Workmen "regularly employed in connection with permanent works of tile Republic"-Article 122 of the Constitution-Termination of their employment-Competence-Article 124 and 125 of the constitution-Meaning of tile phrase ''workmen regularly employed etc. etc."-See, also, above under Workmen.
Public Service Commission-Articles 122, 124 and 125 of the Constitution-Competence-See above under Workmen; Public Officers.
Public Office-Meaning-Article 122 of the Constitution.
Public Service-Meaning-Article 122 of the Constitution.
In this recourse, whereby the Applicants complained against the termination of their employment as workmen of the Public Works Department, It was directed, by consent of both parties, that the issue of whether it was the Respondent Ministry or the Public Service Commission which was the competent organ to terminate their services should be heard first as a preliminary issue.
The question in dispute was whether the Applicants were regularly employed in connexion with permanent works of the Rupublic. Counsel appearing on behalf of the Applicants submitted that Applicants were employed in connection with permanent works of the Republic, in other words, the Public Works Department, and that they were employed regularly in that they had enjoyed for ten years or more the status of regular employees in accordance with the Regulations concerning the wages and conditions of employment of Government Employees.
Counsel for the Respondents contended that Applicants were not being employed in connexion with permanent works but only in connexion with temporary projects and that they were not regular employees in the sense of the definition of "public service" in Article 122 of the Constitution, notwithstanding the fact that for the purposes of the aforesaid Regulations they were considered as being regular Government Employees.
It was part of the terms of the Applicants employment that in case there would be lack of work they would be given notice to stand off work until work would be available for them once again; and there was evidence to the effect that all Applicants, at various times in the past, had been given notices to stand off and they were re-employed.
Paragraph 1 of Article 125 of the Constitution provides: "Save where other express provision is made in this Constitution. it shall be the duty of the Public Service Commission (note: Established under Article 124 of the Constitution) to make the allocation. and to appoint, confirm, emplace on the permanent or pensionable establishment, promote, transfer, retire and exercise disciplinary control over, including dismissal or removal from office of, public officers".
On the other hand Article 122 of the Constitution provides:
"For the purposes of this Chapter, unless the context otherwise requires-
'Public office' means an office in the public service; 'Public officer means the holder, whether, substantive or temporary or acting, of a public office; 'Public Service' means any service under the Republic other than. but does not include service in an office. or service by workmen except those who are regularly employed in connexion with permanent works of the Republic or."
Held, (1). In the light of the on and off nature of the employment of the Applicants and bearing duly in mind at the same time all other relevant factors, including the nature of the works in which the Applicants were employed-as it appears from the material before the Court-I am of the opinion that the Applicants were not workmen "regularly employed" in the sense of the definition of "public service" in Article 122.
(2) In my view for a workman to be "regularly employed" in the sense of the said definition, so that it would be up to the Public Service Commission, only, to decide on the termination of his services, he must be in permanent-like uninterrupted employment-more or less as the public officers proper--and not in employment which, however otherwise regular it may be, depends on the availability of work and which is being interrupted according to such availability.
(3) Depending on the particular circumstances of each case, a workman may be considered as a regular employee for other purposes by virtue of the abovementioned Regulations-which came into force long before the coming into force of the Constitution and which are entirely unconnected with a provision such as Article 122-and yet not be a regularly employed workman in the sense of the definition of "public service" in Article 122, and, on the other hand, a workman may be "regularly employed", in the sense of the said definition, even if he has not been accorded regular employee status for some reason-especially as since the 3rd January, 1963, the relevant regulation enabling the acquisition of regular employee status has been suspended by decision of the Council of Ministers.
(4) For all the above reasons, I have decided to dismiss the objection of the Applicants that the Respondent Ministry of Communications and Works could not terminate the services of the Applicants at the material time.
Held, with regard to costs.
Regarding the costs relevant to the determination of the preliminary issue which has been dealt with by this decision I have decided to make no order as to costs in view of the novelty of such issue.
Order in terms. No
order as to costs.
Case referred to:
Loizou and CYTA 4 R.S.C.C. 48, at pp. 50-51.
Decision on preliminary issue.
Decision on the preliminary issue of whether it was the Respondent Ministry or the Public Service Commission which was the competent organ to terminate the services of Applicants, in a recourse against the termination by the Respondent Ministry of Applicants' employment as workmen of the Public Works Department.
L. Clerides, for the Applicants.
M. Spanos, Counsel of the Republic, for the Respondent.
Cur. adv. vult.
The following Decision was delivered by:
TRIANTAFYLLIDES, J.: By these two Cases the several Applicants-eighteen in Case 87/65 and one in Case 171/65-proceeded against the termination, by the Respondent Ministry, of their employment as workmen of the Public Works Department.
In view of both these Cases involving common issues, they were consolidated, by consent, and an order was made for the purpose on the 19th March, 1966; since then they have been heard together.
The hearing of these Cases commenced in May 1966, before another Judge of this Court, but, in view of his absence from the Court since June 1966, it has not been possible for him to conclude such hearing. As a result, it was directed, by consent, on the 14th November, 1966, that the hearing of these Cases should commence de novo before another Judge of this Court and that all evidence already given and all exhibits already produced should be deemed to be part of the record of the new healing.
It might be said at this point that during the proceedings in 1966 five out of the eighteen Applicants in Case 87/65 (Applicants 5, 6, 10, 13 and 15) sought leave to withdraw the recourse in so far as they were concerned. Such leave was granted and the recourse to the extent to which it related to them was dismissed accordingly.
At the commencement afresh of the hearing of these Cases on the 9th January, 1967, it was directed, by consent, that the issue of whether it was the Respondent Ministry or the Public Service Commission which was the competent organ to terminate the services of the Applicants should be heard first as a preliminary issue. As a result relevant argument was heard and the Decision on such issue has been reserved until today.
It has been the submission of counsel for Applicants that the competent organ in the matter was only the Public Service Commission in the exercise of its powers under Article 125 of the Constitution.
Such powers relate to "public officers"-as defined in Article 122 of the Constitution.
Article 122 provides that "public officer" means the holder of a "public office"; and "public office" is defined as meaning an office in the "public service".
In the definition of "public service", to be found in the same Article, it is stated, inter alia, that it does not include service by workmen except those who are regularly employed in connexion with permanent works of the Republic or of certain public bodies mentioned earlier on in such definition.
It is common ground in this Case that the Applicants are workmen. It is, also, common ground that if they are workmen who were regularly employed in connexion with permanent works of the Republic then the competent organ to terminate their services would be the Public Service Commission; what is in dispute is whether they were so employed.
Counsel for Applicants has submitted that they were employed in connexion with permanent works of the Republic, in other words the Public Works Department, and that they were employed regularly, in that they had enjoyed for ten years or more the status of regular employees in accordance with the Regulations concerning the Wages and Conditions of Employment of Government Employees (see exhibit 2).
It has been the contention of counsel for Respondent that the Applicants were not being employed in connexion with permanent works, but only in connexion with temporary projects, and that they were not, either, regular employees in the sense of the definition, of "public service" in Article 122, notwithstanding the fact that for the purposes of the aforesaid Regulations they were considered as being regular Government employees.
The relevant part of the definition of "public service" in Article 122 has been considered by the Supreme Constitutional Court in the case of Loizou and CYTA (4 R.S.C.C., p. 48, at pp. 50-51).
It was held in the said Case, inter alia, that "the issue whether a particular. workman is regularly employed"-in the sense of the definition of "public service" in Article 122-"is an, issue of fact to be determined in each case on the basis of all relevant circumstances. The period of his service, the security of tenure, the nature of the duties, the view taken of the status of such workman by his employing authority, are all relevant matters to be weighed, together with other pertinent factors, in order to arrive at a proper conclusion".
I have reached the view, On the basis of all the material before me, that the Applicants were not, at the material time of' the termination of their services, "regularly employed", in the sense of the definition of "public service" in Article 122. In doing so I have mainly borne in mind the following:
The several Applicants became regular employees, for the, purposes of the aforementioned Regulations (exhibit 2), after completion, by each one of them, of six months' satisfactory service; the various dates on which each one of them became a regular employee are set out in the appropriate column of a table (see exhibit 1) which has been prepared by witness Andreas Soteriou, a Technical Assistant, attached to the Headquarters of the Public Works Department and dealing, at the time, with labour matters.
Through attaining regular employee status the Applicants became eligible for the relevant benefits provided for in the Regulations in question (regarding pay, notice of discharge, holidays, leave, medical treatment etc.).
It was part of the terms of the Applicants' employment that in case there would be lack of work they would be given notices to stand off work until work would be available for them once again; and, actually, the relevant Regulations provided that a regular employee, who had been discharged through no fault of his own, would have the right, if re-employed by Government within six months from his discharge, to resume work as a regular employee; otherwise he would have to work all over again for six months before regaining his regular status.
Accoring to the evidence of Soteriou all the Applicants, at various times in the past, had been given notices to stand off and then they were re-employed again (see at p.. 5, K-p. 6, C of his evidence on the 12th May, 1966). As he has testified, the several dates of the last employment of the Applicants appear in the appropriate column of the table exhibit 1; as it appears therefrom, and as this witness has stated in evidence (see at p. 11, H p. 12, A of his. evidence on the 12th May, 1966), some Applicants were employed even after the dates of the notices of termination of services complained of in these proceedings.
In the light of the on and off nature of the employment of the Applicants and bearing duly in mind at the same time all other revevant factors, including the nature of the works in which the Applicants were employed-as it appears from material before the Court-I am of the opinion that the Applicants were not workmen "regularly employed" in the sense of the definition of "public service" in Article 122.
In my view for a workman to be employed" in the sense of the said definition, so that it would be up to the Public Service Commission, only, to decide on the termination of his services, he must be in permanent-like uninterrrupted employment-more or less as the public officers proper-and not in employment which, however otherwise regular it may be, depends oh the availability of work and which is being interrupted according to such availability.
Depending on the particular circumstances of each case, a workman may be considered as a regular employee for other purposes by virtue of the above-mentioned Regulations-which came into force long before the coming into force of the Constitution and which are entirely unconnected with a provision such as Article 122-and yet not be a regularly employed workman in the sense of the definition of "public service" in Article 122, and, on the other hand, a workman may be regularly employed", in the sense of the said definition, even, if he has not been accorded regular, employee status for some reason-especially as since the 3rd January, 1963, the relevant regulation enabling the acquisition of regular employee status has been suspended by decision of the Council of Ministers (see exhibit 3).
For all the above reasons, I have decided to dismiss the objection of the Applicants that the Respondent Ministry of Communications and Works could not terminate the services of the Applicants at the material time.
The Case will now proceed to a hearing on the remaining issues, which are all left open, including the issue of the exact effect of what has been hitherto described as the "termination of the services" of the Applicants,
Regarding the costs relevant to the determination of the preliminary issue which has been dealt with by this Decision I have decided to make no order as to costs in view of the novelty of such issue.
Order in terms. No
order as to costs.