High Court of Ireland Decisions

You are here: BAILII >> Databases >> High Court of Ireland Decisions >> McCormack v. Minister for Agriculture [1998] IEHC 100 (24th June, 1998)
URL: http://www.bailii.org/ie/cases/IEHC/1998/100.html
Cite as: [1998] IEHC 100

[New search] [Printable RTF version] [Help]

McCormack v. Minister for Agriculture [1998] IEHC 100 (24th June, 1998)

THE HIGH COURT

(JUDICIAL REVIEW)

No. 1997 176 JR

BETWEEN

LIAM McCORMACK

APPLICANT

AND

MINISTER FOR AGRICULTURE

RESPONDENT

JUDGMENT of Mr. Justice Diarmuid B. O'Donovan delivered on the 24th day of

June 1998 .

1. By Order of the now President of the High Court, Mr. Justice F.R. Morris, dated the 14th day of May 1997, the Applicant was given leave to apply by way of application for Judicial Review for the reliefs set out in the said Order on the grounds set forth in the Applicant's statement grounding his application for Judicial Review.

2. The reliefs were:-

1. A declaration that the purported decision of the Respondent removing the Applicant from his post as Training Officer, as recorded in a letter to the Applicant dated the 10th April, 1997, is invalid and ineffective to lawfully vary the Applicant's conditions and/or contract of service.

2. A declaration that, on a true construction of the Civil Service Regulations Act, 1956, the Respondent is not entitled to unilaterally vary the Applicant's conditions of service.

3. A declaration that the Applicant is and continues to be the lawful incumbent of the post of Training Officer in the service of the Respondent pursuant to his appointment in that regard in or about the month of May 1995.

4. A declaration that the Respondent was performing a quasi-judicial function in purporting to remove the Applicant from his said post as Training Officer as recorded in the said letter of the 10th April, 1997 and required to act in accordance with the principles of natural and constitutional justice.

5. An Order of Certiorari quashing the Respondent's decision to remove the Applicant as Training Officer as embodied in the Respondent's letter dated the 10th April, 1997 to the Applicant.

6. An Order of Mandamus compelling the Respondent to restore the Applicant to his said appointment as Training Officer.

7. An injunction (if necessary, an interim injunction) restraining the Respondent, its servants and agents, from unlawfully interfering with the Applicant's tenure or from otherwise purporting to modify or vary the Applicant's conditions of service other than with the Applicant's consent.

8. An Order of Quo Warranto directed against the Respondent together with such further or other Order enjoining the Respondent from appointing any person, other than the Applicant, to the Applicant's said post as Training Officer.

9. Further and other relief.

10. Costs.

3. The following are the uncontested or agreed facts:-

1. On the 20th day of March 1970, following open competition and interview conducted by the Local Appointments Commissioners, the Applicant was appointed to a permanent and pensionable post in the Department of Agriculture as a field assistant and, in the month of January 1994, was promoted to the grade of District Superintendent in the said Department. Following the said promotion, the Applicant executed a form of acceptance thereof on the 16th March, 1994 in which he acknowledged that, if appointed to the grade of District Superintendent in the Department of Agriculture, he would be prepared to perform any duties which may assigned to him from time to time by the direction of the Minister.

2. By a circular letter dated the 15th February, 1995 addressed to each District Superintendent in the Department of Agriculture, notice was given of the re-establishment, after a break of some years, of a staff training and development unit and of an intention to appoint to that unit officers from the four main staff streams to take charge of the training programme in their area. In that letter, it was pointed out that a new District Superintendent post was being created in the training unit to assist in training of technical staff and existing District Superintendents were being invited to indicate their interest in that post. In that letter it was emphasised that, as the post in question would involve special skills and abilities in communication, it might be necessary to hold interviews for the interested officers to select the most suitable person for the post.

3. On the 21st day of February 1995, the Applicant applied for the said post by signing the said circular letter of the 15th February, 1995 and submitting the same to Ms Margaret Barrett, Assistant Principal in the Department of Agriculture.

4. In response to the said application, the Applicant was advised by letter dated 13th March, 1995 signed by Mr. J. Shorthall, Personnel Officer in the Department of Agriculture, that it was intended to hold interviews to determine the most suitable officer for the said training post and, in response to an invitation in that behalf, the Applicant duly attended for interview on the 21st day of March 1995 following which, by letter of even date signed by Mr. John McCarthy, Assistant Principal in the Personnel Division of the Department of Agriculture, the Applicant was advised that his application for the post of District Superintendent in the training unit of the Department had been successful and that he would be permanently head-quartered at Agriculture House, Kildare Street, Dublin 2.

5. Following upon his appointment to the post of District Superintendent in the said training unit as aforesaid, the Applicant assumed all the duties and responsibilities of that post and, from that time, has executed such duties and honoured such responsibilities to the satisfaction of the Respondent.

6. Following protracted negotiations which extended over a period of years between the Applicant's trade union, IMPACT and representatives of the Department of Agriculture, a decision was taken in or about the year 1997 to assign an Area Superintendent to the said training unit.

7. During the currency of the negotiations aforesaid, the Applicant, who, incidentally, during a period of secondment from the Department of Agriculture between the 2nd March, 1987 and the 20th January, 1994 had successively occupied the positions of Branch Secretary and Assistant General Secretary of the said Trade Union, became aware of proposals for the restructuring of agricultural officer grades in the Department of Agriculture whereupon he sought details from the said Trade Union of any proposals in respect of his position in the said training unit. In response to the said query, the Applicant was advised by a memorandum in writing dated the

29th November, 1995 from the IMPACT Trade Union that there were no proposals in relation to his post.

8. Following the assurance aforesaid that there were no proposals in respect of his post in the said training unit, the Applicant entered into correspondence and exchanged memoranda with Mr. Joseph Shorthall, Personnel Officer in the Department of Agriculture and with the IMPACT Trade Union with regard to the possibility of allocating an Area Superintendent post to the said training unit and with regard to the status of the officer who might be appointed to that position. In course of such correspondence and memoranda, the Applicant enquired as to whether or not, in the event of the allocation of an Area Superintendent to the said training unit, his existing role and functions in the unit would be altered and was assured by Mr. Shorthall that, in that event, his function in the unit would remain unchanged. Ultimately as hereinbefore appears, a decision was taken to assign an Area Superintendent to the said training unit.

9. In the month of February 1997, a notice of a competition for the post of Area Superintendent in the said training unit was circulated by the Respondent and the Applicant made application for appointment to that post. In response to an invitation in that behalf, the Applicant attended for interview with regard to the appointment of an Area Superintendent on the 18th March, 1997 following which, by letter dated 3rd April, 1997 signed by Mr. John McCarthy of the Personnel Division of the Department of Agriculture, he was advised that his application had been unsuccessful.

10. By letter dated the 4th April, 1997 addressed to Mr. McCarthy aforesaid, the Applicant acknowledged that, as he had been unsuccessful in obtaining the post of Area Superintendent and, as an Area Superintendent was to be allocated to the said training unit, he would be replaced by that Area Superintendent as the technical officer with responsibility for technical training in the said unit. Accordingly, the Applicant indicated in that letter that his preferred option would be to fill the District Superintendent post in the DVO, Agricultural House, which he then believed to be vacant.

11. By letter dated the 10th April, 1997 addressed to the Applicant by Mr. John McCarthy aforesaid, it was confirmed to the Applicant that, as an Area Superintendent would be assigned to the said training unit, it would not be necessary to have a District Superintendent assigned to that unit. Moreover, in that letter, the Applicant was advised that the post of District Superintendent which he had indicated was his preferred option was not, in fact vacant.

4. In an Affidavit sworn herein on the 9th May, 1997, the Applicant asserts that he had applied for the post of District Superintendent in the said training unit in the month of February 1995 because he wished to advance his career as he believed that, while his grade as District Superintendent would remain unchanged were he appointed to the training post, the challenge of the post; in particular the fact that it involved taking charge of twelve hundred staff members in the training area, would enhance his standing in the Civil Service if he met the demands of that challenge. I do not doubt that assertion. In the said Affidavit, the Applicant also maintained that, when he was appointed to the post of District Superintendent in the said training unit, he believed that such appointment was a tacit acknowledgement that his application and commitment to his work in the past was being recognised; if for no other reason than that the said circular of the 15th February, 1995 emphasised that the post of District Superintendent in the training unit involved special skills and abilities. Not only do I not doubt that this was the Applicant's belief but I think that, having regard to all the circumstances surrounding the creation of the post of District Superintendent in the said training unit, he was entitled to that belief. In this regard, it is relevant to note that it is accepted by the Respondent that the requirement that the Applicant be interviewed to establish whether or not he was suitable to be transferred to the post of District Superintendent in the said training unit was an unusual, although not a unique, requirement. The Applicant further maintains that, in the circumstance that, in the said letter of the

21st March, 1995 advising him that his application for the post of District Superintendent in the said training unit had been successful, it was stated that he would be permanently headquartered at Agricultural House, it was implicit therein that his appointment to the said post was permanent and that he was only susceptible to removal therefrom on the grounds of misconduct or deficient performance. In this regard, the Respondent protests that, by virtue of the form of acceptance executed by the Applicant on the 16th March, 1994 following his promotion to the grade of District Superintendent, he is always susceptible to assignment to any duties appropriate to that grade and, accordingly, his appointment to the post of District Superintendent in the said training unit was not permanent in the sense suggested by the Applicant. Furthermore, the Respondent protests that the use of the words "permanently headquartered" in the said letter of the 21st March, 1995 merely indicated to the Applicant where his normal place of work would be following his appointment as District Superintendent to the said training unit and was neither intended to nor did it convey the impression that his appointment to the said unit was permanent in the sense that he contends for, in that, as the Applicant well knew, it is a phrase which was invariably used when notifying staff in the Agricultural Officer structure of a transfer to different duties. In this regard, while, as I have already indicated, I do not doubt the Applicant's stated motive for applying for the post of District Superintendent in the said training unit, nor his stated belief that his appointment to that post would enhance his standing in the Civil Service and reflect a recognition of satisfaction with his work performance up to that time, I am not persuaded that the circumstances surrounding his appointment to that post nor, indeed, the manner of his appointment was such that it was implicit therein that the appointment was permanent in the sense that, in the absence of misconduct or deficient performance, the Applicant could not be removed therefrom, unless with his consent. Not only am I not persuaded that the Applicant's appointment to that post was permanent in the sense contended for by him, but I do not think that he had any reasonable grounds for believing otherwise. Indeed, he acknowledged as much when, in a letter dated the 4th April, 1997 addressed to

5. Mr. John McCarthy of the Personnel Division of the Department of Agriculture following his unsuccessful application for the post of Area Superintendent in the said training unit, the Applicant recognised that he would be replaced as Technical Officer with responsibility for technical training and indicated his preferred option with regard to the alternative post to which he might be transferred. In this connection, the Applicant purports to negative the implications of the contents of that letter of the 4th April, 1997 to Mr. McCarthy aforesaid on the grounds that it was written by him without the benefit of independent legal advice and that, therefore, in the absence of such advice, he did not appreciate the significance of the concessions made therein. While I do not doubt the assertion that that letter was written without the benefit of independent legal advice and I accept that, had the Applicant sought such advice before he wrote it, the likelihood is that he would not have written a letter in those terms, nevertheless, it seems to me that the contents of that letter reflects the Applicant's state of mind with regard to the permanency of his post as District Superintendent in the said training unit; a state of mind which recognised that that post was no more permanent than any other post to which a District Superintendent might be appointed. In any event, while it is a fact that the post of District Superintendent in the said training unit to which the Applicant was appointed on the 21st March, 1995 was, at the time of that appointment, a newly created post and was expressed to involve special skills and abilities and that, contrary to the usual practice, Applicants for transfer to that post were required to submit to interview, it is also a fact that the successful Applicant for appointment to that post would retain the grade of District Superintendent in the Department of Agriculture, in other words, his status in the Department would not change. It follows, in my view, that, in the absence of any express proviso to the contrary, the successful Applicant for the post of District Superintendent in the said training unit would continue to be subject to the conditions of service which were applicable to that grade of officer. Accordingly, in the absence of any express stipulation that, following his appointment as District Superintendent in the said training unit, the Applicant would be subject to or would enjoy any different conditions of service from those which obtained on his appointment to the grade of District Superintendent in the month of January 1994, it seems to me that even after his transfer to the post of District Superintendent in the said training unit, the Applicant continued to be subject to the limitations imposed on him by the form of acceptance which he executed following his promotion to the grade of District Superintendent whereby he is obliged to perform any duties, appropriate to that grade which may, from time to time, be assigned to him by the Respondent. In these circumstances, I do not consider that the said letter to the Applicant of the 10th April, 1997 either purports to or in fact varies the Applicant's conditions and/or contract of service. On the contrary I think that it reflects the entitlement of the Respondent to assign to the Applicant any duties appropriate to the grade of District Superintendent which, from time to time, are deemed expedient as acknowledged by the Applicant in the form of acceptance which he executed on the 16th March, 1994 following his promotion to the grade of District Superintendent in the Department of Agriculture.

6. While, as I have indicated, I am not persuaded that the said letter of the

4th April, 1997 purports to vary the Applicant's conditions of service and, therefore, it is not, in my view, invalid on that account, Counsel for the Applicant has submitted that, even in that event, his purported removal from the post of District Superintendent in the said training unit was arbitrary and capricious, unfair and unreasonable and contrary to principles of natural justice because it amounted to demotion of the Applicant, in that, he would suffer a loss of status (he would no longer be a head of a department) and loss of job satisfaction, without any complaint with regard to his performance as head of the training unit and without his being consulted or given any opportunity to challenge the basis for his removal. In this regard, Counsel for the Applicant pointed to the fact that the only reason advanced by the Respondent for removing the Applicant from his post as District Superintendent in the said training unit was that, following the negotiations aforesaid, it had been agreed between the Trade Union, IMPACT and representatives of the Department of Agriculture that an Area Superintendent would be assigned to the said unit. He argued that that was not a sufficient reason, in that, the Trade Union were not entitled to bargain away the Applicant's job without consulting him; particularly, as the Applicant had been advised by the Trade Union in the aforesaid memorandum of the 29th November, 1995 that the negotiations aforesaid did not include any proposals in relation to the Applicant's post in the said training unit and, in response to a memorandum in writing dated the 2nd December, 1996 from the Applicant to Mr. Joseph Shorthall, Personnel Officer, in the Department of Agriculture, Mr. Shorthall had assured the Applicant that, following the negotiations aforesaid, his function in the said training unit would remain unchanged. Mr. Horan, for the Applicant, further argued that, irrespective of whether or not the Applicant's contract of service entitled the Respondent to assign different duties to him from time to time, he (the Applicant) had a legitimate expectation, based on the circumstances attending and the manner of his appointment to the post of District Superintendent in the said training unit and on the assurances that he had received thereafter from both the Trade Union and Mr. Shorthall, that he would not be removed from the said post save for misconduct, or inadequate performance, or following consultation with his superiors.

7. For the Respondent, Mr. Butler, submitted that the Applicant's removal from the post of District Superintendent in the training unit was not a demotion, in that, he still retained his grade as a District Superintendent in the Department of Agriculture and that any loss of job satisfaction resulting from that removal was irrelevant. While contending that the Applicant's conditions of service entitled the Respondent to transfer him to duties appropriate to his grade, Mr. Butler conceded that that right was not an arbitrary one and could only be exercised with reason. In this regard, however, Mr. Butler maintained that the agreement between the Trade Union, IMPACT and the Department of Agriculture whereby an Area Superintendent, who would carry out the functions theretofore carried out by the District Superintendent, would be appointed to the said training unit was a sufficient reason for the Applicant's removal from his position as District Superintendent in the said training unit and he suggested that the Applicant's real grievance was not so much that he had been demoted but that he had failed to secure promotion to the grade of Area Superintendent. In those circumstances, Mr. Butler submitted that the removal of the Applicant from his post as District Superintendent in the said training unit was neither arbitrary nor capricious, and he rejected the suggestion that any assurances given to the Applicant by either the Trade Union or by Mr. Shorthall with regard to the continuance of his functions in the said training unit after an Area Superintendent had been appointed thereto superseded the entitlement of the Respondent to rely on the Applicant's conditions of service for the purpose of transferring him to another post because neither the Trade Union nor Mr. Shorthall had any authority to vary the Applicant's conditions of service. Mr. Butler also asserted that, in the circumstance that the Applicant was a member of the Trade Union, IMPACT, the Trade Union were presumed to be representing his interests in the course of the negotiations aforesaid with the Department of Agriculture and that, therefore, the Applicant had not been deprived of the opportunity of challenging the decision to remove him from his post as District Superintendent in the said training unit to the extent that that decision was arrived at without regard for the Applicant's interests and did not accord with the principles of natural and constitutional justice. In this regard, Mr. Butler maintained that, if the Applicant had a legitimate grievance, it was against his Trade Union rather than the Respondent. Moreover, Mr. Butler submitted that any relief granted to the Applicant in these proceedings would seriously prejudice the Respondent with regard to the agreement arrived at with the Trade Union for the restructuring of Agricultural Officer grades.

8. In my view, the decision to remove the Applicant from his post as District Superintendent in the said training unit was not arbitrary or capricious. It was a pragmatic decision based on the reality that, following an agreement lawfully entered into, an Area Superintendent be assigned to the said unit, the position of a District Superintendent therein was redundant. Moreover, as I have already indicated, I do not accept that the purported removal of the Applicant from the said post constituted a variance of his conditions of service or was, otherwise, invalid. In the circumstance that his removal from the post of District Superintendent in the said unit did not involve any alteration in his grade of seniority in the Department of Agriculture, I am satisfied that that removal did not constitute a demotion and I am not persuaded that any loss of job satisfaction which the Applicant may experience as a result of such removal is relevant to any issue which I have to decide. Moreover, I accept that any assurances which the Applicant may have received from his Trade Union, IMPACT, or from Mr. Shorthall of the Department of Agriculture with regard to the continuance of his functions in the said training unit did not prohibit the Respondent from exercising his right to remove the Applicant therefrom. Furthermore, for the reasons which I have already outlined, I do not consider that the Applicant had any legitimate expectation that he would remain in the post of District Superintendent in the said training unit unless found guilty of misconduct or inadequate performance. I also believe that the these proceedings were motivated; more by the Applicant's failure to secure promotion to the post of Area Superintendent in the said training unit and the unavailability of his preferred option of the post of District Superintendent in the DVO at Agricultural House, than by the fact of his removal from his post in the said training unit. However, notwithstanding those findings, I think that the fact that it is accepted that the Applicant had given every satisfaction in the performance of his duties as District Superintendent in the said training unit and that, before his removal from that post, he had been given assurances that proposed restructuring of Agricultural Officer grades would not alter his functions in the unit (I am satisfied that those assurances were given), I think that, before a final decision was taken to remove him from that post, he was entitled; firstly, to be notified that there was a real possibility that he would lose his position as District Superintendent in the said training unit and, secondly, to be given the opportunity to argue against that possibility. In fact, he was never given the opportunity to challenge the propriety of the decision to remove him from his post as District Superintendent in the said training unit but I do not accept that his membership of the Trade Union, IMPACT, disentitled him to that opportunity.

9. The Department of Agriculture is an administrative body to whom certain functions are entrusted; in particular and in the context of this case, those functions include the right to assign duties to personnel employed in the Department. In The State (Crowley) -v- The Irish Land Commission (1951 I.R. at page 250) the Supreme Court considered the tests to be applied in determining whether in respect of any particular function entrusted to it, an administrative body is bound to act judicially. In the light of the tests laid down by that case, I am of the opinion that, when considering whether or not to remove the Applicant from his post as District Superintendent in the said training unit, the Respondent was required to act judicially and to observe fair procedures because the decision arising from that consideration affected the Applicant's rights. In my view, by failing to advise the Applicant that his post as District Superintendent in the said training unit was in jeopardy and by failing to afford him the opportunity to argue against his removal from that post, the Respondent did not act judicially and failed to comply with the requirements of natural justice.