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Cite as: [2003] IEHC 58
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[1999 No. 465 J.R.]
BETWEEN
APPLICANT
RESPONDENTS
NOTICE PARTY
JUDGMENT of O'Higgins J. dated the 10th day of July 2003.
By order of Quirke J. dated 20th December, 1999, leave was given to the applicant to seek the following substantive reliefs by way of judicial review.
1. An order of certiorari quashing a decision made by the first named respondent on the 29th June, 1999, to terminate his employment at Trinity House School at Oberstown, Lusk, Co. Dublin.2. A declaration that the purported dismissal was contrary to law in that the said decision
(a) was not made by the board of management of Trinity House School and/or(b) was made without the prior or any approval of the Minister for Education and Science and/or-2- (c) was air excessively punitive disciplinary measure in all of the circumstances and disproportionate to the misconduct alleged against the applicant.3. A declaration by way of judicial review that the purported decision of the first named respondent was in breach of the terms of the Childrens Acts, 1908-1991 and regulations made thereunder known as "Regulations for the Conduct of Oberstown Youth Centre, 1985" which said regulations were made by the Minister for Education under s.3 (1) of the Children Act, 1941.
4. A declaration by way of judicial review that the first named respondent acted in excess of his authority as director of the said school and his purported decision to dismiss the applicant was ultra vires his powers.
5. A declaration that the applicant is entitled to full remuneration for his employment with the respondent from the date of his purported dismissal to the date of judgment.
The applicant was refused leave to seek "a declaration by way of judicial review that the respondents and each of them have failed to protect and vindicate the constitutional right of the applicant to a fair and balanced hearing relating to all allegations which have been backed against him and in particular failed to ensure that he was furnished with each and every statement and report which were prepared in relation to this matter."
By notice of motion in January, 2000, the applicant seeks leave to revisit these grounds on the basis of new matters said to have come to light since the refusal of Quirke J. This application was adjourned to the hearing of the action.
The Minister for Education and Science was a notice party to these proceedings. It was indicated however that no criticism was being made of the conduct of any officials of the department in their dealings with this matter and no relief was sought against the Minister or department. In the circumstances it was agreed that the continued representation on behalf of the department was unnecessary.
THE FACTS
The applicant was a childcare worker and was employed as such in Trinity House in Lusk, Co. Dublin for approximately fourteen years having commenced working for the defendant in 1985.
In November, 1998, an investigating team was convened by the board of management to investigate allegations regarding the applicant's conduct during the course of his employment at Trinity House School on 27th October, 1998. He was suspended from school on full pay pending the completion of the outcome of the investigation and the consideration of the report by the board.
The report of the investigating team was presented to the board of management (comprising the second named to the eleventh named respondents in the case).
The board referred the report to the first named respondent, Mr. Donnellan, who is the director of Trinity House School with a direction that he report back by the 17th December, 1998. Mr. Donnellan consulted with the chairperson of the board and sent out a letter detailing a proposed course of action as agreed between himself and the chairperson of the board.
The applicant was required to attend a medical examination and duly did so.
On 18th May, Mr. Donnellan set up a formal disciplinary hearing for 26th May, but at the request of the applicant this meeting was postponed and the date of 11th June, was agreed on. On the 9th June, a board meeting was held which the respondents rely on as authority for Mr. Donnellan to conduct the disciplinary hearing but which is challenged on various grounds by the applicant.
It is important to note that at the disciplinary hearing on 11th June page 4 of the investigation report which set out "indisputable facts" was not contested although a different sequence leading up to the applicant's arrival at work was furnished. Representations were
made and medical reports from Dr. Griffin and Dr. Neary as well as a document called "Sequence of Events" were furnished to Mr. Donnellan.
Having considered the matter Mr. Donnellan consulted with Ms. Teri Dungan chairperson of the board of management who gave her approval on behalf of the board to Mr. Donnellan's decision to dismiss the applicant.
A meeting was also held with members of senior management at which they agreed with Mr. Donnellan's decision.
Mr. Donnellan forwarded a letter to the Department of Education and Science seeking approval for the decision to dismiss. That approval was forthcoming by letter dated 25th June.
The applicant was informed by letter dated 29th June. The applicant subsequently unsuccessfully appealed the decision to the Minister for Education and Science.
ISSUES TO BE DECIDED
Against the factual background the issues which fall to be decided by the court are as follows:-
1. Whether or not the board of management was entitled to delegate its decision malting function to Mr. Donnellan.2. Whether the board did in fact delegate its functions in a proper and effective manner.
3. Whether the sanction of a dismissal was disproportionate and should therefore be quashed by this court.
4. Whether leave should be given to argue natural justice grounds.
I propose to deal with these matters seriatim.
1. WAS THE BOARD ENTITLED TO DELEGATE ITS DECISION-MAKING FUNCTIONS?
Section 3(1) of the Children Act, 1941, provides
"The Minister may make regulations for the conduct of certified schools and, in particular and without prejudice to the generality of the foregoing, such regulations may make provision in relation to the education and training to be given to persons detained in such schools and the safeguarding of the health of such persons."
Section 5 of the Act of 1944, provides as follows
"1. The managers of a certified school shall, from time to time as occasion requires, appoint a person to be responsible for the immediate control and supervision of such school, and every person so appointed shall be known and is in this section referred to as the resident manager of such school.
2. The resident manager of a certified school shall reside ordinarily on the school premises.
3. The managers of a certified school may authorise the resident manager of such school to exercise and perform such of their powers, functions and duties (including, in particular, their powers, functions and duties under sections 52, 53, 67 and 68 of the Principal Act) as they think fit."
The Minister made regulations pursuant to s.3 of the Act of 1941, being "Regulations for the Conduct of Oberstown Youth Centre, 1985". The following are the relevant functions of the board as set out in the regulations.
"The functions of the Board of Management shall be as follows:
(i) the direct government of the centre in accordance with policy guidelines laid down from time to time by the Minister and regulations made by the Minister under the Children Acts.
(ii) the selection, appointment and dismissal of staff subject to the Minister's approval."
The applicant contends that the powers of the managers of the certified school, that is the board, to delegate their authorities contained in s.5(3) of the Act does not extend to allowing them to delegate their power to dismiss staff. It is pointed out on behalf of the applicant that the powers, functions and duties under ss.52, 53, 67 and 68 of the Principal Act which is referred to in s.5(3) of the Children Act, 1941, all refer to matters of health, safety or education.
Section 52 of the Children Act, 1908, deals with the powers of managers to decline to receive youthful offenders and children proposed to be sent to them and with their liabilities if they accept such. Section 53 deals with boarding out of such children with suitable persons. Section 67 deals with placing out on licence of children and s.68 deals with the supervision of youthful offenders and children after the expiration of their periods of detention. It is contended that by virtue of the ejusdem generis rule the matters which can be delegated by the board must be of the same type as the powers mentioned under ss.52, 53, 67 and 68 of the Principal Act. It is submitted that the power to dismiss is a power of a different type and therefore cannot be delegated.
In my view the ejusdem generis rule has no application. The rule is described as follows in Maxwell, Interpretation of Statutes, 12th ed., 1969, page 297.
"In the abstract, general words, like all others, receive their full and natural meaning, and the Courts will not impose on them limitations not called for by the sense or object of the enactment...
But the general word which follows that particular and specific words of the same nature as itself takes it meaning from them and is presumed to be restricted to the same genus as those words for
'According to a well established rule in the construction of statutes general terms, following particular ones apply only to such persons or things as are ejusdem generis with those comprehended in the language of the legislature.' (R v. Clerworth 1864 B and 5927 per Cockburn C.J. at p. 932.)
In other words, the general expression is to be read as comprehending only things of the same kind as that designated by the preceding particular expressions, unless there is something to show that a wider sense was intended, as where there is a provision specifically accepting certain classes not within the suggested ejusdem... The rule only applies to words following words which are less general".
In Bennion, Statutory Interpretation, 1997, page 962 it is stated that "The ejusdem generis principle is presumed not to apply where apparently general words are followed by narrower words suggesting ejusdem is more limited that the initial general words, if taken by themselves, would indicate. The question is however, as all or one of the legislators' intention."
The words in s.5(3) of the Act of 1941 "such of their powers, functions and duties" are general words. There is nothing to indicate that the legislature intended to confine the powers of delegation to matters of the same type as functions, powers and duties under ss.52, 53, 67 and 68 of the Act.
However s. 5(3) authorises the managers to delegate such of their
"Powers, functions and duties (including in particular the powers, functions and duties under Sections 52, 53, 67 and 68 of the Principal Act) as they think fit."
That section gives very wide powers of delegation to the board. The words as they think fit cannot be construed other than as giving the board very wide powers indeed. The principle of delegatus non potest delegare which was also intended to be applicable has, in my view, no application in the present case. It does not come into play where specific powers of delegation are given under a statute and cannot, therefore, be invoked successfully by the applicant in this case.
The applicant also submits that the delegation in this case was what he called a "hybrid" delegation and was, therefore, impermissible. It was argued that even if delegation were possible the delegation had to be a complete one. In this case the delegation of the decision-making to the manager was subject to the seeking the approval of the chairperson of the board. It was submitted that this was impermissible. No authority was advanced for this proposition and in my view there was nothing impermissible in the board delegating the power to dismiss to the manager, subject to seeking the approval of the chair of the board. I consider that the words "as they see fit" enable the delegation of some powers and retention of others by the board.
The applicant further submits that by virtue of the importance of the decision and its nature, it should be only taken by the board and the board had no power to delegate such a decision. He relies on the decision in the case of O'Neill v. Beaumont Hospital Board [1990] ILRM 419. The facts relevant to this case were set out in the head note of the judgment as follows:
"In March, 1998 the plaintiff was appointed as consultant paediatric neurosurgeon for a probationary period of 12 months. The contract provided that at the end of such period the hospital board should either certify with stated reasons that the
plaintiff's service had not been satisfactory, in which case the plaintiff would cease to hold the appointment, or certify that service had been satisfactory and confirm the appointment on a permanent basis. If the board fails so to certify, the appointment was deemed to take effect on a permanent basis."
In March, 1989, the hospital's chief executive certified, with stated reasons, that the plaintiff's service had not been satisfactory. The plaintiff instituted proceedings against the board claiming declarations that no valid certificate had been issued and that his appointment had taken effect on a permanent basis. Murphy J. held that no valid certificate as to whether the plaintiff's service was satisfactory had been issued and that the duty of issuing such certificate was one which should be performed by members of the board. In the course of his judgment at p. 425 Murphy J. stated that
"It may be that some preliminary work can be carried out by investigating bodies or by officers delegated for that purpose, but it seems to me that if one reads Clause 11 (2) in the light of the duties imposed on that body there is implicit in issuing a certificate of that nature and recognising the quasi judicial function that the correct construction to accord to the contract is that it is one which should be performed by members of the board itself and not by officers appointed by them irrespective of the competence of such officers or the integrity with which such officers order their inquiry."
It appears from the judgment that the decision turned on the interpretation of a contract. It does not offer support for the applicant's contention that by virtue only of the important nature of the decision it could not be delegated.
The applicant also relied on the case of Flanagan v. University College Dublin [1988] I.R. 724. In that case the High Court quashed a decision of a committee of discipline
on a number of different grounds. The applicant relies on the following sentence at p. 733 "Further by acting on Professor Hannon's report the committee had in effect delegated its function, which again is improper." That sentence, in my view, does not carry the proposition that in all circumstances a disciplinary function cannot be delegated. In particular, it does not address the situation where the power to delegate is specifically provided for by statute. Indeed, in that case, it was unclear from the report whence the powers of the disciplinary committee derived. The report merely says
"Regulations adopted by the Counsel on the 29th of October, 1912 include provisions relating to discipline and the function of the academic Counsel in relation thereto. It appears however that these regulations have fallen into disuse and that the present procedures as derived from resolutions and the academic Counsel passed over the years. Such resolution is to be found in the minutes but are not printed as such nor otherwise available".
From that passage it may well be that the powers exercised by the committee of discipline were themselves delegated to them from the academic council.
2. DID THE BOARD DELEGATE ITS FUNCTIONS IN A PROPER AND EFFECTIVE MANNER?
The applicant further contends that, even if there were a power to delegate, the minute of the 14th July was not sufficient to exercise such power. Reliance is placed on the following passage in de Smith, Woolf and Jowell, Judicial Review of Administrative Action, 5ch ed., page 367:
"Where power to sub-delegate prescribed functions has been conferred by statute, the delegation must be conveyed in an authorised form to the designated
authority, and must identify sufficiently what are the functions thus delegated, instead of leaving the sub-delegate to decide the ambit of his own authority."
I do not consider the lack of formality to be such as to render the delegation void in this case, nor do I regard Mr. Donnellan in this case as having decided the scope of his own authority.
Mr. Gardiner cited to the case of Nelms v. Roe [1969] 3 All E.R. 1379 referred to in footnote to the passage relied on by the applicant.
Section 232 (2) of the Road Traffic Act, 1960 provides
"Where the driver of a vehicle is alleged to be guilty of an offence to which this section applies - (a) the owner of the vehicle shall give such information as to the identity of the driver as he may be required to give - (i) by or on behalf of a chief officer of police..."
The relevant chief officer of police was the Commissioner of the London Metropolitan Police. In that case it was held that the Commissioner of the Police had delegated his authority to act under the section to the superintendent and that further delegation had taken place to the inspector with the implied consent of the delegator. There was no written instrument devolving power either to the superintendent or to the inspector from the commissioner, nor was there any specific verbal authority. In the case of the delegation from the superintendent to the inspector there had been verbal authority but no written authority. Both delegations were deemed to be good. The level of informality in that case - which was a case stated in a criminal matter - was considerably more than in the instant case because in the instant case there was a minute of the decision. While Nelms v. Roe [1969] 3 All E.R. might not necessarily be followed in this jurisdiction in relation to criminal cases, it does support the contention of the respondents that the lack of formality in recording the decision is not fatal to its efficacy.
Mr. Rogers further contends that the minute on the 9th June was not sufficient for Mr. Donnellan to proceed with the disciplinary hearing and to dismiss the applicant subject to the approval of the chairperson on behalf of the board. The minute does not specifically state that Mr. Donnellan was given power to dismiss or discipline the applicant.
In considering the argument that the minute was insufficient it is helpful to examine the history of the matter.
On the 16th of November, 1998, a special meeting of the board of management was conveyed to allow the board to consider a report on a staff matter which had arisen in Trinity House School and to decide on the appropriate action. The minutes of that meeting record that "it was agreed that PB would be suspended with pay pending a full investigation of the incident by management, the Department of Education and Science and the Board."
On the 9th December the sub-committee reported to the board. The relevant part of the minutes of the board meeting reads as follows
"The chairperson referred to the report received - and circularized privately at today's meeting - from the sub-committee set up to investigate the staff issue in which a member of the staff of Trinity House School had arrived for duty under the influence of alcohol. This matter had previously being discussed by the Board in their special meeting of the 16th November 1998 and a minuted account of that meeting was appended to the minutes of the board's meeting of the 11th November 1998.
Following lengthy discussion as to the nature of the disciplinary action to be invoiced in this case, the board concluded that departures from appropriate procedures in the initial handling of the matter by the then director might have tainted future disciplinary action in the case. Mr. Killeen noted that page 19 of the report highlighted the nature of such procedural errors and the chairperson advised that the board would have to
accept that the initial handling of the entire manner had been less than satisfactory. Mr. Donnellan cautioned that the handling of this case would put down a marker for the future and would send out a clear message as to the expected conduct of staff and policies to be adopted when such conduct was not delivered."
(Insofar as it is suggested that this comment constitutes a bias against the applicant or a pre judging of the issue I do not think that the entry in the minutes carries that proposition).
"Mr. Corcoran proposed that the Board seek legal advice on the nature and implications of the procedural errors contained in the report. Mr. Donnellan proposed that the board allow him a period of seven days to prepare a preliminary draft report in the matter following such legal consideration to which the board agreed."
It is clear from the foregoing that the board had a "lengthy discussion" as to the nature of the disciplinary action which might be involved in the case and the minute of the board meeting on the 9th June, must be read in that context and against that background.
Following a legal consultation on the 16th December, 1998, it appears that Mr. Donnellan consulted with the chairperson of the board of management on the 17th December, regarding the advice which he had received. He agreed that he would send out a letter to each member of the board of management detailing the course of action to be followed as being agreed between himself and the chairperson of the board. A copy was sent to each board member on the 23rd December, 1998. It informed them that the applicant's fitness to perform his role as a staff member was in question, that he would be furnished with a copy of the report, given full opportunity to comment on its contents and to attend a disciplinary meeting
with the representative of his choice for the purpose of making whatever representations he deemed fit. He stated that he had advised the applicant that the board members required him to submit to a medical examination and suggested that the applicant remain on suspension with full pay. The letter states that Mr. Donnellan had discussed the above advice both with the chair of the board of management and the Department of Education and had their support over this course of action. He invited the board members to contact him if there was anything that they wished to have clarified. The letter proposed a course of action taken after consultation. In my view, in default of any reservation, Mr. Donnellan was authorised to act in accordance with the proposals in that letter and to carry out the functions which he in fact carried out before the disciplinary hearing. These included the commissioning of the medical report. He also arranged for the holding of the disciplinary hearing. However he was not mandated by that letter to conduct the disciplinary enquiry or to take over the functions of the board.
It is in the context of the matters outlined above that the minute of the 9th June, 1999, must be taken. The relevant portion of the minute of the board of the 9th June reads as follows
"Staff; PD disciplinary hearing is on Friday 11th June. It was agreed that Mr. Donnellan should proceed with the hearing. He was informed that he had the support of the board in this matter. Mr. Donnellan undertook to convey to the outcome of the hearing and to seek Ms. Dungan's approval on behalf of the board before proceeding. The remaining board members concurred."
Mr. Rogers contends that that meeting is not sufficient warrant for Mr. Donnellan to proceed with the disciplinary hearing and to dismiss the applicant subject to the approval of the chairperson on behalf of the board. I disagree. I consider that there was no doubt in the mind of anyone at the meeting of the 9th June that Mr. Donnellan was being authorised to conduct the disciplinary hearing and to make such decision as he deemed proper subject to
such decision being approved by Ms. Dungan on behalf of the board. That was in fact what happened.
At paragraph 12 of his affidavit, sworn 27th March, 2000, Mr. Donnellan specifically states that he was authorised by the board of management to dismiss the applicant and at para. 14 he says inter alia "I say that the second named respondent Ms. Teri Dungan who was the chairperson of the board of management, endorsed my decision on behalf of the board and this endorsement was given on the 15th June, 1999 as referred to above."
Mr. Donnellan, in his affidavit dated the 4th February, 2002, further states at para. 9 that the board of management meetings of the 9th June record the delegated responsibility to the chairperson (Ms. Teri Dungan) to endorse the decision to dismiss the applicant.
Ms. Dungan's affidavit dated the 12th December, 2002, refers to this averment of Mr. Donnellan and agrees with it. No doubt it would have been more satisfactory had the decision to delegate been drawn up in a more formal way than the record contained in the minutes dated the 9th June. However, the inadequacy of the minute does not vitiate the decision which was made.
The relevant entry in the minutes of the next board meeting dated 14th July, 1999, also supports the conclusion that the board mandated Mr. Donnellan to conduct the disciplinary hearing and to dismiss the applicant if necessary, subject to the approval of the board to be exercised by Mrs. Dungan. It is recorded that "the chairperson received a copy of PB appeal to the Minister for Education and Science. Mr. Donnellan outlined the procedures to date and the Board were in agreement that this was not a board of management issue."
It is highly unlikely that the "procedures to date" would not have been challenged or at least commented on had they not been authorised by the board.
The applicant also submits that the chairperson, failed to comply with the resolution passed by the board on the 9th June that she would approve the decision to dismiss the applicant. Criticism is levelled at the fact that, when Ms. Dungan approved the decision
made by Mr. Donnellan, she was not in possession of any of the material upon which Mr. Donnellan relied. Furthermore no report was prepared by Mr. Donnellan which set out the factors relevant to the dismissal. The matter is dealt with in the affidavit of Mr. Donnellan as sworn on the 27th March, 2000, at para.13 as follows
"I say that on the 15th June, 1999 I consulted with the second named respondent who is chairperson of the board of management and I related to her how the meeting of the 11th June, 1999 had proceeded and I particularly advised her of the submissions made by the applicants. I say that I recommended to the chairperson that the applicant be dismissed from his post and she concurred with my assessment that the applicant be dismissed from his employment after a full discussion."
In her affidavit of the 24th December, 2000, Ms. Teri Dungan refers to para. 9 of Mr. Donnellan's affidavit and confirms the veracity of the averments therein insofar as they relate to her. Neither Mr. Donnellan nor Ms. Dungan were cross-examined and the only evidence before the court is that there was a full discussion and that the submissions of the applicant were made known to Ms. Dungan. The applicant has failed to prove that Ms. Dungan was not in possession of any material fact when she approved the decision of Mr. Donnellan. It might well have been more desirable had Mr. Donnellan prepared a report in writing and furnished it to the chairperson of the board. It might have been more desirable if she had been furnished with the documentation itself and not merely been informed of the contents thereof. A telephone conversation was not the ideal mechanism for conducting the business between Mr. Donnellan and Ms. Dungan. However the applicant has failed to prove that when she approved the decision of Mr. Donnellan on behalf of the board Ms. Dungan was not in possession of all the material evidence (other than the recommendation of the chief medical officer to which I will refer later).
3. WAS THE SANCTION OF A DISMISSAL DISPROPORTIONATE?
The applicant contended that the sanction of dismissal of the applicant in this case was disproportionate in all the circumstances. He referred to Cox v. Ireland [1992] 2 I.R. 503 and cited the following passage in Heaney v. Ireland [1994] 3 I.R. 593 at 607
"In considering whether a restriction on the exercise of rights is permitted by the Constitution, the courts in this country and elsewhere have found it helpful to apply the test of proportionality, a test which contains the notions of minimal restraint on the exercise of protected rights, and of the exigencies of the common good in a democratic society."
Both the Cox v. Ireland [1992] 2 I.R. 503 and the Heaney v. Ireland [1994] 3 I.R. 593 are of a limited assistance in the present case because they concerned the question as to whether statutory provisions were disproportionate to obtain the legislative objectives of statute law and are not directed against a decision such as the present one.
Mr. Rogers for the applicant referred me to a passage in the case of Fajujonu v. Minister for Justice [1990] I.L.R.M. 234 where Walsh J. observed that in making a decision which would have had the effect of breaking up a family the Minister
"Would have to be satisfied, for stated reasons, that the interests of the common good of the people of Ireland and of the protection of the State and its Society are so predominant and so overwhelming in the circumstances of the case that an action which can have the effect of breaking up the family is not so disproportionate to the aim sought to be achieved as to be unsuitable".
I was also referred to a passage in the case of Geoghegan v. Institute of Chartered Accountants in Ireland [1995] 3 I.R. 86 at 120 where the following passage occurs in the judgment of O'Flaherty J.
"It only remains to observe, therefore, that the Disciplinary Committee is, of course, bound to act judicially. As already indicated, the bye-laws contemplate that that should be so. That there should be proportionality, that the punishment should fit the offence (assuming any offence is made out), is expressly contemplated by the bye- laws and, in any event, if there were a departure from the principle of proportionality the decision would be subject to review by the courts."
That passage offers some support for the applicant's contention. However the respondent referred me to the case of Radio Limerick One Ltd. v. Independent Radio and Television Commission [1997] 2 I.R. 291, in which the question of proportionality was dealt with in p. 313 of the judgment. Keane J. (as he then was) stated as follows:-
"In a number of recent decisions in the High Court, and in this court, what has come to be known as the test of `proportionality has been applied in determining whether particular legislative provisions are unconstitutional. In the present case, there is no challenge to the constitutionality of the relevant legislation: it is, however, contended on behalf of the applicant that the use of the sanction of termination of the contract by the commission was disproportionate having regard to the nature of the breaches alleged against the applicant."
No Irish authority was cited for the proposition that the principle of proportionality could legitimately be invoked to test the validity of an administrative act, as opposed to the constitutionality of legislation, primary or delegated. In Hand v. Dublin Corporation [1989] I.R. 26, Baron J., referred to the possibility of such a principle being adopted in this jurisdiction in relation to the exercise of administrative powers, but, in the context of that case, did not have to decide whether it should be so adopted. In Bosphorus Hava Yollari Turizm ve Tickaret Anoiniuln Sirketi v. Minister for Transport [1994] 2
I.L.R.M. 551, Murphy J. concluded that, in determining whether a particular regulation of the European Union was to be interpreted as imposing a particular degree of hardship on an innocent party, the court should consider whether it was indeed the purpose of the regulation to impose a disproportionate penalty on such an innocent party. That again is not authority for the wider proposition contended for on behalf of the applicant in the present case, i.e. that the principle of proportionality can be involved in determining the validity of administrative decisions of bodies such as the commission.
In England, an approach based on proportionality has been adopted by the courts in a number of cases: thus, in R. v. Barnsley MBC ex paste Hook [1976] 1 W.L.R. 1052, a local authority's suspension of a stall-holder's licence on the ground that he had been guilty of misconduct when he urinated in the street and used offensive language was set aside in the Court of Appeal on the ground inter alia that the punishment was out of proportion to the offence. Other instances are cited in an interesting article to which we were referred. "Proportionality: Neither Novel nor Dangerous" by Professor Jeffrey Jowell and Lord Lester of Herne Hill (New Directions in Judicial Review, [1988] Ed. Jowell and Oliver pp. 51-72). The learned authors argue persuasively that the recognition of proportionality as a doctrine in administrative law would not permit intervention in the merits of the decisions of public officials to an extent greater than Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 KB 223 test already allows. They urge, on the contrary, that its adoption, where appropriate, would be of assistance in eliminating the somewhat vaguer standards which would otherwise prevail in this area of the law.
Whatever view may be taken as to the desirability of that approach, it can be said with confidence that, in some cases at least, the disproportion between the gravity or otherwise of a breach of a condition attached to a statutory privilege and the permanent withdrawal of the privilege could be so gross as to render the revocation unreasonable
within Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 KB 223 or The State (Keegan) v. Stardust Victims Compensation Tribunal [1986] I.R. 642 formulation.
It appears therefore that the Supreme Court was leaving over the question as to whether proportionality was a ground for judicial review on grounds other than Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223 or The State (Keegan) v. Stardust Victims Compensation Tribunal [1986] I.R. 642 criteria.
I was also referred to Stroker v. Doherty [1989] I.R. 440 where Barron J. in order of dismissal of a garda on the basis that the penalty imposed was not appropriate for the offence. On appeal however, his decision was reversed. I was referred to a passage of the judgment of Griffin J. in Stroker v. Doherty [1991] 1 I.R. 23 at 27 where he stated:
"Where the procedures provided for have been carried out, and were there is no allegation (as in this case) that there was not a full and fair hearing at the inquiry, or by the appeal board, the Court, in my opinion has no power by judicial review to substitute its opinion for that of the body provided by law to investigate the matters in question, unless, as stated by Henchy J. in The State (Keegan) v. Stardust Victims Compensation Tribunal [1986] I.R 624 at p. 658:-
"the impugned decision... flies in the face of fundamental reason and common sense."
The judgment of McCarthy J. contains the following passage at page 28:
"The decision of an administrative tribunal, such as here, is subject to judicial review on certain established principles, the operation of which may lead to Judicial condemnation or qualification of such decisions. If it be shown that in coming to its decision, the tribunal took into account matters which were not relevant or failed to
take into account matters which were relevant, then the decision will be set aside. Further, a decision may be quashed for unreasonableness."
Whether the judicial review may be involved to quash a decision such as the one in the present case is in my view uncertain.
Mr. Rogers, while asserting that the principle of proportionality applied in judicial review cases, acknowledged the difficulties in applying the proportionality test to the process of judicial review which is concerned, not with the decision, but the decision-making process. Assuming however, for the purpose of this case that, that the lack of proportionality may give rise to relief by way of judicial review, the court has not been persuaded that the dismissal of the applicant in this case was disproportionate. Despite his good record, and notwithstanding the matters which were advanced in favour of the applicant, the sanction of dismissal could not be said to be a disproportionate sanction in view of the extremely serious nature of the matters admitted by the applicant and the breakdown in confidence and trust caused by such conduct.
Natural Justice Grounds
The natural justice grounds may be summarized as follows:
(1) A complaint that the first named respondent wrongfully relied on the interview with D.C.
(2) The failure to furnish the Chief Medical Officer's report to the applicant and to Ms. Dungan.
(3) Complaints concerning the information passed on to the Minister and the failure to notify certain matters to the Minister, the inclusion of areas of concern noted on Mr. Brennan's personnel file, the giving of the opinion that there was a link between the applicant's attendance at the school and later disturbances.
The principal of fair procedures requires that a person be entitled to know the allegations being made against them and have an opportunity to deal with those allegations
the minute of the disciplinary hearing shows in my view that both of those requirements were dealt with.
The Interview with DC
On the 20 December, 1998, Mr. Donnellan received information from Mr. Kevin Brennan that he had heard that the applicant had dragged DC off a bed and advised him to keep his mouth shut. As a result of that information Mr. Donnellan interviewed DC, a former resident of Trinity House, on the 5th May, 1999. In considering this aspect of the case I consider it unnecessary to resolve the conflict between the applicant who maintains that Louise O'Donnell, the applicant's trade union representative, informed Mr. Donnellan that if he required to interview any of the boys the applicant would require a similar opportunity, and Mr. Donnellan, who denies this and suggests that if such a statement were made by Ms. O'Donnell it may well have been to the inquiry team. The applicant was not furnished with a record of that visit. The complaints of the applicant are as follows:
(a) that Mr. Donnellan wrongly relied on that visit in making his decision,
(b) that he did not confront the applicant with the allegations contained therein,
(c) that he did not furnish the applicant with a record of the said interview.
The applicant in support of his contention relies on
(i) The part of a letter written by Mr. Donnellan to Carmel Egan HEO on 4th August, 1999 in which he said
"I refer you to the final three paragraphs of a note written by me on the 5th May, 1999 entitled Professional Visit to DC at Mountjoy Prison. I regarded this interaction as most harmful and a complete breach of trust."
(ii) A document entitled "Draft Statement by Michael Donnellan in Relation to the Dismissal of Pat Brennan" where, in the order of events, he records the fact that "on 5th May I visited one of the young people involved in the incident of 27th October, 1998."
(iii) The timing of the visit being some weeks before the disciplinary hearing when the complaint of a colleague was passed on by Mr. Kevin Brennan on 24th December 1998.
The matter is dealt with by Mr. Donnellan in para. 5 of his affidavit of 4th February, 2002 in which he deposed that the reason why he interviewed DC "related solely to child protection concerns since it had been related to me that the applicant had dragged DC off the bed and advised him to `keep his mouth shut'. Thus the purpose of my interview was to establish what happened to DC (if anything) from a child protection standpoint and to see if a referral to the Health Board was necessary."
He further dealt with the matter of his affidavit of 11th December, 2002, in para. 5 and subsequent paragraphs.
Paragraph 5: "I beg to refer to paragraph 6 of Mr. Connolly's affidavit and in reply I say that the DC issue arose on the 27th October, 1998 when the applicant attended for work, that is on the night of the incident the subject matter of these proceedings. I was informed of the DC matter on the 24th December, 1998 by Mr. Kevin Brennan, Deputy Director Psychologist, Trinity House School. This telephone conversation with. Mr. Kevin Brennan took place shortly before he ceased working for the respondents as a psychologist. Mr. Kevin Brennan made a complaint which was extremely serious and I regarded it as constituting an allegation of physical and emotional abuse by the applicant against DC who was a resident in Trinity House. I accordingly considered it necessary to speak with the boy in question."
Paragraph 6: "Further to paragraph 5 aforesaid, I was advised by those persons who are close to DC not to interview him while he was in
Trinity House School and this was based on fear and a culture of collusion. I am satisfied that there was substance in the contention that there was collusion and I am also aware from the investigation into the applicant that staff who assist the school subsequently came under pressure. Accordingly, my decision, on advice, was to interview DC while he was in Mountjoy Prison and I duly met him on the 5th May, 1999. I reiterate that my interview with DC did not form any part of the decision to recommend a dismissal of the applicant. I beg to refer to the notes of my interview with DC upon which pinned together and marked with the letters "C" I have endorsed my name prior to the swearing hereof. I repeat that I did not take my interview with DC into account in reaching a decision to recommend that the applicant's employment be terminated. Indeed as I have explained in my previous affidavit, the applicant had already been dismissed prior to the preparation and dispatch of my letter of the 4th August, 1999. I say that my letter of the 4th August, 1999 was furnished to the notice party on request and in reply to his letter of the 19th July, 1999 which sought my response to the details contained in the applicant's notice of appeal to the Minister dated the 8th July, 1999."
It is instructive to examine the circumstances in which the visit to DC arose in correspondence in order to put in context Mr. Donnellan's references to the visit despite his evidence that the visit played no part in his decision to dismiss the applicant.
In relation to the letter of 4th August which refers to the visit to DC to Carmel Egan it is important to note that Mr. Donnellan was requested to respond in detail "To all issues raised in a letter to the Minister by the applicant."
Amongst the issues raised was a continent by the applicant that the interaction with the children on the night in question was not harmful. It was in response to a specific request and in response to a specific issue raised in the applicant's letter that Mr. Donnellan referred to the visit to DC. It was quite understandable that he should refer to the visit with DC in responding to the comment of the applicant "that the interaction cannot be described as harmful - at most perhaps embarrassing."
An entry made by Mr. Donnellan in a draft statement dealing with the dismissal the applicant stated "On 5th May, 1999 a visit of one of the young people involved in the incident of the 27th October 1998". This is also relied on by the applicant to show that Mr. Donnellan took that matter in consideration in his decision to dismiss. It is no doubt susceptible of being interpreted in such a manner. However, it is one of 32 different matters listed, some of which have peripheral connection with the decision of Mr. Donnellan himself. At best from the applicant's perspective it might have afforded material on which Mr. Donnellan might have been cross-examined. However it is not sufficient to refine his sworn testimony.
The delay between the time of Mr. Brennan passing on the complaint to Mr. Donnellan on 24th December, 1998 and the interview with DC some six weeks before the disciplinary hearing is relied on by the applicant in support of the contention that the interview was relied on by Mr. Donnellan in arriving at his decision. In passing it should be noted that in Exhibit A to his affidavit on 27th February, 2003, Mr. Kevin Brennan avers "I wish to make it clear that I did not make a complaint or an allegation of physical and emotional abuse I simply reported to the Director of Trinity House what I had been told by a member of staff about the incident." However the source of the complaint is not the matter in issue in this argument. Mr. Donnellan's evidence is to the effect that he was advised by persons who were close to DC not to interview him while he was in Trinity House and that his decision and advice was to interview him when he was in Mountjoy prison. In his
affidavit dated 20th February, 2003, Mr. Connelly states that Mr. Donnellan had failed to point out that the boy in question had left Trinity House for "approximately one month" and it was open to Mr. Donnellan to interview the boy after that. He also states that the boy was in Wheatfield Prison in November, 1998 and a note of a visit to him in that institution is exhibited. It may very well be that Mr. Donnellan could have interviewed the boy earlier, but I am not persuaded that the timing of the interview was significant and it would be wrong to make any inference adverse to Mr. Donnellan based on the fact that there was a delay between the receipt of the allegation and its investigation.
The testimony of Mr. Donnellan on all of these issues has not been challenged by way of cross-examination and stands uncontradicted. I accept it. Counsel has submitted that the contents of the letter of the 4th August referred to above are "incongruous" and "don't fit in well with the affidavit of Mr. Donnellan." The supplemental affidavit of Mr. Connolly dated the 14th February, 2002 states in para. 6 "The contention that DC was interviewed solely in relation to child protection issues, some six or seven months after the concern allegedly arose is open to question." That gratuitous observation does not refute the sworn testimony of Mr. Donnellan.
Mr. Donnellan had no duty to furnish the applicant with a note of the interview on which he did not rely in his decision to dismiss the applicant. The assertion in the affidavit of Mr. Connolly dated 14th February, 2002, that Mr. Donnellan chose to hide the fact that he had interviewed DC is unwarranted. In any event, the contents of the DC interview did not vary materially from what had already been admitted by the applicant. The applicant, in his written submissions, refers to allegations against the appellant which were passed on by Mr. Kevin Brennan on 24th December, 1998 and complains that it was never put to the applicant, either during the course of the initial investigation, or the disciplinary hearing. There is no substance in this complaint. The allegation passed on by Mr. Brennan was the reason for the interview with DC and it was not
substantiated in the interview with DC. In paragraph 14 of his affidavit dated 4th day of February 2002. Mr. Donnellan states that he placed no reliance on the interview with DC in his decision to dismiss the applicant, and there is nothing to suggest that the 'unsubstantiated allegation passed on by Mr. Kevin Brennan was relied on in any way in the decision to dismiss the applicant. There was, therefore, no necessity to put it to him.
The Report of the Chief Medical Officer
The applicant makes the case that, at the disciplinary hearing, he was deprived of the report of the Chief Medical Officer of the Civil Service which might have been useful to hire. He also makes the case that the contents of the report of the Chief Medical Officer were not relayed to the chairperson of the board prior to her approving the decision of Mr. Donnellan.
It is helpful to set out the history of the matter.
By letter dated the 11th January and headed "Re: Medical Assessment of Patrick Brennan (Care Worker)", Mr. Donnellan wrote to the Chief Medical Officer of the Civil Service formally requesting him to carry out an appropriate assessment of Mr. Brennan. He indicated that he had "very serious concerns regarding Mr. Brennans continued capability and suitability to perform his duties or even face a disciplinary hearing."
Dr. John Griffin, a psychiatrist, was appointed to carry out the medical report and furnished his report on the 22nd March, 1999. The report contained the following
"To summarise then., I feel thus man would be worth a trial back at work again but obviously he will have to face whatever disciplinary hearing his director decides."
On the 12th April, 1999, Mr. Harte of the department wrote to Mr. Donnellan as follows
"Dear Michael,
The department has received a report from the Chief Medical Officer, regarding the above case. In this report the Chief Medical Officer states that Mr. Brennan should be allowed back to work for a trial period of three months at which point his case would be reviewed. I understand that the Chief Medical Officer's decision in this case may not be feasible, since Mr. Brennan is under suspension arising from a disciplinary matter.
In the light of the above decision perhaps you could furnish us with your observations on this matter and we can in return refer it to the Chief Medical Officer."
By letter dated the 20"' April Mr. Donnellan replied as follows
"Dear Edward,
Thank you for your letter of the 12th April regarding the Chief Medical Officer's report. I note that the return for a three month trial period as recommended. (sic) As you are aware from our recent conversations, I believe that this recommendation is inappropriate to the particular circumstances of this case. In my letter to the Chief Medical Officer of the 11th January I emphasised two particular points which required assessment. These were
1. Mr. Brennans capability to face a disciplinary hearing.
2. Mr. Brennans continued capability and suitability to perform his duties.
I do not believe that either of these issues has been clarified. Therefore I would appreciate if you would refer this matter to the Chief Medical Officer for further consideration.
I await your response."
On the 12th April, 1999 Ms. Cannel Egan replied to that letter saying as follows
"Dear Michael,
I refer to your letter of the 20th April, 1999, regarding the above.
I wish to confirm that I sought clarification from the Chief Medical Officer on the following points
1. Is Mr. Brennan capable of facing a disciplinary hearing?
2. What is the position regarding Mr. Brennan's continued suitability and capability for perform his duties;
I received a response to the above queries by telephone today. His reply to question number 1 was "yes". His reply to question number 2 is "Refer to CMO's memo of 26/03/99 - advised trial resumption after disciplinary inquiry."
It is clear from the foregoing that Dr. Griffin's recommendation was concurred with by the Chief Medical Officer of the Civil Service. The report of the Chief Medical Officer can scarcely be described as such. In its totality it reads as follows: Re Patrick Brennan, FAO Edward Harte, Special Education 2 Dept. Education. It bears the stamp of the Chief Medical Officer dated 26th March, 1999. It states "Dr. Griffin's report noted and held at CMO's office." Underneath that is handwritten "Allow Mr. Brennan back to work for a trial period of three months and review at end of this period." It is clear from the above that it is based entirely on Dr. Griffin's report. The applicant complains that he was not given this report by Mr. Donnellan. This complaint has no substance. Firstly Mr. Donnellan did not have the report, and secondly the report itself merely refers to Dr. Griffin's report and then contains the recommendation.
The applicant also complains that the recommendations of the Chief Medical Officer "presumably contained in the memo dated the 26th March, 1999" were not relayed to the applicant nor was he furnished with the correspondence. The applicant contends that this was helpful information which could have been of assistance both at the disciplinary hearing and at the appeal. However the applicant was aware on the 9th July, 1999, - before the appeal - that the recommendation of Dr. Griffin was supported by the Chief Medical Officer. This is apparent from the letter of that date in which the trade union official for applicant refers to the recommendation. There is nothing to suggest that this information carne into possession of the applicant between the date of the disciplinary hearing and the letter of the 9th July. It is difficult to therefore understand how the recommendations of the Chief Officer were not relayed to the applicant prior to the disciplinary hearing.
The applicant further complains that he did not learn until after the commencement of the proceedings that the Chief Medical Officer specifically recommended that he be given a three month trial resumption at work. However the length of the trial period of work recommended does not appear to me to be a relevant consideration. The applicant knew of and relied on Dr. Griffin's recommendations at the time of the hearing. The advice of the Chief Medical Officer was based solely on Dr. Griffin's report.
Even if the applicant was unaware at the time of the disciplinary hearing that the Chief Medical Officer had concurred with Dr. Griffin (and that must be doubtful) the lack of such information can not be said to have, in any real sense, prevented the applicant from filly making his case. Moreover the report was sought was in relation to medical matters and not in relation to disciplinary, matters. Mr. Donnellan on the 16th June, 1999, wrote to Carmel Egan and the course of the letter stated
"The Chief Medical Officer recently clarified that Mr. Brennan was fit to face a disciplinary hearing and also medically fit and capable of returning to duty for a three month trial period."
I think that accurately conveys the medical content of the Chief Medical Officer's report though it does not convey his recommendation. It was clearly within the entitlement of Mr. Donnellan not to accept the recommendation of the Chief Medical Officer. The uncontradicted evidence of Mr. Donnellan is that the medical documentation referred to was considered by him and carefully deliberated before he came to the conclusion that the applicant be dismissed. Any assertions to the contrary are unfounded.
It would appear that Ms. Dungan, the chairperson of the board, was not appraised of the recommendation of the Chief Medical Officer although she was aware of the recommendation of Dr. Griffin on which that recommendation was based. The report of Dr. Griffin, dated 22nd March, was relied on in submissions on behalf of the applicant and submitted to Mr. Donnellan (Exhibit H of Mr. Donnellan's affidavit, para. 11, 27th March, 2000). They formed part of the submissions of which he "particularly advised" Ms. Dungan. The recommendation of the Chief Medical Officer should had been furnished to her. However, the failure to inform her specifically of his recommendation is not important. The fact that the CMO adopted the recommendation of Dr. Griffin is not a fact which could have influenced Ms. Dungan. The likelihood or the possibility of this information influencing her judgment was not canvassed in evidence. It must be borne in mind that the purpose of the report of Dr. Griffin, which was made known to her, was in the context of a medical assessment to the applicant's ability to perform his duties or even face a disciplinary hearing (Letter Donnellan - CMO 11th January, 1999). The assessment of the applicant by Dr. Griffin and the subsequent report of the Chief Medical Officer, including the recommendation that the applicant be given a trial period back at work were given without detailed knowledge of the specific nature of the subject matter of the investigation and the admissions of the applicant. I agree with the submission of Mr. Gardiner that the recommendations cannot be appropriately seen as a sanction in respect of those complaints.
Documentation Furnished to the Department
Following the decision to dismiss the applicant after the disciplinary meeting on the 11th June, 1999 and the subsequent approval of that course of action given on behalf of the board by the chairperson, Mr. Donnellan, by letter dated the 16th June, 1999 wrote to Carmel Egan of the department seeking the departmental approval of the proposal to dismiss the applicant. This approval was given by letter dated the 29th June, 1999. Certain criticisms are made of the documentation passed on by Mr. Donnellan to Ms. Carmel Egan. It is submitted that, in seeking the approval of the Minister, the first named respondent highlighted those matters which were adverse to the applicant's case and failed to refer to matters which were of benefit to him. It is tike that Mr. Donnellan did not pass on the Chief Medical Officer's report to the department - he was not in possession of it at any time. He was merely informed of its contents by Mr. Harte of the department to whom it was addressed. He cannot be criticised for any internal failure in the department to pass on any relevant information in the possession of the department to Mr. Kilroy. Mr. Donnellan did however send on all documents submitted by the applicant during the disciplinary hearing, specifically the document entitled "Sequence of Events", the medical report of Doctor Griffin and the medical report of Dr. Paul Neary (see para. 10 of the affidavit, dated 4th February, 2002). Furthermore it appears from Mr. Donnellan's draft statement exhibited in Mr. Connolly's affidavit of the 20th February, 2003, that he supplied the department with the confidential report to the board of management and the notes of the disciplinary meeting itself as well as the documentation supplied within the submission of the applicant. The complaints that he failed to pass on matters of benefit to the applicant are, therefore, groundless.
The decision to approve the dismissal of the applicant was exercised on behalf of the Minister by Mr. Kilroy having been furnished with a document dated 22nd June, 1999 setting out the basis for the request for approval. Mr. Kilroy inquired whether the applicant
had been the subject matter of previous unsatisfactory reports and, in response, Mr. Donnellan on 28th July, 1999 furnished through Ms. Egan a letter setting out "areas of concern noted on Mr. Brennan's personnel file". The applicant complains about that. However I do not consider that Mr. Donnellan can be criticised in any way for replying to the query of Mr. Kilroy, or for replying in the manner that he did. If that information was wrongly used or relied upon, the respondents in thus case cannot be faulted for that.
The applicant complains that Mr. Donnellan links the applicant's attendance at the school on the night in question with the incidents which occurred later that night and some three days later. The report of the disciplinary hearing of the 11th June records Louise O'Donnell, the trade union official on behalf of the applicant as having emphasised that the applicant felt that there were no grounds to substantiate that the serious disturbances were in any way related to PB's visit and that the disturbances were a regular occurrence in Trinity House. It was submitted that, because Mr. Donnellan did not express a disagreement with that point of view at the meeting, he must be held to have accepted it and that the applicant was entitled to proceed on the basis that there was no such connection being alleged. I cannot accept any such contention. The applicant was, or should have been, aware from the report of the disciplinary committee that the possible connection between the applicant's behaviour and the subsequent disturbances was a live issue at the disciplinary meeting. The investigation team were of the view "that there may well be some link between Mr. Brennan's presence in the unit between 8.00 p.m. and 9.00 p.m. approximately and that incident." The report also records that "all of the staff interviewed by the investigating team are quick to deny any possible link between Mr. Brennan's presence in the Union and the subsequent disturbance on the 27th October, 1998." However that statement should be taken in the context where the investigating team "doubted the total honesty or truthfulness of everybody interviewed in connection with this case." In my view it was clearly signified to the applicant that it was a live issue to be made the subject matter of representations at the disciplinary hearing. The
fact that such representations were in fact made by the trade union official is itself evidence that she regarded them as being relevant. Having listened to those submissions it was open to Mr. Donnellan to reject them and to form the view that there was a link between the applicant's behaviour on 27th October and the subsequent disturbances. He was moreover entitled to express that view to Ms. Carmel Egan in his letter of 4th August, 1999 in response to a request to deal with the applicant's contentions on the same topic in his letter of appeal to the Minister.
Other Matters
In paragraph 6 of his affidavit of the 11th December, 2002, Mr. Donnellan was giving reasons why he did not interview DC in Trinity House school. He said he
"was advised by those persons who were close to DC not to interview him while he was in Trinity House school and this was based on fear and a culture of collusion. I am satisfied there was substance in the contention that there was collusion and I am also aware from the investigation into the applicant that staff who assisted the school subsequently carne under pressure."
The complaint is made that these allegations serve to undermine the applicant in regard to his conduct and response to the complaint but none of those matters were put to him either by the investigation team or by Mr. Donnellan. In my view, there was no necessity to put those matters to the applicant in the disciplinary hearing as there is no evidence to suggest that they were relied on by Mr. Donnellan in arriving at his decision to dismiss the applicant. Again, the context in which the issue of collusion arose is important.
The applicant was dismissed from his employment by letter dated the 29th June, 1999. He appealed that decision to the Minister and in support of his appeal sent a letter in which he comments in detail on the matters which Mr. Donnellan had concluded "comprised the essential principles of childcare protection." The applicant's comments in his letter are as
follows "Entering a secured area without being logged in. It has never been the practice of care staff to log their entry into the secure area. This is the responsibility of the duty officers."
In reply to that comment specifically Mr. Donnellan having being asked for a detailed response to the letter said "for whatever reasons on the 27th October, 1999 Mr. Brennan's entry and exit from secured care area was not logged. All other entries and exits were logged. I conclude that yet again, a collusion of concealment took place for which Mr. Brennan has to take some responsibility." That comment does not show that Mr. Donnellan took the decision to dismiss Mr. Brennan for reasons of collusion. It was made in the context of an appeal to the Minister from a dismissal already effected. I cannot agree that the allegation of collusion undermined the applicant in his response to the complaint. Furthermore the appeal to the Minister is not the subject matter of these proceedings.
Following the decision to dismiss the applicant and the approval for such action by Ms. Dungan, Mr. Donnellan consulted with senior management and stated that they were unanimously in support of the action. However Mr. Kevin Brennan senior psychologist was not invited to the meeting. He was on leave at the tune but was available to be contacted and he would not have concurred with the decision. Mr. Donnellan states in his affidavit that Mr. Brennan was not present for this meeting "as he has announced his intention to take early retirement on the 11th February, 1999, such retirement to take effect from Sunday 14th February, 1999 and from that date he had no further involvement as senior manager and did not attend management meeting."
Mr. Kevin Brennan however says that he retired in September of 1999. In my view the absence of Kevin Brennan from the meeting is irrelevant to any matter which I have to decide because the decision to dismiss the applicant had already been taken and approved by the chairperson of the board. The approval of the senior staff, while possibly of comfort to Mr. Donnellan, did not impinge on a decision which had already been taken. It is worth
noting that the support of the senior members of the staff was not conveyed to Carmel Egan of the department in Mr. Brennan's letter seeking the approval of the Minister.
Certain submissions of the applicant in relation to natural or constitutional justice concerned the possible application of the memo judex in re sua principle. These were not pursued by the applicant possibly because they were based on the misapprehension that Mr. Donnellan had been a member of the inquiry team which originally investigated the incident on the 27th October, 1998 whereas, in fact as stated in para. 10 of his affidavit of the 11th December, 2000 Mr. Donnellan was not part of such inquiry.
By notice of motion returnable for the 4th February, 2002, the applicant seeks to amend his pleadings to include the plea of failure to comply with natural and constitutional justice. Leave to argue those grounds was refused by Quirke J. on the original application on the 20th December, 1999. However the applicant submits that, having regard to material disclosed in discovery, he should be permitted to amend his pleadings. The matters he relies on are the interview with DC and the furnishing of the Chief Medical Officer's report which he received through the Freedom of Information Act, 1997 shortly before the swearing of Mr. Connolly's affidavit of 16th January, 2002 - Mr. Connolly refers to the report as having been "recently" received by the applicant. However the affidavit of discovery was sworn on the 30th May, 2000, by Mr. Donnellan and the contents of the discovery were available to the applicant from early June, 2000. No explanation has been given for the failure to bring the motion between June, 2000 and January and February, 2002. The applicant applied under the Freedom of Information Act, 1997, to the notice party for a copy of his file but the file was not furnished to him until September, 2001. The applicant tenders this as a partial explanation for the delay. However the content and the recommendation of the medical officer's report were known to the applicant not later than the 9th July, 1999, approximately ten days after his dismissal. This is clear by the reference to the said report in the letter of that
date by Ms. Louise O'Donnell, his trade union official. Thus the explanations for the delay furnished on behalf of the applicant are not convincing. However I was referred by the applicant to the following passage in the case of the State (Furey) v. Minister for Defence [1988] I.L.R.M. 89 at 100 where McCarthy J. stated
"Further I can see no logical reason why delay, however long, should, of itself, disentitle to certiorari any applicant for that remedy who can demonstrate that a public wrong has been done to him - that, for instance a conviction was obtained without jurisdiction, or that, otherwise the State has wronged him and that the wrong continues to marls or mar his life."
I was also referred to the case of Dooner v. Garda Siochana (Unreported, High Court, Finnegan J., 2nd June, 2000) as well as Toner v. Ireland (Unreported, High Court, Kinlen J., 11th February, 2000). The question of amending the pleadings is somewhat academic in view of the fact that the issues in the motion to amend have been fully argued no counsel. In view of the fact that the issues in the motion to amend have been fully argued by counsel. In view of my findings on those issues the case does not come within the ambit of the observations of McCarthy J. in the State (Furey) v. Minister for Defence [1988] I.L.R.M. 89 since the applicant has not demonstrated that a public wrong has been done to him. In the circumstances the applicant has failed to show that the amendments sought should be granted and I refuse such leave.
CONCLUSION
There was no real dispute in this case as to the facts alleged against the applicant. He was not deprived of any material which could be said to affect his ability to answer the allegations made against him. He was not deprived of any matter which could materially affect the representations made on his behalf. His representations were listened to,
considered and rejected. Mr. Donnellan was entitled to reject the representations. The authority to dismiss subject to the approval of the department had been lawfully delegated to Mr. Donnellan subject to the approval of the Ms. Dungan. This approval was forthcoming, Ms. Dungan having been informed of all relevant factors. The fact that she was not appraised of the recommendation of the Chief Medical Officer of the Civil Service does not, in my view, undermine the validity her approval. His recommendation was based on the report of Dr. Griffin the contents of which were known to her since they formed part of the submissions of the applicant. In any event, the recommendation that the applicant be given a trial period of work following the disciplinary proceedings, was a recommendation concerning the fitness of the applicant to work and not, a recommendation concerning the disposal of the disciplinary proceedings, the details of which were unknown to him. The decision made in this case was not, so disproportionate as to warrant the intervention of the courts even assuming that the courts are entitled to intervene on such grounds alone. Deficiencies in procedures adopted by the department prior to their approval of the decision - if there were any - were not and are not in these circumstances the responsibility of the respondent. The application must fail.