Supreme Court of Ireland Decisions

1. These are three separate applications for judicial review which were heard in the High Court by O'Higgins J. In his judgment delivered on the 12th May, 1998, he granted the applicants an order quashing the purported suspension of each of them from their positions in the Civil Service. From that judgment and order, the respondent has now appealed to this court.

2. Early in February 1997, an internal audit was conducted in the map sales office. In affidavits sworn by Mr. Richard Kirwan, an official of the Ordinance Survey Department, in response to the affidavits of the applicants grounding the application for a judicial review, he deposed that, in the case of each applicant, the audit disclosed that she had a significant excess of cash over [*3] receipts and that there were receipts issued to customers which did not match the corresponding receipts submitted to accounts.

3. On the 21st February 1997, each of the applicants was asked to come to Mr. Kirwan's office. The first named applicant (hereafter “Ms. Gavin”) and the third named applicant (hereafter “Ms. Deegan”) attended: the second named applicant (hereafter “Ms. Lynch”) was on sick leave and did not attend. At the meeting, Mr. Kirwan read to Ms. Gavin and Ms. Deegan a letter informing them that they were being suspended without pay and signed the letter in their presence. A letter in similar terms was sent by him to Ms. Lynch on the same day.

4. The letter of 21st February was in the following terms:-

5. In the case of Ms. Gavin, that letter was responded to as follows by solicitors acting on her behalf on the 27th February 1997:-

6. A letter was also written by the same solicitors on behalf of Ms. Lynch and it can be assumed that it was in similar terms.

7. Another firm of solicitors wrote on behalf of Ms. Deegan on the 26th February 1997 as follows:

8. On 3rd March, the personnel officer of the Ordinance Survey Office wrote to Ms. Gavin's solicitors informing them that their letter had been referred to the Chief State's Solicitor for his attention. On the 18th March letters in the following terms were sent to each of the applicants:-

9. In the case of each of the applicants, they were informed that the respondent had approved the payment of two-thirds of her salary during the period of suspension. [*7]

10. On the 10th March, 1997, an application for leave to issue proceedings by way of judicial review in respect of the purported suspension was made on behalf of Ms. Deegan and granted by the High Court. Similar applications were made on behalf of Ms. Gavin and Ms. Lynch on the 21st March 1997 and granted. Statements of opposition having been filed on behalf of the respondent in each case, and a notice of motion seeking the relief in question having been served on behalf of the applicants, the case came on for hearing before O'Higgins J.

11. The case presented on behalf of the applicants in the High Court was essentially that the respondent had acted ultra vires and without due regard for the applicants' constitutional rights in

12. Having referred to the facts and a number of authorities, the learned High Court judge pointed out that s. 13 (2) of the 1956 Act provides that:

13. The learned trial judge also cited the following observations from the judgment of Carroll J. in Ni Bheolain v. City of Dublin Vocational Education Committee and Others (unreported; judgment delivered January, 28th 1983):-

14. On the hearing of the appeal, Mr. Aston, S.C. on behalf of the respondent submitted that where, as here, a decision was taken to suspend a civil servant so that an inquiry could be conducted into suspected irregularities, the normal rules of natural justice or fair procedures did not apply, since the person concerned was not being disciplined in the sense of being removed from office [*10]

15. On behalf of Ms. Gavin and Ms. Lynch, Mr. Hartnett S.C. submitted that the suspension of his clients was clearly a disciplinary procedure and one of an extremely serious nature, since it not merely deprived them of their livelihood during the period of the suspension but also left them under a cloud of suspicion and was seriously damaging to their constitutionally guaranteed right to their good name. This was compounded in the present case by the fact that the terms of the letter of 21st February suggested that Mr. Kirwan had already decided that they were guilty of a grave irregularity warranting disciplinary action. [*11]

16. On behalf of Ms. Deegan, Mr. Horan adopted Mr. Hartnett's submissions. He further submitted that, in the case of his client, her uncontradicted evidence on affidavit demonstrated that she had provided a reasonable explanation of the alleged irregularities. While he did not contend that his client was entitled to the full range of fair procedures as In re Haughey , she was certainly entitled to specific details of the grave allegations being made against her and these had not been provided.

17. It is no longer in dispute in this case that Mr. Kirwan was at the relevant time a suspending authority in relation to each of the three applicants.

18. Where that subsection does not apply, subsection 2 provides that:-

19. As already noted, in the present case, subsection 4(b) was operated in favour of each of the applicants.

20. It is clear that the suspension of a person from their employment for a specified period because of irregularities or misconduct on his or her part can constitute a form of disciplinary action which would entitle the person affected to be afforded natural justice or fair procedures before the decision to suspend [*15] him or her is taken. The consequences of such suspension can be extremely serious for the person concerned, involving not merely their right to earn a livelihood but also their right to have their good name protected. In John v. Rees (1969) 2 All E.R. 274, Megarry J., in a passage cited by the learned High Court judge said:-

21. However, that was not a case in which the suspension was being imposed so that an enquiry could be undertaken as to whether disciplinary action should be taken against the person concerned and, if so, the nature of such a sanction. That distinction was emphasised by Lord Denning M.R. in Lewis v. Heffer and Others , a decision to which the attention of the learned High Court judge does not appear to have been drawn. Having cited the passage from the judgment of Megarry J., he went on:-

22. In this case, the applicants were not, of course, suspended on full pay, but, under the relevant statutory provision, were paid a proportion of the remuneration to which they would normally be entitled on the grounds of hardship. I am satisfied, however, that the distinction drawn in that case [*17] accords both with the general approach of the law and with common sense and should be applied to the present case.

23. That is not to say that natural justice and fair procedures have no role in the present case: that would be to ignore the right of the applicants to make representations to the suspending authority with a view to having the suspension terminated pursuant to s. 13 (2) of the 1956 Act.

24. A majority of the court (Finlay C.J., Walsh, Hederman, and McCarthy JJ.) were in favour of allowing the plaintiffs appeal on the second of these grounds. However, both McCarthy J. (who delivered the majority judgment) and Henchy J. (who dissented as to the second ground), were of the view that natural justice had been complied with in respect of the plaintiff having been informed of the reason for his suspension and having been afforded an [*19]

25. It is clear that both McCarthy J., by implication and Henchy J., expressly, accepted that a person against whom the provisions of Section 13 are invoked is entitled, because of the requirements of natural justice and fair procedures, to be informed of the reasons for his or her suspension so as to enable him or her to make such representations as he or she wishes to make to the suspending authority so that the suspension may be terminated. I would respectfully agree with that view of the law.

26. Before one can come to a conclusion as to how those legal principles should be applied to the present case the facts must be considered in more detail.

27. In her affidavit, grounding her application for judicial review, Ms. Gavin said that, some days after the arrival of the auditors, she was asked to attend at a conference room where she met Mr. Patrick McCarthy and Ms. Ann Maher [*21] from the Valuation Department. She (Ms. Gavin) was in the company of a union representative. She said that it was indicated to her that this was “a general enquiry” and that there was no suggestion that this was a hearing into any alleged irregularity by herself. She said that she was asked various hypothetical questions in relation to receipts and money not tallying and was asked how this could happen. She said

28. She then said she heard nothing further until 21st February when she was given the notice of suspension.

29. That account of events was, however, disputed by Mr. Kirwan in his affidavit. He said that the auditors had specifically asked the applicant about her excess of remittances over receipts and that she had explained that she had an unreceipted cheque for £156.00. She said that this cheque was for an urgent order which had been filled and, as the photo was apparently for a court case she expected that the customer would contact the Ordinance Survey at some stage in the future seeking the presence of a member of staff to attend court and [*22] that she intended issuing the receipt when the customer got in touch again with the office. Mr. Kirwan added:-

30. In a replying affidavit Ms. Gavin accepted that she had been asked about a specific transaction and her account of what happened in relation to it in the subsequent affidavit was broadly similar to that given by Mr. Kirwan. She added

31. In her affidavit grounding her application for judicial review, Ms. Lynch also deposed to having attended, accompanied by a union representative, a meeting with the auditors in February 1997. She said that she was told that this [*23] was an informal meeting in order to clarify things and there was no suggestion made that any wrongdoing was being alleged against her. She said that she was asked about cash and receipt books and whether it was possible that one could have a situation where the cheques received did not correspond with the receipts. She said that this was possible and that she was also told that she was “ up money” in that the cash she received exceeded the amount in the receipt book on one particular occasion. She said that no date or time was given but that she indicated that she had mentioned to her superintendent some six weeks prior to this that this had occurred. She added that

32. Again, this version of events was disputed in Mr. Kirwan's affidavit. He said:-

33. No replying affidavit to this affidavit was sworn by Ms. Lynch.

34. Ms. Deegan, in her affidavit grounding her application for judicial review, said that, at the meeting with the auditors, she confirmed that she complained in the past in relation to what she perceived as “inadequate cash handling procedures” in her department and she identified the individuals to whom she had made these complaints. She said that she answered all the questions as accurately as she could and that there was no intimation of any concern with her performance or conduct at any time.

35. In his affidavit, Mr. Kirwan did not dispute Ms. Deegan's account of events, although he did say that in her case, the audit had found that she had a significant excess of cash over receipts and that there were receipts issued to customers which did not match the corresponding receipts submitted to accounts. [*25]

36. In her replying affidavit, Ms. Deegan gave further details of the system as to receipt books which, she said, operated in the map sales department at the relevant time. She said that the receipt books consisted of blank sequentially numbered receipt books which were made available to staff who signed for the same. It was, however, the practice for the maps sales staff to utilise one another's receipt books and to sign out receipts from books other than their own. She also said that, in so far as the requirements to account, maintain records and remit to the accounts department were concerned, this was carried out though the receipt book and that she always retained cash for receipt in sales as a “float” to enable her to give change to customers. She said that, in order to generate a cash sales float, she always retained some cash and sales receipts in her cash drawer and this would accordingly have accounted for some small portion of her sales to the accounts department in arrears. She said that it was customary practice for her to supplement the cash retained in her cash drawer with personal monies to provide a cash float, when insufficient cash was available and that the management were aware of this practice. She said that, as a result, she never had a nil balance in her cash drawer since she maintained a float of change for customers at the counter who made cash purchases. She also said that other staff members would have used her cash receipt books over the years together with her cash drawer and that, [*26] accordingly, she had not control over her receipt books at any time despite her making complaints to her superintendents. She also said that the receipt books were of indifferent quality, had been the subject matter of complaints over the years by the staff and, in particular, were “ poorly carbonised” and fell apart very easily. She said that, as a result, it was virtually impossible to ascertain what the original receipt recited and that this created particular difficulty when completing the returns. Frequently, one had to resort to memory in order to complete the details of transactions.

37. Ms. Deegan reiterated that she had not been given the precise details of the precise irregularities under investigation and that she had not engaged in any wrongdoing. She also gave details of two cases in which she said that, for specified reasons, she had not recorded transactions pending receipt of information and that, to that extent, her cash sales were in excess of the receipts.

38. The issue in this case is, accordingly, as to whether each of the applicants was deprived of the opportunity to make representations to the suspending authority in order to have their suspensions terminated because they did not know in sufficient detail the nature of the grave irregularity warranting [*27]

39. Undoubtedly, if the letters of February 21st had been given to the applicants without any prior warning or intimation as to the nature of the irregularity referred to, there would be no answer to the applicants' claim that they were unable to make representations to the suspending authority in order to have the suspension terminated. That was emphatically not the position in the case of any of the applicants. In the case of Ms. Lynch and Ms. Gavin, they have accepted that, not merely were they told that the auditors were investigating an apparent discrepancy between the cash received by them and the receipts issued by them: they were asked about specific transactions where such discrepancies appeared to have occurred. I am bound to say that I find the argument advanced on their behalf that, because the letter of 21st February did not refer to the queries raised by the auditors at the meetings early in February the applicants would, as a result, have been in a state of uncertainty as to what was being alleged, disingenuous in the extreme. Both applicants must have been well aware when the letter of 21st February arrived that it was referring to the inquiry carried out by the internal auditors and to nothing else. Indeed, both applicants set out what subsequently transpired to be a significantly incomplete account of the meeting with the auditors in their affidavits [*28] grounding the application for judicial review, thereby accepting by implication that they were well aware that this was what had prompted the letter of February 21st informing them of their suspension. In each case, moreover, they were informed by the letter of March 18th of the nature of the irregularity being alleged against them.

40. The case of Ms. Deegan is somewhat different, since the affidavit of Mr. Kirwan contained no express averment that she was informed at the meeting with the auditors that there was, in her case, an excess of cash over receipts. However, again, she cannot have been under any misapprehension as to the reasons for her suspension, since the letter of the 18th March expressly stated that there was, in her case, a significant excess of cash over receipts in her possession, that cheques in her possession or returned by her to accounts could not be matched to receipts issued by her or to other receipts issued in map sales and that receipts issued by her did not match the corresponding receipts which she submitted to accounts.

41. I am, accordingly, satisfied that each of the applicants in this case was aware of the nature of the irregularities being alleged against them which, in the view of the suspending authority, warranted their suspension so that disciplinary action could be considered and an appropriate investigation [*29] undertaken. They were not in any way precluded from making such representations as they thought fit to the suspending authority in order that the suspension might be terminated and, I am, accordingly, satisfied that the conclusion reached by the learned High Court judge that they were not in a position to make such representations and that this was a violation of the principles of natural justice and of fair procedures was not justified by the uncontested evidence in the case.

42. I should add that the court was also informed that criminal proceedings had been in fact instituted against each of the applicants, that the jury had acquitted Ms. Lynch of the charges against her and that, in the case of Ms. Gavin, a nolle prosequi had been entered by the Director of Public Prosecutions in respect of the charges against her. The prosecution against Ms. Deegan is still pending, it would appear. However, this court is solely concerned with the state of affairs when the applicants instituted the proceedings by way of judicial review which were ultimately determined in their favour by the High Court. Whether any of the applicants would have been in a position to establish that the suspensions, because of the passage of time, had ceased to be valid having regard to the decision in Flynn v. An Post , is not a question which concerns this court. [*30]

43. I would allow the appeal in each case and substitute for the order of the

44. High Court an order dismissing the applicants' claim.