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Dismissal for Gross Misconduct – High Court refuses remedy sought of Judicial Review

The recent High Court case of Purdy v Commissioner of An Garda Siochana [2013] IEHC 141 (High Court, Kearns J, 11 April 2013) concerned proceedings arising from a decision of An Garda Siochana in October, 2012 to dismiss the applicant from his position as clerical officer in An Garda Síochána.SummaryThe applicant in this case sought an order of certiorari quashing the decision purporting to dismiss him from his employment with effect from the 12th November, 2012. The respondent had determined that the applicant’s position as clerical officer was untenable following a plea of guilty in October 2010 to possession of child pornography contrary to section 6 of the Child Trafficking and Pornography Act 1998 (as amended). On the 19th April, 2011, the charge was struck out following payment by the applicant of a contribution to the Rape Crisis Centre. The applicant sought relief that:-(a) The decision of the respondent to dismiss the applicant was disproportionate in the circumstances and therefore unreasonable;(b) The decision of the respondent to dismiss the applicant was ultra vires his powers, in particular in relation to Paragraph 65 of the Civil Service Disciplinary Code;(c) The Respondent has failed to provide the reasons for his decision to dismiss the applicant, in particular the exceptional circumstances warranting a departure from the Civil Service Disciplinary Code Appeal Board’s ruling on sanction and thereby failing to comply with the Civil Service Disciplinary Code, in particular Paragraph 65.Background FactsFor ease of reference and as set out in the High Court judgement, we have summarised the key facts in date order for ease of reference:

  1. By letter dated the 12th July, 2010, the applicant was notified by the then Commissioner of An Garda Síochána that, in light of the above charge against him (a charge which constituted an allegation of serious misconduct within the meaning of Circular 14/2006 Civil Service Disciplinary Code, revised in accordance with the Civil Service Regulation (Amendment) Act 2005),he was being suspended immediately with pay.
  2. By letter dated the 15th July, 2010, the applicant was informed by the Civilian Human Resources Directorate that its Director had been appointed to investigate the allegations and that a disciplinary investigation would remain in abeyance pending the outcome of the criminal investigation.
  3. On the 7th October, 2010, the applicant entered a plea of guilty to the above charge.
  4. On the 19th April, 2011, the charge was struck out following payment by the applicant of a contribution to the Rape Crisis Centre.
  5. The applicant was notified by letter dated the 19th August, 2011, that he be dismissed from his position as clerical officer.
  6. Prior to formal dismissal, submissions were invited by letter, dated the 21st October, 2011.
  7. By letter dated the 10th January, 2012, the applicant was informed that his employment as clerical officer was to be terminated. The applicant was advised of his right of appeal to the Civil Service Disciplinary Code Appeal Board (“the Board”) in accordance with the Civil Service Regulations.
  8. Written submissions were made on behalf of the applicant to the Board by the applicant’s solicitors on the 23rd January, 2012.
  9. On the 19th April, 2012, a hearing of Board took place at which detailed oral submissions were made.
  10. On the 20th June, 2012 the Board determined that the sanction of dismissal was disproportionate to the misconduct alleged and recommended that the following sanctions be imposed on the applicant instead of a dismissal:-
  • deferral of increment for a period of 5 years from the date of suspension on the 12th July, 2010;
  • debar from competition for a period of 5 years from the date of suspension on the 12th July, 2010;
  • transfer out of An Garda Síochána to an alternative position within the Civil Service.

11. The applicant was informed by letter of the 9th July, 2012, that the Board’s sanctions were not proportionate and the applicant’s dismissal was thus warranted. The matter was referred to the Commissioner, as the appropriate authority for review before making a final decision. Despite the determination of the Board, the applicant was informed by letter dated the 15th October, 2012, of his dismissal from his position as clerical officer in An Garda Síochána with effect from the 12th November, 2012. The reason given for the dismissal by the respondent was that the type of conduct alleged could not be allowed within An Garda Siochana and that the applicant’s position as clerical officer was now untenable.LegislationThe High Court noted that although the applicant was not employed by the Commissioner, the Commissioner exercised significant authority in respect of the applicant’s employment status, pursuant to Section 2 of the Civil Service Regulation (Amendment) Act 2005. It also noted that allegations of misconduct against a civil servant must be dealt with under Circular 14/2006: Civil Service Disciplinary Code revised in accordance with the Civil Service Regulation (Amendment) Act 2005. it further noted that if serious misconduct was alleged, paragraph 33 of the Code provided that disciplinary action including dismissal in accordance with the procedures set out in paragraphs 34-41 of the Code may arise, as serious misconduct was viewed as a “serious breach of the Civil Service rules and procedures or of recognised and accepted standards and behaviour which results in a breakdown of the relationship of trust and confidence between the Department/Office and the member of staff concerned. Serious misconduct will justify disciplinary action set out in this Code including dismissal…”The High Court looked extensively at the provisions of the Code and listened to both the applicant and respondent submissions.DecisionJustice Kearns looked at the legal principles underpinning the law on judicial review and referred to the recent Supreme Court decision in Rawson v. The Minister for Defence [2012] IESC 26, where Justice Clarke made the following comments at paras 6.1- 6.10 (repeated in full below)“6.1 It is trite law to say that judicial review is concerned with the lawfulness of decision making in the public field. Where a decision is made by a public person or body which has the force of law and which affects the rights and obligations of an individual then it hardly needs to be said that the courts have jurisdiction to consider whether the decision concerned is lawful. If it were not so then it is hard to see how such a situation would be consistent with the rule of law. For if decisions materially affecting the rights and obligations of individuals could be made in an unlawful fashion the rule of law would not be upheld.6.2 While the circumstances in which a decision made by a public person or body may be found to be unlawful are varied, it is possible to give a non-exhaustive account of the principal bases by reference to which such a finding might be made. First, the decision must be within the power of the person or body concerned. Second, the process leading to the decision must comply both with fair procedures and with whatever procedural rules may be laid down by law for the making of the decision concerned. Third, the decision maker must address the correct question or questions which need to be answered in order to exercise the relevant power and in so doing must have regard to any necessary factors properly taken into account and must also exclude any considerations not permitted. Fourth, in answering the proper questions raised and in assessing all matters properly taken into account the decision maker must come to a rational decision in the sense in which that term is used in the jurisprudence.6.3 There may, of course, be many variations or additions to that very broad description of the matters that need to be assessed in order to decide whether a decision affecting rights and obligations has been lawfully made. However, it seems to me that a party faced with a decision which affects their rights and obligations must be entitled to assess whether they have a basis for challenging the lawfulness of the decision in question. The courts have consistently held that it is an inherent part of the judicial review role of the courts that parties need to know enough about the process and the decision which affects them to be able to mount a challenge to that decision on the grounds of unlawfulness in an appropriate case.6.4. In O’Donoghue v. An Bord Pleanála [1991] I.L.R.M 750, Murphy J. said, at p. 757:-‘It is clear that the reason furnished by the Board (or any other tribunal) must be sufficient first to enable the courts to review and secondly to satisfy the persons having recourse to the tribunal that it has directed its mind adequately to the issue before it. It has never been suggested that an administrative body is bound to provide a discursive judgment as a result of its deliberations …’6. 5 Sometimes, of course, the process itself will provide for an appeal. It has consistently been held that parties who have a right of appeal within a process are entitled to sufficient information to enable them to consider, and if appropriate to mount, such an appeal. For example, Finlay P. in State (Sweeney) v. Minister for the Environment [1979] I.L.R.M 35, stated that it was necessary ‘… to give … (to an) applicant such information as may be necessary and appropriate for him, firstly, to consider whether he has got a reasonable chance of succeeding in appealing against the decision of the planning authority and secondly, to enable him to arm himself for the hearing of such an appeal.’6.6 Kelly J. came to a similar view in Mulholland v. An Bord Pleanála (No.2) [2006] 1 I.R. 433 at 460.6. 7 More recently in Meadows v. Minister for Justice, Equality and Law Reform [2010] 2 I.R. 701 Murray C.J. said that a failure to supply sufficient reasons would affect the applicant’s ‘constitutional right of access to the Courts to have the legality of an administrative decision judicially reviewed could be rendered either pointless or so circumscribed as to be unacceptably ineffective’.6. 8 While the primary focus of a number of the judgments cited, and indeed aspects of the decision in Meadows itself, were on the need to give reasons as such, there is, perhaps, an even more general principle involved. As pointed out by Murray C.J. in Meadows a right of judicial review is pointless unless the party has access to sufficient information to enable that party to assess whether the decision sought to be questioned is lawful and unless the courts, in the event of a challenge, have sufficient information to determine that lawfulness. How that general principle may impact on the facts of an individual case can be dependant on a whole range of factors, not least the type of decision under question, but also, in the context of the issues with which this Court is concerned on this appeal, the particular basis of challenge. In some cases the material on which a challenge might be considered may be obvious. Where, for example, the challenge is based on a suggestion that the relevant decision maker did not have jurisdiction at all, it will, at least in the majority of cases, be possible to assess that question by reference to a comparison between the decision made and its scope on the one hand and the law (whether statute or otherwise) conferring the decision making power on the other. Where the challenge is based on the process or procedures followed then, again in the majority of cases, any party having standing to challenge the decision will have participated in the process (or will be able to point to an arguably unlawful exclusion) and will be likely to be well familiar with what happened and thus able to assess whether there is any legitimate basis for challenge.6.9 However, where the possible basis for challenge is concerned with the decision making itself then there is the potential for a greater deficit of ready information. Where the possible basis for challenge is founded on an absence of the correct question being addressed, incorrect considerations being applied or an irrational decision, any party wishing to assess the lawfulness of the decision will need to know something about the decision making process itself. While, as already pointed out, this is not a “reasons” case per se nonetheless the underlying rationale for the case law on the need to give a reasoned but not discursive ruling, while not strictly speaking applicable, seems to me to have a bearing on a case such as this where the issue is as to whether the decision maker addressed the correct question. White & Anor. v. Dublin City Council & Ors. [2004] 1 I.R. 545, is a good example of a case in which a decision was quashed because the decision maker asked himself the wrong question. The case concerned a question as to whether a revision to a planning application required to be re-advertised. Fennelly J. found that the decision maker had, in reality, asked himself whether planning permission should be granted rather than whether some members of the public might reasonably wish to object to the plans as modified. It is clear from the judgment that the court had available to it sufficient materials to enable an analysis to be conducted as to the question addressed by the decision maker.6.10 However, if a person affected does not have any sufficient information as to the question which the decision maker actually addressed then it surely follows that that person’s constitutional right of access to the courts to have the legality of the relevant administrative decision judicially reviewed is likely to be, in the words of Murray C.J. in Meadows, ‘rendered either pointless or so circumscribed as to be unacceptably ineffective’.”Justice Kearns stated that he was “satisfied that the decision to dismiss the applicant herein was within the power of the Commissioner as the appropriate authority pursuant to the Act of 1997, the Act of 2005 and the Code. I am further satisfied that the process leading up to the decision to dismiss the applicant did, in fact, comply both with fair procedures and with the procedural rules laid down by the Code and the relevant Acts mentioned above”.Justice Kearns also noted that the Commissioner’s decision to dismiss the applicant was due to the fact that the applicant had pleaded guilty to a criminal offence.  He further stated that “The applicant was never in any doubt and could never have been in any doubt as to the reason for the Commissioner’s decision”. He further stated that in accordance with the Code and the relevant Acts that the Board’s view was a mere recommendation and that it was always open to the Commissioner to take a different view regarding the applicant. In respect of the remedy sought of certiorari, Justice Kearns noted that this was a discretionary remedy and that in considering the exercise of its discretion, a court must consider whether there is an alternative remedy available to the applicant. He referred to the decision in  O’Donnell v. Tipperary (South Riding) County Council [2005] IESC 18 [2005] 2 I.R. 483 Denham J. in this regard and Buckley v. Kirby [2000] 3 I.R. 431. The High Court noted that the applicant was not precluded from taking the alternative option of unfair dismissal and that “the Employment Appeals Tribunal in considering the applicant’s claim in relation to unfair dismissal, will require that the Commissioner establish, not only that he had substantial grounds justifying the applicant’s dismissal, but, also that he followed fair procedures before such dismissal”.In conclusion Justice Kearns refused to grant the relief sought.

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