Ahern v Minister for Industry and Commerce (No. 2)

• Jurisdiction: Ireland
• Judgment Date: 01 January 1991
• Date: 01 January 1991
• Docket Number: [1987 No. 251 J.R.]
• Court: High Court

Ahern v. Minister for Industry and Commerce (No. 2)

Michael Ahern

Applicant

and

The Minister for Industry and Commerce

and The Controller of Patents, Designs and Trademarks

Respondents (No. 2)

[1987 No. 251 J.R.]

High Court

Employer and employee - Suspension - Validity - Natural justice - Employee requested to attend psychiatrist - Refusal to attend - Employee placed on paid compulsory sick leave pending his furnishing a psychiatric opinion - No evidence of employee's psychiatric condition - Whether employer acted in breach of rules of natural justice.

Judicial review - Certiorari - Availability of remedy - Employee requested to attend psychiatrist - Refusal to attend - Employee placed on paid compulsory sick leave pending his furnishing a psychiatric report - No evidence before employer as to psychiatric condition of employee - Subsequent return to work by employee - Whether decision of employer judicially reviewable - Whether unreasonable behaviour of employee disentitled him to discretionary relief - Whether order of certiorari would confer any benefit on employee - Discretion of court.

The applicant was a senior examiner in the Patents office. Disciplinary procedures were instituted against him by his superior officer in respect of an alleged serious breach of discipline. In view of the history of the applicant's previous behaviour, the personnel officer of the Department of Industry and Commerce (which was his employer) decided to refer the matter for consideration by the chief medical officer of the Civil Service; accordingly he sent to the medical officer reports on the applicant from the second respondent and the two principal officers of the Patents Office. The medical officer advised that the opinion of a psychiatrist was required and that, if the applicant refused to attend, a direction to do so on pain of suspension should be made.

The applicant initially agreed to attend a psychiatrist but then changed his mind and refused on the grounds that the Department would not pay his fees if he attended the psychiatrist of his choice. The chief medical officer advised that the applicant should be placed on compulsory sick leave until such time as he was certified by a psychiatrist as fit for full duties. This was done by the applicant's personnel officer, pursuant to a direction made by the first respondent. The applicant then agreed to attend a psychiatrist of his choice, whose opinion was that he was not suffering from any psychiatric disorder; this opinion was supported by a second psychiatrist nominated by the chief medical officer. The applicant was accordingly instructed to return to work, which he did.

On the applicant's application by way of judicial review for an order of certiorari quashing the decision of the first respondent to have him placed on compulsory sick leave, it was

Held by Blayney J., in refusing the application, 1, that the decision to have the applicant placed on compulsory sick leave, notwithstanding that he had remained on full pay, was susceptible to judicial review since it had affected his right to work.

2. That the applicant had established grounds on which it would be open to the court to quash the decision, since it had been made on the advice of the chief medical officer without the officer having examined the applicant or having obtained any psychiatric opinion, and also since it had been based on reports made by the applicant's colleagues of the existence of which the applicant had been unaware.

3. That the applicant's initial refusal to attend a psychiatrist and his subsequent claim to the court that the allegations made against him were motivated by bad faith were both unreasonable.

4. That an order of certiorari quashing the decision made by the first respondent would be of no benefit to the applicant, since there was no evidence that the fact that he had been placed on sick leave would prejudice his future career.

5. That, in view of the unreasonable attitude adopted by the applicant and the fact that certiorari would not confer any benefit on him, the court should, in its discretion, refuse to make the order sought.

Cases mentioned in this report:—

R. (Wexford County Council) v. Local Government Board [1902] 2 I.R. 349; (1901) 35 I.L.T.R. 87; (1901) 1 N.I.J.R. 149.

The State (Abenglen Properties Ltd.) v. Corporation of Dublin [1984] I.R. 381; [1982] I.L.R.M. 59.

Judicial Review.

The facts have been summarised in the headnote and appear in the judgment of Blayney J., post.

On the 31st July, 1987, the applicant applied to the High Court (MacKenzie J.) and was granted leave to apply, by way of application for judicial review, for an order of certiorari quashing the decision made by the first respondent on the 6th February, 1987, to place the applicant on compulsory sick leave.

The applicant's application, by notice of motion dated the 4th September 1987, was heard by the High Court (Blayney J.) on the 30th and 31st May, 1990.

Cur. adv. vult.

Blayney J.

The applicant is a civil servant holding the position of senior examiner of patents in the Office of the Controller of Patents. He entered the Civil Service in 1971 as an examiner of patents and was promoted to be a senior examiner in December, 1974. In 1986 his immediate superior was Mr. Brian O'Farrell, one of the two principal examiners.

On the 16th October, 1986, the applicant found on Mr. O'Farrell's desk, Mr. O'Farrell being absent, a copy of a confidential report by Mr. Patrick Slavin, the other principal examiner, to Mr. Paul Bennett, the personnel officer of the Department of Industry and Commerce, the Patents Office being a section of that Department. The subject of this report was the examination output of each of the examiners during the four week period ending on the 3rd October, 1986. The applicant had been informed by Mr. Seán Fitzpatrick, the Controller of Patents, in a minute of the 2nd October, 1986, that such...