Donohue v Revenue Commissioners
| Jurisdiction | Ireland |
| Judge | Mr. Justice Blayney |
| Judgment Date | 01 January 1993 |
| Neutral Citation | 1992 WJSC-HC 3428 |
| Court | High Court |
| Docket Number | No. 85 J.R./1992,[1992 No. 85 J.R.] |
| Date | 01 January 1993 |
1992 WJSC-HC 3428
THE HIGH COURT
BETWEEN
AND
Citations:
INSPECTOR OF TAXES ASSOCIATION V MIN FOR PUBLIC SERVICE & AG 1986 ILRM296
O'BRIEN V BORD NA MONA 1983 IR 255
MCCLELLAND V NI GENERAL HEALTH BOARD 1957 2 AER 129
CIVIL SERVICE REGULATION ACT 1956 S17
HOGAN & MORGAN ADMINISTRATIVE LAW IN IRELAND 2ED 92
DUGGAN V AN TAOISEACH & ORS 1989 ILRM 710
COUNSEL OF CIVIL SERVICE UNIONS V MIN FOR THE CIVIL SERVICE 1985 AC 374
Synopsis:
CIVIL SERVANT
Duties
Change - Customs - Dog handler - Appointment - Duration - Uncertainty - Appointment terminated after seven years - Assistant officer liable to be directed to various duties - (1992/85 JR - Blayney J. - 30/7/92) - [1993] 1 I.R. 172
|Donohue v. Revenue Commissioners|
EMPLOYMENT
Termination
Fairness - Civil servant - Appointment - Duration - Uncertainty - Customs and excise - Assistant officer - Appointment as dog handler - Whether creation of new office or assignment to new duties - Temporary assignment to new duties only - Assistant officer liable to be directed to various duties - No legitimate expectation of permanent post - (1992/85 JR - Blayney J. - 30/7/92) - [1993] 1 I.R. 172
|Donohue v. Revenue Commissioner|
Judgment of Mr. Justice Blayney delivered the 30th day of July 1992.
The Applicant is an Assistant Officer of Customs and Excise. He seeks by way of Judicial Review an Order of Certiorari quashing a decision of the Revenue Commissioners terminating his assignment to the post of Dog-handler on the ground that it was unreasonable and oppressive and that it was also ultra vires. He seeks in addition certain consequential declarations and injunctions.
The application was heard on Affidavit. The main facts appearing from the Affidavits are as follows. The Applicant was appointed by the Revenue Commissioners as an Assistant Officer of Customs and Excise on the 15th April 1980. He had previously been a Clerical Officer in the Office of the Board of Works. After an initial probationary period he was made permanent. He served in a number of different stations as an unattached Officer before being appointed to a permanent post in Swanlinbar, Co. Cavan, in early 1983.
The Applicant got married in September 1983. In the following year the Revenue Commissioners invited applications from Assistant Officers of Customs and Excise for appointment as a "Dog-handler" in the Customs and Excise Service. As the form of the Circular inviting applications is central to the Applicant's case, I set it out in full:
"8 Mean Fomhair 1984."
Circular E4249.
Vacancy for a Dog-handler in the Customs and Excise Service.
A Chara,
I am directed by the Revenue Commissioners to invite applications from Assistant Officers of Customs and Excise who wish to be considered for appointment as a "Dog-handler" in the Customs and Excise Service.
It is desirable that the Officer, to be appointed, should be healthy and active. Applicants should
(a) have a liking for dogs and be compatible with them.
(b) have an aptitude for detective work.
(c) have a good working knowledge of the duties of the grade.
(d) be the holder of a full current driving licence. Selection will be by interview.
The successful candidate will undergo a period of training with the dog in drug detection. This training will be conducted by An Garda Siochana in Dublin. On completion of training the handler and dog will be assigned to the Investigation Branch for duties as directed by the Surveyor there. These will include driving. An official van will be provided.
Assistant Officers at present serving in the Investigation Branch (and those on the panel for appointment to the branch) must take application under this Circular if they wish to be considered for this new post.
The allowance ordinarily paid to Assistant Officers serving in the Investigation Branch will be paid under the usual conditions. The current annual allowance is £1,165. In addition to the annual allowance a "daily" allowance of £7.16 will be payable for each day of actual employment on investigation duties.
The hours of employment of the investigation staff are irregular and often prolonged and the Officer appointed must be prepared to give his/her services by night and day including Sundays and public holidays as and when required.
The Officer appointed as "Dog-handler" will be required to live in Dublin, and will be responsible for the care and well-being of the dog which will normally be kennelled at the Officer's home. A kennel will be provided. Maintenance and veterinary expenses will be met by the State.
Applications should be submitted through Superior Officers so as to reach Personnel Branch not later than 28th September 1984. In transmitting the applications Collectors should report as to the suitability of each Applicant for appointment, special regard being paid to the above mentioned qualifications. A Form E8 giving details of sick leave since 1st June 1980 in respect of each Applicant should be forwarded.
Mise le meas
T.C. Rigney
Director of Establishments."
In his Affidavit the Applicant draws attention to the fact that the appointment is referred to in the Circular as "this new post" and avers that as no time limitation was attached to the post he construed it as being a permanent appointment. He refers also to a previous Circular in April 1983 inviting applications from Officers and Assistant Officers for vacancies in the Investigation Branch in which the allowance paid was stated to be temporary and in which it was also stated that Officers appointed would not normally be retained in the Investigation Branch for a period exceeding seven years.
The Applicant applied for the appointment and his application was successful. He received a letter dated the 5th March 1985 informing him of this:
"5th March 1985
A Chara,
I am directed by the Revenue Commissioners to inform you that they have ordered your appointment with effect from 11th February 1985 as an Assistant Officer of Customs and Excise in the Investigation Branch, subject to the provisions of Circular E4249.
Payment of the allowance will be subject to your signing the enclosed form of acknowledgment, which should be return to the Principal, Personnel Branch.
Miss le meas
Director of Establishments."
The Applicant was unhappy with the wording of the letter as it did not refer to the position of Dog-handler and he claimed also that it was not in the form of the Circular E4249. He informed the Revenue Commissioners of this and as a consequence they wrote to him again:
"16th Aibrean 1985.
A Chara,
I am directed by the Revenue Commissioners to refer to their letter of 5th Marta 1985 and to inform you that your appointment in the Investigation Branch is as a Dog-handler, under the terms of Circular E.4249.
I am also to remind you that the formal acknowledgment enclosed with the letter of 5th Marta 1985 has not been received in this Office. Please forward same as a matter of urgency.
Miss le meas
P. O'Shaughnessy
For Director of Establishments."
The form of acknowledgement which had been enclosed with the Revenue Commissioners" letter of the 5th March 1985 was as follows:
I acknowledge that on cessation of the work in the Investigation Branch in respect of which the allowances are authorized or on my ceasing otherwise to perform that work, the allowances will cease and I will have no claim to their continuance in whole or in part or to any advance in substantive salary in recognition of the work for which the allowances are granted or in consideration of the cessation of the allowances.
The Applicant never signed this acknowledgment. Having taken up his new position, he wrote to the Personnel Section of the Revenue Commissioners:
"Personnel Section.
I wish to inform you that I have taken up duty as a Dog-handler in the Customs and Excise Investigation Branch on 5th March 1985.
Paul Donohue."
The letter is not dated but has on it the stamp of the Customs and Excise Investigation Branch which is dated the 22nd November 1985.
The Applicant performed extremely well in his new position. On two occasions, on the 20th July 1988 and the 26th March 1992 he received a letter from the Revenue Commissioners commending him for his application to duty which resulted in the seizure of a quantity of illegally imported drugs.
In July 1991 the Applicant received the following letter from the Revenue Commissioners:
"7th July 1991
Dear Mr. Donohue,
I am directed by the Revenue Commissioners to inform you that it is intended to terminate your appointment to the Customs and Excise Investigation Branch with effect from 1st March 1992.
This has arisen from the Commissioners" intention to make arrangements for the replacement of drug detector dog "Caesar" and to appoint a new Dog-handler to work with the replacement dog. The position of Dog-handler will be advertised in the normal manner in the near future.
You will be advised of arrangements for taking up duty on 1st March in due course.
Yours sincerely,
Rosemary Tiernan
Personnel Branch."
The Applicant replied by letter dated the 16th July 1991:
"Dear Ms. Tiernan,"
I acknowledge receipt of your letter of 9th July 1991 informing me of an intention to terminate my appointment in the Customs and Excise Investigation Branch with effect from 1st March 1992 due to the Commissioners" intention to make arrangements for the replacement of the dog "Caesar" and to appoint a new Dog-handler to work with the replacement dog, the position to be advertised in the near future.
I am utterly perplexed at this information and I would appreciate if you would
(1) advise me as a...
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