Gannon -v- Minister for Defence & Ors, [2005] IEHC 293 (2005)

Docket Number:2005 2659 p
Party Name:Gannon, Minister for Defence & Ors
Judge:Peart J.

Neutral Citation Number: [2005] IEHC 293THE HIGH COURT Record Number; 2005 No. 2659PBetween:Malcolm GannonPlaintiffAndThe Minster for Defence, Ireland and The Attorney GeneralDefendantsJudgment of Mr Justice Michael Peart delivered on the 15th August 2005:This is an application for an interlocutory injunction pending the determination by the Court as to whether certain declarations ought to be made, and damages awarded in circumstances where the defendants are alleged by the plaintiff to have acted unlawfully, in breach of the plaintiff's statutory contract of employment, ultra vires the Defence Forces Regulations and in breach of the principles of natural and constitutional justice in or about the purported discharge of the plaintiff from the Defence Forces on the 26th July 2005.Following the purported discharge, the plaintiff has not been in receipt of any salary, and nor has he any other source of income, save Social Welfare Benefit. He has a partner and one small child to support.The plaintiff left school after completing his Intermediate Certificate examination, and joined the Armed Forces at the age of 19 years in August 2001 for a fixed term of five years. That period can be extended in certain circumstances. In July 2005, just one year short of the expiration of that five year term of service, the plaintiff was discharged from the force, and the reason for the discharge is that which appears at paragraph 58(r) of the Defence Force Regulations A10, namely "his services being no longer required". The "Special Instructions" contained in these Regulations relating to this reason for a discharge state:"Applies only in the case of - (i) a man whose discharge is clearly desirable in the interests of the service and in whose case no other reason for discharge is possible, or(ii) ………(iii) ………Where the grounds on which the application for discharge is based so warrant and where it will benefit the individual concerned to do so, the reason for discharge may be suitably amplified."A discharge under Regulation 58(r) is a discreditable discharge, ameliorated perhaps if there is some reason for discharge is given by way of amplification, but for the purposes of this case there is no such amelioration. He has received a discreditable discharge on the basis that his services are no longer required, and it is contended by the defendants that there exists no other reason for his discharge. There is little doubt that this form of discharge is one which casts the plaintiff in a poor light as far as any future prospects of employment are concerned, if a prospective employer were to make appropriate enquiries, hence presumably the proviso that if there is any other reason for discharging a soldier it must be used rather than Regulation 58(r). For example, and it is relevant in the present case according to the plaintiff, a soldier can be discharged under Regulation 58(p) which provides for discharge if the soldier is "below Defence Forces medical standards". The special instructions applicable to this regulation states:"A man will be discharged under this subparagraph only when recommended as being medically unfit for service in the Defence Forces by a Medical Board. Where a man is in a civil hospital or sanatorium or otherwise not located at a military centre, the Certificate of Service will be sent by registered post so as to reach the man on or before the date of his discharge."In other words, even in the case of a man whose services are no longer required in accordance with Regulation 58(r), and who is also medically unfit as recommended under Regulation 58(p), he must be discharged under the latter regulation rather than the former.The plaintiff says in his grounding affidavit that as a result of "certain experiences" (unspecified) during his time in the army he developed "a social anxiety disorder", and that he was referred by the Army Medical Officer, Commandant Murphy, to Dr John Quinn, a Psychiatrist in Kildare for treatment for that condition and received medication also. He says that as a result of that condition, of which the army was aware from its own records, he was absent on certified sick leave over the months of May, June and July 2005. He states that he was due to return to duties on the 25th July 2005 but that about three weeks prior to that date he was called to the Curragh Camp to attend before his Commanding Officer. He believed that this was so that he could be given his annual report, but in fact he was told at that meeting by Commandant Prendergast that he would...

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