Garvey v Ireland

• Jurisdiction: Ireland
• Judge: Mr. Justice McWilliam
• Judgment Date: 01 January 1979
• Neutral Citation: 1978 WJSC-HC 2335
• Court: High Court
• Docket Number: No. 981 P./1978
• Date: 01 January 1979

GARVEY v. IRELAND

AFFIRMED SUPREME:9.3.79

EDMUND GARVEY

.v.

IRELAND

AN TAOISEACH AND THE MINISTERS OF STATE

and

THE ATTORNEY GENERAL

1978 WJSC-HC 2335

No. 981 P./1978

HIGH COURT

1 Judgment of Mr. Justice McWilliamdelivered the l3st day of October, 1978.

2 The Plaintiff, who had a long career in the Garda Siochana, was appointed Commissioner by the Government on 2nd September, 1975. He was peremptorily dismissed on 19th January, 1978. A number of matters were alleged in the statement of claim but no evidence has been given before me and I do not propose to refer to them except to comment that the general traverse by which they are denied is inadequate.

3 The Defendants rely on the provisions of subsection (2) of section 6 the Police Force Amalgamation Act, 1925, and claim that, the Plaintiff having accepted office in accordance with the terms of this subsection, is bound by it and, under it, the Government, in terminating his appointment, is not required to give prior notice of or give the reasons for such termination or to afford any opportunity to make representations in relation thereto.

4 Subsection (2) of Section 6 of the 1925 Act, in so far as is relevant to these proceedings, reads as follows:-

"the Commissioner of the amalgamated force shall from time to time be appointed by the Executive Council, and every Commissioner of the amalgamated force, ..... holding that office by virtue of this subsection .........may at any time be removed by the Executive Council".

5 The issues which have been raised on this hearing are:

6 1. whether the subsection conferred the powers of dismissal contended for by the Defendants, and

7 2. if so, whether the section,as operated, is repugnant to the provisions of the Constitution.

8 The statutory declaration set out in the Fourth Schedule to the Act and required to be made by all officers and other members of the force refers to the employment of such persons by the Executive Council and it is submitted that the use of this expression contemplated the relationship of master and servant existing. Whether any such conclusion can be drawn from the use of this expression or not, it appears to be a correct statement of the relationship between the Plaintiff and the State. See Attorney-General & Minister for Justice .v. D.U.T.C. Ltd (1939) I.R. 590; and Byrne .v. Ireland (1972) I.R. 241which explains an apparently contrary decision in Attorney-General.v. Ryan's Car Hire (1965) I.R. 642. If thereare no special terms in a contract of employment, the normal consequence of such a relationship is that the servant can only be dismissed for misbehaviour or on reasonable notice being given, and, in the case of dismissal for misconduct, the employee must be informed of the nature of the misconduct alleged and be given an opportunity to answer the allegations made against him. See State (Gleeson) .v. The Minister for Defence (1967) I.R. 280.

9 It is argued on behalf of the Defendants that subsection (2) of section 5 does contain such special terms by providing that "every Commissioner may at any time be removed by the Executive Council" as this must mean removal without any qualification, immediately and arbitrarily, and it is argued that this is a necessary incident of the office because the government of the day must have full confidence in the Commissioner and that it would be impossible to carry on satisfactorily if that confidence were lost and there were no power of instant dismissal. I am satisfied that there are other methods of meeting such a situation.

10 It is also emphasisad that the Act makes a distinction in the procedures for the removal of the Commissioner, Deputy Commissioners, Assistant Commissioners and Surgeon and the procedures for thedismissalof the members of the force not being above the rank of Chief Superintendent. The provisions in sections 6 and 7 with regard to the former are as...