Gaughan v Haughey
| Jurisdiction | Ireland |
| Judgment Date | 05 October 1998 |
| Neutral Citation | [1998] IEHC 144 |
| Date | 05 October 1998 |
| Docket Number | No. 82 ???/1992 |
| Court | High Court |
[1998] IEHC 144
THE HIGH COURT
BETWEEN
AND
Citations:
CIVIL SERVICE REGULATION ACT 1956 S9
Synopsis
Judicial review; fair procedures; applicant dismissed from prison service for chronic absenteeism; whether fair procedures were adopted in reaching the decision to dismiss applicant; whether applicant was given an adequate opportunity of making representations regarding the dismissal; whether in reaching the decision to dismiss, documents were considered which had not been disclosed to the applicant; whether there had been a failure to disclose adequate reasons for the dismissal Held: Application dismissed Gaughan v. Haughey (High Court - Carroll J. - 05/10/1998)
Where the applicant over the years never queried the accuracy of his sick leave record there was no necessity to have any oral hearing, preliminary or otherwise. The respondent’s decision to dismiss the applicant from the civil service was factually sustainable and the criteria applied were reasonable. The practice of including rest days which occurred during a period covered by a medical certificate as being days on sick leave was in accordance with the general practice in the civil service, within the terms of his employment and the relevant circulars. There was nothing unfair about it. There were minor discrepancies in the record for which an adequate explanation was supplied. The applicant was given an adequate opportunity to furnish explanations or make representations. It was not true that the factual basis on which the dismissal was based was not disclosed to the applicant. Any reasonable person would have realised that the kind of sick leave record which the applicant had was unacceptable. The High Court so held in dismissing the application.
The Applicant joined the prison ser???
He was dismissed by the Government ??? absenteeism on 16th July, 1991.
The Applicant brought Judicial Review proceedings and was given liberty by Order dated 24th February, 1992 to apply for Certiorari or alternatively a Declaration that the Applicant's removal was null and void, and for damages.
1. The Respondents failed to comply with the principles of constitutional justice and natural justice in reaching the said decision and in particular:-
(i) failed to give the Applicant an adequate opportunity of dealing with, and making a reply to the reason or reasons for the said dismissal;
(ii) failing to disclose to the Applicant the factual basis which was alleged justified his dismissal;
(iii) failed to give the Applicant an adequate opportunity of rebutting the factual matter which it was alleged justified his dismissal;
(iv) in reaching the said decision took into account documents and matter which had not been disclosed to the Applicant; and
(v) failed to disclose to the Applicant any or any proper and adequate reasons for the said dismissal.
To this was added by Order dated 11th January, 1996 that the Applicant was denied his constitutional right to fair procedures in that he was denied the right to cross examine persons giving adverse evidence against him.
Following the granting of leave to bring judicial review proceedings. discovery was made and several supplementary affidavits were filed. A hearing commenced on 11th January, 1996 and was adjourned on 12th January to enable further discovery to be made. More affidavits were filed and the proceedings were ultimately resumed on 19th January, 1998.
In his grounding affidavit, the Applicant exhibits his sick leave record. He also states that during his career he received a number of warnings from the Department of Justice concerning his sick leave and warning him that his job was at risk. He said he had not retained the warnings other than the one dated 15th December, 1988 which he exhibits.
In the replying affidavit filed on behalf of the State, Brain Purcell exhibits several written warnings to the Applicant from the Department in 1983, 1984, 1985 (three warnings) 1988 and 1991. These are as follows:-
1983 - 21 days (9 absences to date).
He was warned of the need for an immediate and sustained improvement in his sick absence record with particular emphasis on the number of occasions on which he availed of sick leave.
(2) The letter of 23rd November, 1984 refers to an excessive sick leave record over the past three years despite a warning:-
1984 - to date 52 days (8 absences).
He was told the Chief Medical Officer had indicated that his sick leave record did not suggest he had a health problem and that his suitability for retention was doubtful. He was accordingly warned that unless his attendance record improved his job would be at risk.
(3) The letter of 22nd February, 1985 refers to the warnings sent on 23rd November, 1984. It states that a printout analysis of his absences shows that he frequently went sick at bank holiday time. Even allowing for operations his record was unsatisfactory.
(4) The letter of 12th July, 1985 refers to the warnings issued on 23rd November, 1984 and 22nd February, 1985 in connection with his unsatisfactory sick leave record. It was noted that his record had not improved in the meantime. Consequently, the question of his suitability for retention was under consideration. He was informed that if he had a health, domestic or personal problem which was affecting his ability to give regular and effective service, he should make it known in confidence to the Governor without delay and that would be taken into account when his case was being considered.
(5) The letter of 5th August, 1985 referred to the warnings of 9th August, 1983 23rd November, 1984, 22nd February, 1985 and 12th July, 1985. He was held the Chief Medical Officer had indicated that his record did not suggest that he had a health problem. In view of this and his failure to respond to the minute of 12th July, 1985 his problem would appear to be one of absenteeism. He was informed that it was not proposed to pay him for any further absenteeism and any future absences would be carefully scrutinised to determine whether sick leave with or without pay was appropriate in any given case. He was also informed that not only was it not proposed to pay him for any further absenteeism but that unless he effected a complete reversal in his appalling attendance records it would be recommended to the Minister that he dispense with his services. He was told this was a final warning and should be taken as such.
(6) In the letter of 15th December, 1998 he was told that he would not be paid for sick leave on 21st November and 3rd to 5th December, 1988. He was also told he could appeal against the sanction. He was put on notice that his services were deemed to be unsatisfactory due to excessive sick leave record over the past years:-
1984 - 26 days (10 absences) (excluding 40 days for cartilage operations)
He was again told the Chief Medical Officer did not suggest he had a health problem. He was warned that consideration would again be given to his dismissal unless he effected a complete reversal in his attendance record.
(7) In the letter of 13th February, 1991 he was informed that the Minister for Justice had decided to recommend his dismissal to the Government because of his chronic absenteeism. It referred to the warnings in 1983, 1984, 1985, and 1988. The letter states there had been no improvement and his record remained unacceptable. In the last ten years he had 110 separate periods of absence - a total of 358 days: In the last four years he had 40 separate periods of absence - a total of 162 days (= an average of 10 periods of absence and 40 days a year). In the last year he had eight periods of absence - a total of 69 days. In order to afford him an opportunity of furnishing any explanation or making any representation he wished to offer or make, the Minister would not take any further action for a period of 14 days. He got an extension to this period.
The Applicant wrote on 6th March, 1991 in reply to this letter asking that the Minister would consider a number of points which he wished to make in relation to his sick absence record. He said injuries sustained as a result of his involvement in rugby and GAA had been a significant factor in his sick leave record. He had now discontinued his involvement in both GAA and rugby.
He said about one-third of the total number of sick days were related to treatment received in various hospitals, both in-patient and out-patient. He gave as examples:-
From 13/10/1980 to 26/10/1980 - assault.
From 27/ 2/1984 to 9/ 3/1984 - due to an knee injury sustained in a rugby match.
From 18/8/1984 to 14/9/1984 - related to a knee injury.
From 12/6/1985 to 18/6/1985 - ankle injury.
From 27/12/1988 to 6/ 1/1989 - ankle.
From 30/12/1989 to 6/ 2/1990 - surgery to his hand.
From 31/8/1990 to 17/9/1990 - back problem (muscular spasm).
He said he fully appreciated that his sick absence record was unacceptable. He asked to be afforded an opportunity to effect a vast improvement in his sick absence record.
The Prison Officers Association also made representations in a letter dated 12th March, 1991 to the Minister in which Mr. Denis McGrath, the General Secretary, states that the Applicant's sick leave is very high and difficult to explain. He makes...
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