O'Gorman v Minister for Justice and Others
| Jurisdiction | Ireland |
| Judge | Justice Roderick H. Murphy |
| Judgment Date | 25 July 2000 |
| Neutral Citation | [2000] IEHC 139 |
| Court | High Court |
| Docket Number | No. 258 JR/1999 |
| Date | 25 July 2000 |
BETWEEN
AND
[2000] IEHC 139
THE HIGH COURT
Synopsis:
Administrative Law
Administrative; judicial review; dismissal from employment; natural justice; delay in application for leave to apply; applicant was a probationary prison officer; probationary period extended to a third year due to unsatisfactory punctuality record; applicant received injuries to his right hand from a hypodermic needle while on duty; suffered post traumatic stress disorder; dismissed immediately prior to termination of third year; applicant seeks order of certiorari; whether delay in application for leave to apply was justifiable; whether applicant was made aware of the reasons for his dismissal; whether decision to dismiss was made without notice to him; whether respondent was entitled to look at the health, conduct and efficiency of the applicant to ascertain whether the appointment should be terminated; whether natural justice was afforded to the applicant in relation to the decision to terminate; s. 7, Civil Service Regulation Act 1956, as amended.
Held: Application refused.
O' Gorman v The Minister for Justice, Equality and Law Reform - High Court: Murphy J. - 25/07/2000
The applicant had been a probationary prison officer for almost three years. The applicant had been dismissed by reason of an unsatisfactory punctuality record. The applicant claimed certain injuries received whilst on duty contributed to him suffering from post traumatic stress syndrome. The applicant claimed that he had not been afforded an opportunity to respond to the decisions taken in regard to his position. The applicant also claimed that defective procedures had been utilised in dismissing him. Murphy J was satisfied that the applicant’s application could be heard despite being out of time. The applicant had been given ample opportunity to comply with the warnings issued regarding his work practices. The application would be dismissed.
Citations:
R V STRATFORD-UPON-AVON DISTRICT COUNCIL EX-PARTE JACKSON 1985 1 WLR 1319
O'DONNELL V DUN LAOGHAIRE CORPORATION 1991 2 ILRM 301
INGLE V O'BRIEN 109 ILTR 7
MORAN V AG 1976 IR 400
MCDONAGH V MIN FOR DEFENCE 1991 ILRM 115
GAMMELL V DUBLIN CO COUNCIL 1983 ILRM 413
DUFFY, STATE V MIN FOR DEFENCE 1979 ILRM 65
MCGARRITY, STATE V DEPUTY GARDA COMMISSIONER 1978 112 ILTR 25
FLANAGAN V UNIVERSITY COLLEGE DUBLIN (UCD) 1988 IR 724
DALY, STATE V MIN FOR AGRICULTURE 1987 IR 165
CIVIL SERVICE REGULATION ACT 1956 S7
HYNES V GARVEY 1978 IR 174
WHELAN V MIN FOR JUSTICE 1991 2 IR 241
CIVIL SERVICE REGULATION (AMDT) ACT 1958 S3
delivered the 25th day of July, 2000.
The Applicant, Peter O'Gorman, was at all material times a probationary prison officer having been appointed on the 13th March, 1995. His probation was renewed for a third year. Immediately prior to the termination of that third year the Applicant was dismissed on the 12th March, 1998.
By order of the High Court (Mr. Justice McCracken) made the 12th day of July, 1999 the Applicant was granted leave to apply for Judicial Review by way of an order of Certiorari. The said order was granted without prejudice to the Respondent's right to raise the question of delay.
The question of delay was raised before this Court by way of preliminary issue.
It was submitted on behalf of the Applicant that, notwithstanding the provisions of Order 84, leave was sought and obtained as above 16 months after the decision which it is sought to review.
The Applicant says that the reasons for this delay, as set out in his grounding affidavit, was that he himself was unaware of the causes for the events relied upon in dismissing him until he was diagnosed as suffering from post traumatic stress disorder. This arose, he said, following certain occupational incidents. The diagnosis of the disorder was made on the 15th June, 1998 some three months after his dismissal.
He says, in paragraph 20 of his affidavit, that in view of his personal circumstances he was unable to prosecute the application from his own resources, had sought and obtained legal advice through the offices of the Prison Officers Association and had to wait a further 6 months before a decision was taken whether or not to provide him with assistance to make this application.
Mr. Anthony Collins B.L. on behalf of the Applicant submitted that there was a perfectly legitimate excuse for delay which was justifiable; the delay did not prejudice the Respondents. He relied, among other authorities, onR. -v- Stratford-upon-Avon District Council ex parte Jackson (1985) 1 W.L.R. 1319 where the period of time before a legal aid certificate was issued was ignored by the Court in computing delay.
Mr. Patrick Keane S.C. on behalf of the State, opposed the application on the basis of authorities requiring Judicial Review applications to be made promptly and within clearly defined time limits unless there were compelling reasons for the Court to extend such time limits. Mr. Keane referred toO'Donnell -v- Dun Laoghaire Corporation (1991) 2 I.L.R.M. 301 wherein an objective test was held to apply (at 315):
"however, in considering whether or not there are good reasons for extending the time I think it is clear that the test must be an objective one and that the Court should not extend the time merely because an aggrieved Plaintiff believed that he/she was justified in delaying the institutional proceedings. What a Plaintiff has to show (and I think the onus under Order 84 Rule 21 is on the Plaintiff) is that there are reasons which both explain the delay and forward a justifiable excuse for the delay. There may be cases, for example, where third parties have acquired rights under an administrative decision which is later challenged in a delayed action."
In relation to the reasons given for the delay that the Applicant was unable to prosecute the application from his own resources and had to await a decision for assistance to make the application the passage inO'Donnell at page 317 is relevant:
"the evidence of the Plaintiff was to the effect that he did not realise that he could pursue his complaint through the Court, that he could not afford legal advice, that over a four year period he had written many letters to the Department, to local members of Parliament and to successive Ministers for Defence. On these facts it was concluded that the Applicant had not disentitled himself by his delay to the remedy he sought… I think therefore that his efforts to settle the dispute through the intervention of public representatives established that there is a reasonable explanation as to why between June 1988 and July 1989 he did not institute these proceedings."
While, in this case, the Applicant did not seek redress other than through the Prison Officer's Association, I found that he had a justifiable excuse for delay and, accordingly, granted the Applicant the extension sought.
The Applicant was dismissed because he had an unsatisfactory punctuality record. The Applicant's main ground for challenging his dismissal is on the grounds that he was given no opportunity to make his case prior to the decision of the 12th March, 1998 and that such decision was taken without notice to him.
Further grounds relating to the failure to afford the Applicant the benefit of the procedures taken in the Prison Disciplinary Code for Officers Rules of 1996 were not relied upon.
On behalf of the Applicant it was submitted that in his first year (1995–1996) he was late on 4 occasions and sick for 3 days, one of which was certified.
Towards the end of his first year, on the 6th March, 1996 he was involved in an incident where he was bitten by a prisoner and, on the 3rd January, 1997 towards the latter part of that second year he was traumatised in coming to the assistance of an attempted suicide.
In the second year he was late on 37 occasions and sick on 7 days, 2 of which were certified. As a result of this he lost the privilege of taking uncertified sick leave. He also received a letter of warning on 10th March, 1997. He had previous warnings on the 4th of October, 1996 and the 4th of February, 1997.
As a result his probationary period was extended to a 3rd year up to the 13th of March, 1998. The reason given for this, in a letter dated the 10th March, 1997 from Ms. Brid McGovern, Prison's Personnel, was his poor punctuality record. The letter concluded by stating that his record would be closely monitored in the coming year and that if there was not a complete turn around in his attendance record the Minister would have no option but to terminate his employment.
A report on 27th August, 1997 by the Deputy Governor indicated that he continued to perform his duties to the satisfaction of his superiors and that his punctuality record had shown a considerable improvement. At that stage the Deputy Governor recommended that his appointment be confirmed on the basis of his performance and probation.
On November, 19th 1997 the Applicant, in the course of searching a cell while on duty, received a number of puncture wounds to his right hand from an uncovered hypodermic needle concealed in a prisoner's clothing. He was referred to a Department Psychologist. A claim was made in respect of this incident on behalf of the Applicant by a different firm of Solicitors than the Applicant's present Solicitor on 21st November, 1997.
On November, 28th 1997 the Applicant attended Dr. Fakih complaining of stress and agitation and again attended on two further occasions.
There are two short letters from Dr. Fakih dated the...
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