Hynes v Garvey

JurisdictionIreland
JudgeHenchy J.
Judgment Date01 January 1978
Neutral Citation1977 WJSC-SC 827
Date01 January 1978
CourtSupreme Court
Docket Number[1976 No. 4212P],(207-1976)

1977 WJSC-SC 827

THE SUPREME COURT

Henchy J.

Griffin J.

Parke J.

(207-1976)
HYNES v. GARVEY
REVERSING HIGH-19.11.76
Brendan Mary Hynes
v.
Edmund P. Garvey
1

Judgment of Henchy J.delivered the 19th July 1977 (nem. diss.)

2

The plaintiff is a young man who joined the Garda Siochana in September 1974. He proceeded to do his initial thirteen weeks course of training at the Garda Training Centre at Templemore, Co. Tipperary. Having completed that, he was posted to the Garda station at Cabinteely, Co. Dublin. He served as a guard there from February 1975 until August 1976, when he was transferred to Blackrock, Co. Dublin. His career in the Force came to an abrupt end when on the 17 September 1976 the Commissioner of the Garda Siochana dispensed with his services from the 24 September 1976. The Commissioner considered that he "is not likely to become an efficient and well-conducted guard".

3

Feeling that his dismissal was unjustified, he brought proceedings in the High Court for an order condemning his dismissal as invalid. Afterobtainingan interim injunction restraining the Commissioner from dispensing with his services, he applied for an interlocutory injunction. The hearing of that application was treated as the hearing of the action. After giving the matter mature consideration, the Judge ruled that the order of dismissal was bad. The Commissioner now appeals from that decision.

4

On his first appointment, a guard is on probation for a period of two years: reg. 6 of the Garda Siochana (Appointments) Regulation 1945 (Amendment) Regulations, 1954. During that period of probation his services may be dispensed with by the Commissioner if he considers that he "is not fitted, physically or mentally, to perform his duties as such member or is not likely to become an efficient and well-conducted guard": reg. 9 of the Garda Siochana (Appointments) Regulations, 1945.

5

It is the latter portion of that regulation that the Commissioner invoked in this case. It is common ground that since the material on which the Commissioner formed the opinion that the plaintiff is not likely to become an efficient and well-conducted guard has beendisclosed,the test by which this case is to be decided is whether that material is capable of supporting the Commissioner's opinion.

6

It is obvious that the Commissioner is not required to reach his opinion after an assessment based on personal interview. That might not be possible having regard to the numbers involved. He must normally rely on the guard's dossier. That is what the Commissioner did in this case. The picture as he saw it led him to the opinion that the plaintiff is not likely to become an efficient and well-conducted guard. I turn therefore to the same material to see if that opinion was well-founded.

7

In fairness to the plaintiff I should point out that I am passing over the favourable opinions expressed by his superiors as to his merits as a probationer guard. This case is not directed to an examination of his merits. It is concerned solely with setting out his demerits as they appeared in his dossier and with determining whether they justify the opinion reached by the Commissioner.The Regulations vest this opinion-forming function exclusively in the Commissioner. We cannot reject his opinion because we would have reached the contrary opinion. We are confined to deciding whether the opinion he did form is supported by the documentary material he had before him when he made his order.

8

The relevant considerations before the Commissioner appear to me to have been the following:

9

I. In July 1976, approximately two months before the plaintiff's two-year period of probation was due to end, his superintendant reported thus to his chief superintendent about the plaintiff:

"Between 1. 1.1975 and 19.7.1976 the member had eight (8) certified periods of illness ranging from 2 days to nine days, total 34 days. Also eight (8) single uncertified days giving a total of 42 days which I consider to be excessive. As there was nothing that warranted an operation or some such understandable illness, consequently I request that he be examined by the Surgeon of the Force with a view to have a report on his general health and his suitability to appointment under that category."

10

It will be noted that when one takes into consideration his rest days, annual leave and sick leave, there is very little time left for duty to give a proper assessment."

11

This report disclosed a serious situation. Here was a probationer with an abnormally high tally of absences from duty on the ground of illness. Amongst those absences were a not insignificant number of single days for which no medical certificate had been furnished. So disproportionately high was high absence record that the superintendent thought his period on active duty gave little opportunity to his superiors to assess him properly. It would obviously have been wrong to allow him to pass out of his period of probation while his record was thus clouded. It might have been amenable to satisfactory explanation. But clarification, one way or the other, way clearly called for.

12

II. Also on the file before the Commissioner was a report from the plaintiff's station sergeant at Cabinteely made in August 1976. Itsaid:

"[The plaintiff] needs adequate supervisionin the line of duty. In accordance with File B. 106/76 the member will be transferred permanently to Blackrock Station on the 20/8/76. This change may in the long run be of advantage to the member. No doubt, some periods of the...

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