Íde de Búrca v an Taire Iompair and Others

• Jurisdiction: Ireland
• Judge: Miss Justice Laffoy
• Judgment Date: 29 October 2010
• Neutral Citation: [2010] IEHC 418
• Court: High Court
• Date: 29 October 2010

[2010] IEHC 418

AN ARD-CH ÚIRT

[No. 6311P/2006]

De Búrca v tAire Iompair & Ors

IDIR

ÍDE de B ÚRCA

GEARÁNAÍ

AGUS

AN tAIRE IOMPAIR, AN tAIRE AIRGEADAIS, ÉIRE AGUS AN tARD-AIGHNE

COSANT ÓIRÍ

CIVIL SERVICE REGULATION ACT 1956 S17

CIVIL SERVICE REGULATION ACT 1956 S17(1)

CIVIL SERVICE REGULATION ACT 1956 S17(2)

CIVIL SERVICE COMMISSIONERS ACT 1956 S28

CIVIL SERVICE COMMISSIONERS ACT 1956 S28(1)

GLENCAR EXPLORATION PLC v MAYO COUNTY COUNCIL (NO.2) 2002 1 IR 84

MCGRATH v MIN FOR DEFENCE UNREP SUPREME 28.7.2009 2009/35/8644 2009 IESC 62

GILHEANEY v REVENUE COMMISSIONERS 1998 4 IR 150

EMPLOYMENT

Legitimate expectation

Civil servant - Competition for assignment - Custom and practice in relation to promotions and competitions - Departmental policy - Plaintiff unaware that bonus marks for proficiency in Irish would not be awarded - Whether defendant took sufficient steps to negate reasonable expectation - Whether plaintiff's legitimate expectation to be awarded bonus marks for proficiency in Irish infringed - Pre-conditions to right to invoke doctrine of legitimate expectation - Conditions in relation to allocation of marks for proficiency in Irish - Whether defendant entitled to vary or discontinue practice of allocating marks for proficiency in Irish in internal competitions peremptorily and without fair notice to staff - Damages - Quantum - Whether plaintiff incurred any loss by being deprived of allowances - Whether any case for exemplary or aggravated damages - Loss as result of not receiving higher duties allowance - Gilheaney v Revenue Commissioners [1998] 4 IR 150 considered - Glencar Exploration plc v Mayo County Council (No 2) [2002] 1 IR 841 approved - McGrath v Minister for Defence [2009] IESC 62, (Unrep, SC, 28/7/2009) followed - Civil Service Regulation Act 1956 (No 46), s 17 - Damages awarded in sum of €28,800 (2006/6311P - High Court - Laffoy J - 29/10/2010) [2010] IEHC 418

de Búrca v An tAire Iompair

1. Factual background

2 2 1.1 The plaintiff is an established civil servant. She joined the Civil Service in 1985. Having been promoted on a number of occasions and having moved department on a number of occasions, by June 2006 she held the position of a Higher Executive Officer in the Department of Transport (the Department). In June 2002 she received recognition from Gaeleagras na Seirbhíse Poiblí, which was under the aegis of the Department of Finance, that she had achieved the appropriate standard in written and oral examinations for proficiency in Irish conducted in May 2002.

3 3 1.2 On 6 ^th June 2006 Staff Notice 11/2006, which had been preceded by Staff Notice 8/2006 to which I will refer later, was issued by the Personnel Officer of the Department to all "Assistant Principal Officers, Higher Executive Officers and Administrative Officers" in the Department informing them that it was proposed -

"… to assign an Assistant Principal Officer, or a Higher Executive Officer/Administrative Officer on a Higher Duty Allowance to AP for the duration of the assignment, to the Permanent Representative in Brussels to work with the Department's Counsellor … on EU transport matters."

It was stated that the term would cease in autumn 2010. In other words, it was to be a four year assignment. It was also stated that the post would be filled by means of "semi-structured competitive interview". The duties attached to the position were set out in Appendix 1, which described the post as "AP/Attaché Post (Brussels)". The allowances which were attached to the post (e.g., a local post allowance) were outlined in Appendix 2. The notice stated that it was desirable, but not essential, that the Officer selected should have a good working knowledge of French. In Appendix 1, which contained the job description, it was indicated that the candidates should have the competencies listed: self confidence; communications (both oral and written); decision making and judgment; networking and influence (including the ability to relate to the political process); and information seeking and management.

4 4 1.3 Crucially for present purposes, in contradistinction two Staff Notices issued the previous year - Staff Notice 8/2005 issued by the Department on the 28 ^th April, 2005 and Staff Notice 14/2005 issued by the Department eight months earlier on 6 ^th October, 2005, Staff Notice 11/2006 did not contain a provision that marks for proficiency in Irish would be taken into consideration in the competition thereunder.

5 5 1.4 The plaintiff applied for the post the subject of Staff Notice 11/2006. There were five other candidates for the assignment. Interviews were held in July 2006. On the interviews, marks were allotted out of a maximum of 600 in aggregate. First, marks were allotted out of a maximum of 80 in respect of each of the five competencies referred to in Appendix 1. Secondly, marks were also allotted out of a maximum of 100 in respect of a written submission. Finally, marks were allotted under the heading of "service of value" out of a maximum of 100. While, as I understand it, there is no controversy in relation to the allotment of the "service of value" marks, those marks are allotted in accordance with a formula based on length of service and performance assessment during service. What is significant for present purposes is that no marks were allotted in respect of proficiency in Irish.

6 6 1.5 On the basis of the marks allotted, there were two candidates with higher marks than the plaintiff. The candidate with the highest marks (423) was offered the assignment but did not take it. The candidate with the second highest marks (422) was then offered the assignment and took it. The plaintiff was the candidate with the third highest marks (420). Her case is that she should have been awarded a 6% increment on the marks allotted to her in accordance with the rules in force in the Civil Service in relation to awarding bonus marks for proficiency in Irish on promotion. If that had happened, she would have had the highest mark, because it is clear on the evidence that the candidates who achieved 423 marks and 422 marks respectively would not have earned the 6% increment for proficiency in Irish if it had been applied in relation to the competition.

7 7 1.6 By e-mail dated 24 ^th July, 2006 to the Personnel Officer of the Department, the plaintiff contended that she was entitled to marks for proficiency in Irish and required that the markings and the placement be adjusted accordingly. In late July 2006, the staff association of which she is a member, Public Service Executive Union (PSEU) took up the cudgels on her behalf. In a letter dated 28 ^th July, 2006 to the Personnel Officer of the Department, the Assistant General Secretary of PSEU made the point on behalf of the plaintiff that marks for proficiency in Irish were applicable to all competitions in the Department and, while acknowledging that discussions relating to such marks had taken place with PSEU and other unions, a change in the departmental policy had not been formally agreed. The point was also made that any such change would have to be communicated to the staff and could not be made retrospective. In the circumstances, the Personnel Officer was requested not to make an appointment to the post until the plaintiff's issue had been resolved.

8 8 1.7 In support of the statement that bonus marks for proficiency in Irish were applicable to all competitions in the Department, reference was made in the PSEU letter to what was posted on the Department's "StaffNet". The StaffNet in question, as I understand it, is the Department's intranet. A print-out of the "Human Resources' page", dated 20 ^th July, 2006, referring to promotion policy has been put in evidence. For the sake of clarity, I will refer to it as the StaffNet statement. The process, as of 10 ^th March 2006, as stated there under the heading "Competitive Merit Based Promotion System", set out the Department's policy objectives. It identified five competencies for promotion to each of the following levels: Higher Executive Officer, Assistant Principal and Principal Officer. It reserved to the Department the option of including two specialised competencies in any competitive process. It also outlined the approach to be adopted in making assessments for promotion purposes. It provided that for "competitive interviews" the overall score available would be 600 marks, of which 400 would be available in respect of the demonstration of the possession of the required competencies and 100 marks would be available in respect of the written submission. The remaining 100 marks would be awarded in respect of "SOV", i.e. service of value. There followed an explanation in italics of how the marks in respect of "SOV" would be allocated. Then there followed, also in italics, the following statement:

"Marks for Proficiency in Irish

Marks for Proficiency in Irish will be awarded for all elements of the competition."

9 9 1.8 The response of the Personnel Officer to the PSEU on 3 ^rd August, 2006 was that the competition in which the plaintiff had participated was "for a temporary assignment for a HEO or AO with a higher duty allowance for a period of 4 years to serve in Brussels" and it was not a promotion. Further, it was stated that, even if the competition had been in respect of a promotion, it was at the Department's "entire discretion" whether or not to apply bonus marks for proficiency in Irish. The letter stated that the Department had elicited the views of all staff associations following receipt of a letter from the Department of Finance in November 2005 whether marks for proficiency in Irish should continue to apply to internal promotion competitions and all staff associations, including PSEU, had intimated that the bonus marks should no longer apply. A...