McAuley v Commissioner of an Garda Síochána

• Jurisdiction: Ireland
• Judge: Hamilton C.J.
• Judgment Date: 15 February 1996
• Neutral Citation: 1996 WJSC-SC 1653
• Court: Supreme Court
• Docket Number: [1995 No. 244 S.C.]
• Date: 15 February 1996

MCAULEY v. COMMISSIONER GARDA SIOCHANA

BETWEEN:

GARY BRIAN McAULEY

Applicant/Respondent

and

COMMISSIONER OF AN GARDA SÍOCHÁNA

Respondent/Appellant

1996 WJSC-SC 1653

HAMILTON C.J.

BLAYNEY J.

DENHAM J.

244/95

THE SUPREME COURT

Synopsis:

GARDA SIOCHANA

Discipline

Enforcement - Recruit - Misconduct - Complaint - Investigation -Report - Contents - Evidence withheld from recruit - Termination of contract - Natural justice - Fair procedures - Judicial review- Fair procedures not applied by tribunal - Remittal of proceedings to tribunal - Code of Conduct for Students/Probationers, Article 33 - Garda Siochana (Discipline) Regulations, 1989, regs.8, 33 - (244/95 - Supreme Court - 15/2/96)- [1996] 3 IR 208

|McAuley v. Commissioner of Garda Siochana|

NATURAL JUSTICE

Fair procedures

Garda - Recruit - Dismissal - Misconduct - Allegation - Enquiry failed to comply with domestic procedures - Dismissal quashed - (244/95 - Supreme Court - 15/2/96)- [1996] 3 IR 208

|McAuley v. Commissioner of Garda Siochana|

JUDICIAL REVIEW

Proceedings

Remittal - Propriety - Discretion - Exercise - Garda recruit -Misconduct - Enquiry - Absence of fair procedures - Decision to terminate contract quashed - No justification for assumption that resumed enquiry would be conducted in contravention of constitutional justice and fair procedures - (244/95 - Supreme Court -15/2/96)- [1996] 3 IR 208

|McAuley v. Commissioner of Garda Siochana|

Citations:

GARDA SIOCHANA (ADMISSIONS & APPOINTMENTS) REGS 1988 SI 164/1988

MINIMUM NOTICE & TERMS OF EMPLOYMENT ACTS 1973 – 1984

BEIRNE V COMMISSIONER OF AN GARDA SIOCHANA 1993 ILRM 1

KIELY V MIN FOR SOCIAL WELFARE 1977 IR 267

HAUGHEY, IN RE 1971 IR 217

CONSTITUTION ART 40.3

RUSSELL V DUKE OF NORFOLK 1949 1 AER 109

PROTECTION OF EMPLOYEES (EMPLOYERS INSOLVENCY) ACT 1984

1 Judgment delivered on the 15th day of February 1996 by Hamilton C.J. [new diss]

2 This is an appeal brought by the Respondent (hereinafter referred to as the Commissioner) against the judgment delivered and order made by the High Court, (Barr J.) on the 4th day of July 1995 whereby the High Court did grant an order of certiorari quashing the decision of the Commissioner made on the 11th day of February, 1994 purporting to terminate the Applicant's assignment as a Garda Siochana Trainee with effect from the 25th day of February, 1994 but in lieu of directing that an order of certiorari do issue it was ordered that the Commissioner on service of the order made upon him do send up to the High Court for the purpose of being quashed all records, notes and memoranda pertaining to the decision of the Commissioner as aforesaid, and it was further ordered by the High Court that:-

"The Commissioner or his subordinates be and the same is or are prohibited from taking any further disciplinary proceedings against the Applicant in relation to the alleged incident in Allen's Licensed Premises, Templemore on the 13th day of October, 1993 and the Court deeming the Applicant entitled to damages for breach of contract, it was further ordered that in the event of the parties being unable to reach agreement in respect of the quantum of such damages that either party be at liberty to re-enter the matter for the assessment of such damages."

3 The Commissioner has appealed against the provisions of the said order made by the High Court.

4 The facts relevant to the proceedings herein are set forth in the affidavit of the Applicant, the affidavits filed on behalf of the Commissioner and in the judgment of the learned trial judge.

The Decision

5 The decision which the Applicant had sought to have quashed was set forth in the notice dated the 11th day of February, 1994 and signed by the Commissioner and is in the following terms:-

"The Garda Siochana (Admissions and Appointments) Regulations, 1988."

6 Notice, in accordance with the provisions of the Minimum Notice and Terms of Employment Acts, 1973and 1984, of the Commissioner of the Garda Siochana terminating the training assignment of Gary Brian McAuley, S25940C, a trainee within the meaning of the Garda Siochana (Admissions and Appointments) Regulations, 1988.

To

7 To: Trainee Gary Brian McAuley, S25940C, Garda College, Templemore, Co. Tipperary.

8 I, Patrick J. Culligan, Commissioner of the Garda Siochana, have decided that you, Gary Brian McAuley, S25940C, a trainee within the meaning of the Garda Siochana (Admissions and Appointments) Regulations, 1988 are unsuitable for continued employment as a trainee by reason of misconduct in that on 13th October, 1993 in Allen's Public House, Templemore;

9 (a) you exposed your penis in the presence of a large number of male and female students, and

10 (b) you assaulted student Garda Adrienne Snee.

11 Now, therefore, in accordance with the "conditions of service" as laid down in the booklet issued by the Commissioner and entitled "Notes for Candidates and Conditions of Service" subject to which you, the said Gary Brian McAuley, S25940C, accepted your appointment as a trainee, within the meaning of the Garda Siochana (Admissions and Appointments) Regulations, 1988, you are hereby given notice, in accordance with the Minimum Notice and Terms of Employment Acts, 1973 and 1984, that your assignment as a trainee will be terminated with effect from the 25th day of February, 1994."

12 The Applicant was at all material times a trainee Garda in phase 1 of his training and the conditions of service accepted and signed by him provided, inter alia, that:-

13 2 "(1) the training assignment is temporary and will be for a period of 62 weeks or for such shorter periods as the Commissioner may determine;

14 (2) the trainee's suitability in all respects for continuation of the training will be under review throughout that period;

15 (3) the assignment may be terminated:-

16 (a) by either side, in accordance with the Minimum Notice and Terms of Employment Act, 1973(as amended by the Protection of Employees (Employers Insolvency) Act, 1984).

17 or

18 (b) by the Commissioner:-

19 (i) where he has decided that the trainee is not fitted physically or mentally to perform the duties of a member of the Garda Siochana or is not likely to become an efficient and well conducted member of the Garda Siochana;

20 (ii) at any time, if, in his opinion, the trainee is unsuitable for continued employment as a trainee by reason of misconduct."

21 In the course of his judgment in Beirne .v. The Commissioner of an Garda Siochana 1993 ILRM page 1, Finlay C.J., stated at page 5 that:-

"In these circumstances, I have no doubt that whilst the power of the Commissioner to terminate the training of the trainee by reason of his misconduct is stated to be one of the conditions of the employment and that statement is true. It is not a jurisdiction which is solely or purely or even mainly derived from contract but is a clear jurisdiction necessarily vested in the Commissioner by reason of this office which he holds and the statutory provisions which are attached to it. In those circumstances I conclude that it is clearly within the jurisdiction of the courts to review that decision judicially."

Grounds of Application for Relief by way of Judicial Review

22 The grounds upon which the Applicant was given leave to seek relief by way of judicial review of such decision were:-

23 2 "1. The Respondent failed to comply with the principles of natural and constitutional justice and basic fairness of procedures.

24 In particular, but without prejudice to the generality of the foregoing, the applicant:-

25 (a) was not adequately informed of the nature and substance of the accusations made against him,

26 (b) was not furnished with copies of the statements obtained by Inspector Murphy,

27 (c) was not afforded any or any adequate opportunity of having a hearing of the charges made against him, of hearing the evidence adduced against him, or of cross examining the witnesses giving such evidence,

28 (d) was not afforded any or any adequate opportunity of calling evidence in his defence whether by way of rebuttal or otherwise,

29 (e) was not afforded any or any adequate opportunity of being heard in argument or submission before a recommendation was made,

30 (f) was not afforded any or any adequate opportunity of being heard in argument or submission before a decision was made to terminate his assignment as a trainee.

31 2. The Respondent failed to comply with the procedure contained in An Garda Siochana Code of Conduct for Student/Probationers.

32 3. The Applicant was not made aware of the grounds on which the Respondent considered the applicant to be unsuitable for continued employment as a Garda trainee."

Grounds of opposition

33 In the Statement of Grounds of Opposition delivered on behalf of the Commissioner, the Commissioner stated that the Applicant herein was dismissed by him as a trainee Garda pursuant to paragraph 3 of the Conditions of Service of the Applicant's employment and denied that he had failed to comply with the principles of natural and constitutional justice and basic fairness of procedures as alleged by the Applicant.

Issue

34 As stated by the learned trial judge the primary issue in the application before him was whether in the light of the uncontroverted facts which had emerged, the procedures adopted by the Garda Authorities in the matter of the investigation of the Applicant's alleged misconduct on the 13th October, 1993 which led to the ultimate termination of his traineeship as a student Garda officer, accorded with the principles of constitutional justice and fair procedures.

35 Having so stated the issue, he went on to state:-

"I have no hesitation in deciding that he was deprived of his basic rights in that regard and that the purported termination of his traineeship was unlawful."

36 Having set forth in his...