McGrath v Minister for Defence

• Jurisdiction: Ireland
• Judge: Miss Justice Laffoy
• Judgment Date: 07 April 2006
• Neutral Citation: [2006] IEHC 114
• Court: High Court
• Docket Number: [1998 No. 11905 P]
• Date: 07 April 2006

[2006] IEHC 114

THE HIGH COURT

NO. 11905 P/1998

MCGRATH v MIN FOR DEFENCE & ORS

BETWEEN/

JAMES McGRATH

PLAINTIFF

AND

THE MINISTER FOR DEFENCE, IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS

RSC O.84 r21

MCGRATH v MIN DEFENCE 2004 2 IR 386

EGAN v MIN FOR DEFENCE & ORS UNREP BARR 24.11.88 1988/7/2165

EOGAN v UCD 1996 1 IR 390 1996 2 ILRM 302

EMPLOYMENT

Contract

Fixed term contract - Contract terminated before expiration of fixed term - Legitimate expectation - Exemplary damages - Whether change in policy which resulted in plaintiff being medically reclassified and thereafter dismissed was breach of contract - Whether plaintiff had legitimate expectation that he would be maintained at same medical grade which he was on when he entered into fixed term contract - Whether defendants' behaviour in dismissing plaintiff gave rise to claim for exemplary damages - Damages of €36,395.77 plus court interest awarded - (1998/11905P - Laffoy J - 7/4/2006) [2006] IEHC 114 McGrath v Min for Defence & Ors.

Facts: The plaintiff was discharged from the Defence Forces after twenty six years of service on medical grounds. The plaintiff had been re-classified by the Medical Board as fit for a two year extension of contract that ran subsequent to the discharge. The plaintiff sought inter alia a declaration that his discharge and the inquiry and findings of the Medical Board were ultra vires and that the defendant had breached the terms of his fixed term employment contract.

Held by Laffoy J., that the plaintiff's claim in contract was well founded. The plaintiff would be awarded damages in the sum of the lump sum gratuity lost. No evidence existed to support the claim for exemplary damages here.

Reporter: E.F.

1 Judgment of Miss Justice Laffoy delivered on 7th April, 2006.

2 Members of the Defence Forces are medically graded on a scale from A1 to E. The objective of the grading, on the evidence, is to measure the fitness of the member from a medical perspective for what he may be called on to do. Category E indicates that the member is below the minimum standard required for service in the Defence Forces. Category C indicates a chronic disability.

3 The plaintiff, who was born on 18th July, 1953, enlisted in the Defence Forces on 29th October, 1969 and served for twenty-six and a half years until he was discharged on 12th May, 1996 in the circumstances which give rise to these proceedings. In 1977, while engaged in recreational exercise at the Glen of Imaal, he suffered an injury to his right knee. In 1982 he underwent a meniscectomy. Despite that, he was able to serve in the Lebanon in 1983. However, he continued to have problems with his knee and in 1987 he had surgery for the reconstruction of his anterior cruciate ligament. Following the surgery, the plaintiff was excused from regimental duties. Later, in November, 1988, he was medically re-

4 classified to category C and remained so classified until November, 1995. Between 1987 and 1996 the plaintiff performed a wide range of duties. His evidence was that he did everything except regimental duties, which he defined as guard duty with a weapon and ceremonial guard mounting duties involving marching.

5 In the summer of 1994, a review was initiated of all members of the Defence Forces of every rank in category C who were unfit for 24-hour armed security duty of their own barracks. The evidence indicates that this review followed on recommendations made in a report published in 1990 by Mr. Dermot Gleeson SC on a review he conducted into pay and conditions in the Defence Forces and a subsequent efficiency audit carried out by Price Waterhouse. The review was partly prompted by complaints from members of the Defence Forces who were classified above category C about the high incidence of 24-hour duty to which they were subjected, the inference being that they were "carrying" personnel who were classified as category C. The evidence indicates that this was the first such review every carried out of personnel classified as category C. The objective of the exercise was to improve the fitness profile of the army.

6 Around the same time, with broadly similar objectives, a scheme was being devised and negotiated for voluntary early retirement (the VER Scheme) from the army. The main objectives of the scheme were to reduce the number of personnel graded category C, to reduce the age profile of army personnel and to create scope for recruitment. The VER Scheme was launched on 22nd April, 1996. It was in place for three years, 1996, 1997 and 1998. In 1996 it was open for applications between 29th April and 7th June. In other words, it opened for applications before the plaintiff was discharged, but the plaintiff was not eligible to participate. In 1996 the main categories eligible to apply for early retirement included personnel graded category C and soldiers over the age of 50. In that year, there were applications from 1,119 members, of whom 500 were granted early retirement under the scheme.

7 At the time the review of category C personnel was directed, in mid-1994, the plaintiff, who had the rank of sergeant, was on a two-year service extension from October, 1992 to October, 1994. In April, 1994 he had sought a further extension for two years from October, 1994. He had the usual extension of service medical examination on 27th April, 1994 and the medical officer who examined him graded him category C and recorded that fact in his Medical Book (L.A. 30). His commanding officer recommended that he be continued in service and assessed his conduct as very good. In fact, a striking feature of the evidence is that there was unanimity that the plaintiff was an exemplary soldier, that he was dependable, reliable, conscientious and committed, that he was highly regarded by his superiors and his peers. The plaintiff was granted the extension he sought for a period of two years terminating on 29th October, 1996.

8 The manner in which the review of category C personnel was implemented was that some time after June, 1994 the Director of the Medical Corps was directed to assess the effectivity of category C personnel who did not carry out regimental duties. Lists of the relevant personnel in each command were prepared. In the case of the Curragh Command, where the plaintiff served, the Command Medical Officer, Commandant (now Lieutenant Colonel) Concannon, received the relevant list in 1994 and he started interviewing the personnel on the list in 1995. Lt. Col. Concannon recorded on the plaintiff's L.A. 30 the outcome of his interview with the plaintiff on 13th March, 1995 as follows:

"Review re duties. No [regimental] duties since ? 1987. [Right] knee. [Anterior cruciate ligament] repair 1987. Physio at present. Feels knee is getting worse. Unfit barrack [regimental] duties. Situation explained to patient."

9 The evidence of Lt. Col. Concannon was that the purpose of this first meeting with the plaintiff was to explain to him that anyone not able to do 24-hour armed security duty would be subject to a Medical Board. All personnel who were interviewed were given the same explanation.

10 In the case of the plaintiff, a decision as to whether he would be subject to a Medical Board was deferred, in Lt. Col. Concannon's words, to see if the plaintiff had found his way of getting back to armed regimental duties. The plaintiff was re-interviewed by Lt. Col. Concannon on 11th August, 1995 and on that occasion the outcome was recorded as follows in the plaintiff's L.A. 30:

"Review. No change. Definitely unfit [regimental] duties. Note some [right] leg shortening. To be reviewed by [Medical] Board."

11 I will consider later what the plaintiff's understanding of the review process was.

12 In any event, Lt. Col. Concannon set in train the convening of a Medical Board, the purpose of which was to determine if the plaintiff was unfit for further service in the permanent defence forces and his medical classification. On 17th October, 1995, the plaintiff's Commanding Officer, Commandant (now Lieutenant Colonel) Cullagh paraded the plaintiff and gave him notice that a medical board would assemble on 20th November, 1995 to determine his appropriate medical classification. The relevant form completed by Lt. Col. Cullagh at the time certified, and his evidence was, that the plaintiff was informed that there was a possibility of his being reclassified category E, in which case the provisions of DFR A12, para. 74, a copy of which was furnished to him, would apply, namely that he would be discharged from the army. The plaintiff attended before the Medical Board on 20th November, 1995 and he was medically examined. The finding and recommendation of the Medical Board were recorded as follows:

13 2 "(1) that the [plaintiff] be discharged from the permanent defence force in consequence of his not possessing the physical standard required for service with the permanent defence force

14 (2) & reclassify [medical category] E".

15 It was also recorded on the certificate signed by the members of the Medical Board that the plaintiff was informed that he was re-classified to category C on the grounds which were set out as follows:

"He suffers from chronic ineffectivity since 1987 due to [right] medial cartilage (?) injury and [right] anterior cruciate injury which has failed to allow him return to normal duties despite reconstructive surgery and physiotherapy."

16 The plaintiff was informed of his right to make representations to the Director Medical Corps against the finding and recommendation of the Medical Board. He was also informed that, as a result of re-classification, he was regarded as not possessing the medical standard required for service in the Defence Forces.

17 The plaintiff did not pursue the option of making representations against the...