Michael Grange v Commission for Public Service Appointments

• Jurisdiction: Ireland
• Judge: Mr. Justice Barrett
• Judgment Date: 30 May 2014
• Neutral Citation: [2014] IEHC 303
• Court: High Court
• Date: 30 May 2014

[2014] IEHC 303

THE HIGH COURT

[No. 476 J.R./2013]

Grange v Cmsn for Public Service Appointments

BETWEEN

MICHAEL GRANGE

APPLICANT

AND

COMMISSION FOR PUBLIC SERVICE APPOINTMENTS

RESPONDENT

COMMISSION FOR PUBLIC SERVICE APPOINTMENTS CODE OF PRACTICE FOR APPOINTMENT TO POSITIONS IN THE CIVIL SERVICE AND PUBLIC SERVICE 2007 S8

COMMISSION FOR PUBLIC SERVICE APPOINTMENTS CODE OF PRACTICE FOR APPOINTMENT TO POSITIONS IN THE CIVIL SERVICE AND PUBLIC SERVICE 2007 S2(2)

PUBLIC SERVICE MANAGEMENT (RECRUITMENT & APPOINTMENTS) ACT 2004 S11

PUBLIC SERVICE MANAGEMENT (RECRUITMENT & APPOINTMENTS) ACT 2004 S13

PUBLIC SERVICE MANAGEMENT (RECRUITMENT & APPOINTMENTS) ACT 2004 S48

STEPHENS GREEN CLUB, STATE v LABOUR COURT 1961 IR 85

RYANAIR LTD v FLYNN & MCAULEY 2000 3 IR 240 2001 1 ILRM 283 2000 ELR 161 1999/22/7306

MACPHARTHALAIN v CMSR PUBLIC WORKS 1994 3 IR 353 1998/25/10004

MAGUIRE & ORS v ARDAGH & ORS (OIREACHTAS JOINT COMMITTEE ON JUSTICE) [ABBEYLARA CASE] 2002 1 IR 385 2001 14 3995

DE ROISTE v JUDGE-ADVOCATE GENERAL 2005 3 IR 494 2005 IEHC 273

INDUSTRIAL RELATIONS ACT 1946 S67

MURTAGH v BOARD OF MANAGEMENT OF ST EMER'S NATIONAL SCHOOL 1991 1 IR 482 1991 ILRM 549 1991/4/1028

DE BURCA v WICKLOW CO MANAGER & CHAIRPERSON OF WICKLOW CO COUNCIL UNREP HEDIGAN 4.2.2009 2009/12/2756 2009 IEHC 54

HAUGHEY, IN RE 1971 IR 217

DELLWAY INVESTMENTS LTD & ORS v NATIONAL ASSET MANAGEMENT AGENCY (NAMA) & ORS 2011 4 IR 1 2011/12/2745 2011 IESC 13 2011 IESC 14

HOGAN & MORGAN ADMINISTRATIVE LAW 4ED 2010 569

MCDONALD v BORD NA GCON 1965 IR 217

FUREY, STATE v MIN FOR DEFENCE 1988 ILRM 89 1984/2/408

O (B F) v GOVERNOR OF DOCHAS CENTRE 2005 2 IR 1 2003/43/10437 2003 IEHC 622

GUTRANI v GOVERNOR MOUNTJOY PRISON 1993 2 IR 427 1992/7/2073

FAKIH & ORS v MIN FOR JUSTICE 1993 2 IR 406 1993 ILRM 274 1992/7/1998

AG OF HONG KONG v NG YUEN SHIU 1983 2 AER 346 1983 2 AC 629 1983 2 WLR 735

Commission for Public Service Appointments - Civil Service - Recruitment - Shortlisting Panel - Justiciability - Whether amenable to judicial review - Whether Commission complied with Code of Practice - Fairness of procedures - Failure to take certain material into consideration - Errors of law - Errors of fact - Legitimate expectations

Facts Mr. Grange obtained a Business Studies degree in 1991 from Dublin City University. In 2003 he was awarded the degree of Barrister at Law by King”s Inn. Some years later, Mr Grange, who was then serving as a Civil Servant, applied for the role of Administrative Officer within the Human Resources department of the Civil Service. He was later notified that he had not been shortlisted and so requested a review of the decision. He was provided with a copy of the shortlisting board”s assessment. He subsequently requested a formal review pursuant to s.8 of the Code of Practice on Appointment to Positions in the Civil Service and Public Service. Dublin City University confirmed to the formal reviewer that the degree awarded in 1991 was primarily a general business degree and that Mr Grange had specialised in the HR area but that the degree was not specifically a Human Resources degree. The university left it to the formal reviewer to decide if the degree could be treated as a HR qualification. Mr. Grange lodged a complaint with the Commission for Public Service Appointments alleging that in the operation of the competition for the position of Administrative Officer (Human Resources) there had been breaches by the Public Appointments Service of the Code of Practice. He alleged the Public Appointments Service had failed to apply the merit principle and claimed their conclusion regarding him was irrational and the formal review into his situation was unsatisfactory. He argued the information from Dublin City University had not been referred to or placed before the members of the Commission. He alleged that when he produced an HR management qualification certificate from an alternative third level education institution the Secretary did not furnish the Commission with details of the course. The Commission decided to stand over its earlier decision and thus Mr Grange sought a fresh investigation.

Held The court did not consider the imperfections contended by Mr Granger of such a scale or significance as to require the court to find that the rules of constitutional justice had not been observed or that the principle of audi alteram partem had in some way been breached, or that the procedures employed were not perceived objectively to be fair. The judge ruled the Commission”s investigation was substantively in compliance with what the Code of Practice intended and that a basic fairness of procedures was consistently attained by the Commission in its actions.

-Relief sought by Mr Grange declined.

1 JUDGMENT of Mr. Justice Barrett delivered on the 30th day of May, 2014

2 1. There are two key issues in this case. The first is whether certain decisions of the Commission for Public Service Appointments are amenable to judicial review. The second is whether, assuming such decisions are amenable to judicial review, the particular decisions of the Commission in issue in these proceedings should be allowed to stand.

Facts

3 2. This application is brought by Mr. Grange, the disappointed applicant for a position within the Civil Service. The decisions of the Commission which it is sought to impugn were taken from 2012 onwards. To understand the context of those decisions it is necessary to look back further in time, starting in 1991. In that year Mr. Grange successfully completed a degree in business studies at Dublin City University. Just over a decade later, in 2003, he was awarded the degree of Barrister-at-Law by King's Inns. Between October 2007 and August 2008, Mr. Grange 'devilled' for a year in the Law Library. Four years later came the events that have led directly to these proceedings. In January 2012, the Public Appointments Service ran a competition for the position of Administrative Officer in the Civil Service. On 26 ^th January, 2012, Mr. Grange, then a serving civil servant, applied for the position of Administrative Officer (Economics). This application was not successful. On 23 ^rd May, 2012, Mr. Grange applied for the position of Administrative Officer (Human Resources). On 30 ^th May, 2012, he was advised that he had not been short-listed for this role. On 11 ^th June, 2012, Mr. Grange requested a review of the decision of the short-listing board. On 14 ^th June, 2012, Mr. Grange was advised that the short-listing board had made its assessment of applications under three headings, viz. 'Qualifications/Training', 'Work Experience', and 'Range and Depth of Experience'. Under the heading 'Qualifications/Training', Mr. Grange was found to have 'somewhat relevant undergraduate experience'. Under the heading 'Work Experience' Mr. Grange was deemed not to have any relevant experience. Under the heading 'Range and Depth of Experience' he was deemed to have 'no relevant qualifications and experience'. On 29 ^th June, 2012, Mr. Grange was provided with a copy of the short-listing board's assessment. On 9 ^th July, 2012, Mr. Grange requested, pursuant to section 8 of the Code of Practice on Appointment to Positions in the Civil Service and Public Service, as published by the Commission for Public Service Appointments in 2007, a formal review by the Public Appointments Service of the short-listing board's decision. On 24 ^th and 25 ^th July, 2012, Dublin City University confirmed to the formal reviewer that the degree awarded to Mr. Grange in 1991 was primarily a general business degree, that Mr. Grange had specialised in the HR area but that it was not specifically a HR degree. The university left it to the formal reviewer to decide if the degree could be treated as a HR qualification. On 1 ^st August, 2012, the formal reviewer issued her formal decision, stating, inter alia, that:

"The Board regarded your Business Degree somewhat relevant as it is a general Business Degree with elements of Human Resources. However, for the purposes of this competition, only specific Human Resources qualifications were considered relevant, in line with the essential requirements of this post. Your legal qualifications were deemed 'not relevant' by the Board as Employment Law is a module of the legal degree course and is therefore not considered a Human Resource qualification."

4 3. On 13 ^th August, 2012, Mr. Grange lodged a complaint with the Commission for Public Service Appointments alleging that in the operation of the competition for the position of Administrative Officer (Human Resources) there had been breaches by the Public Appointments Service of the Code of Practice on Appointment to Positions in the Civil Service and Public Service. In essence, he contended that the Public Appointments Service had failed to apply the merit principle, that its conclusion regarding him had been irrational, and the formal review unsatisfactory. The 'merit principle' is set out in Section 2.2 of the Code which states in this regard that, inter alia:

"Appointment on merit means the appointment of the best person for any given post through a transparent, competitive recruitment process where the criteria for judging suitability of candidates can be related directly to the qualifications, attributes and skills required to fulfil the duties and responsibilities of the post. This fundamentally fair and just approach to dealing with applicants results in the selection of individuals whose competencies, abilities, experience and qualities best match the needs of the organisation in question. Merit is therefore an integral principle which must underpin all appointment practices."

5 Throughout any merit-based process, it is essential to ensure that the selection process does not provide unjustifiable...