State (Daly) v Minister for Agriculture

JurisdictionIreland
CourtHigh Court
JudgeMr.Justice Barron
Judgment Date01 January 1988
Neutral Citation1987 WJSC-HC 387
Docket Number[1986 No. 502 SS],502 ss/1986
Date01 January 1988

1987 WJSC-HC 387

THE HIGH COURT

502 ss/1986
DALY v. MIN AGRICULTURE
THE STATE (MALACHY DALY)
.V.
THE MINISTER FOR AGRICULTURE

Citations:

CIVIL SERVICE REGULATION ACT 1956 S7

CIVIL SERVICE REGULATIONS (AMDT) ACT 1958 S3

CIVIL SERVICE REGULATION ACT 1956 S5

HYNES V GARVEY 1978 IR 174

CIVIL SERVICE REGULATION ACT 1956 S9

MCGARRITY, STATE V DEPUTY CMR GARDA SIOCHANA 112 ILTR 25

BURKE, STATE V GARVEY UNREP SUPREME 12.11.79 1980/1/21

BROOMFIELD V MIN FOR JUSTICE UNREP COSTELLO 10.4.81

LYNCH, STATE V COONEY 1982 IR 337, 1982 ILRM 190, 1983 ILRM 89

BROADCASTING AUTHORITY ACT 1960 S31

Synopsis:

EMPLOYMENT

Termination

Fair procedures - Civil servant - Probation - Termination without notice - Veterinary surgeon - Conditions of service - Applicant appointed as established veterinary inspector subject to conditions - Condition 2 stated (a) that applicant must serve a probationary period of two years normally and (b) that, if during that period his services were satisfactory as regards health, conduct and efficiency generally, he "can expect to be finally appointed" on the completion of the two years and (c) that, if his services during the probationary period were unsatisfactory, his appointment could be terminated at any time - The applicant commenced his employment on 5/7/83 on those terms - No complaint, or suggestion of a complaint, was received by the applicant until 26/6/85 when he was merely informed that the conditions of his probation had not been satisfied - By letter dated 27/6/85 the personnel division of the respondent Minister's department informed the applicant (a) that "the conditions of probation attaching to the probationary position have not been satisfied", and (b) that the respondent Minister had terminated the applicant's appointment - On 27/8/86 the applicant obtained a conditional order of certiorari quashing the respondent's decision to terminate the applicant's appointment - In showing cause, the respondent relied on the power conferred by s.7 of the Act of 1956 - That section provides that, where a civil servant is serving in a probationary capacity for a period and the appropriate authority "is satisfied", during that period, that the civil servant has failed to fulfil the conditions of probation attaching to his probationary position, the appropriate authority shall terminate the services of the civil servant - At no time before or after the institution of the certiorari proceedings did the respondent Minister disclose that he had investigated or considered the applicant's health, conduct or efficiency during the probationary period - Held that the respondent was not obliged to give the applicant notice of the termination of his appointment during, or at the end of, the probationary period - Held, nevertheless, that the power of termination was not one which could be exercised arbitrarily - Held that the decision to terminate such services pursuant to s.7 of the Act of 1956 must be formed bona fide on a factually sustainable basis, and must not be unreasonable - Held that it must be presumed that the respondent Minister's decision to terminate the applicant's services was not so formed, since the respondent had refused to disclose the material on which his decision had been based - Held, accordingly, that the cause shown must be disallowed and the conditional order made absolute - ~Hynes v. Garvey~ [1978] I.R. 174 and ~The State (Lynch) v. Cooney~ [1982] I.R. 337 considered - Civil Service Regulation Act, 1956, s.7 - Constitution of Ireland, 1937, Article 40 - (1986/502 SS - Barron J. - 13/2/87) - [1987] IR 165 [1988] ILRM 173

|The State (Daly) v. Minister for Agriculture|

NATURAL JUSTICE

Fair procedures

Statute - Powers - Exercise - Termination of probationary services of civil servant - Power of termination not exercisable arbitrarily - ~See~ Employment, termination - (1986/502 SS - Barron J. - 13/2/87) - [1987] IR 165 [1988] ILRM 173

|The State (Daly) v. Minister for Agriculture|

STATUTE

Powers

Exercise - Arbitrariness - Fair procedures - Termination of probationary services of civil servant - Power of termination not exercisable arbitrarily - ~See~ Employment, termination - (1986/502 SS - Barron J. - 13/2/87) - [1987] IR 165 [1988] ILRM 173

|The State (Daly) v. Minister for Agriculture|

1

Judgment of Mr.Justice Barrondelivered the 13th day of February1987.

2

The Prosecutor is a Veterinary Surgeon who graduated in the year 1964. Thereafter he engaged in private practice in his profession. In the year 1983, the Department of Agriculture advertised for open competition, several positions as Veterinary Inspector with that Department. The Prosecutor applied for one such position and was successful. He was notified of his success by letter dated the 15th of April, 1983 and was offered an appointment as an established Veterinary Inspector subject to the regulations and conditions of service already supplied to him. The only condition of service which is material to the present case is that which related to probation. It was as follows:

"2. Probation:

The officer must serve a probationary period which normally will be of two years' duration. If, during this period the officer's services are satisfactory as regards health, conduct and efficiency generally, the officer can expect to be finally appointed on the completion of the two years. On the other hand, if theofficer's services during the probationary period are unsatisfactory the appointment can be terminated at any time; alternatively the probationary period may be extended beyond the two years."

3

The Prosecutor took up his appointment on the 4th July, 1983. He was employed first at a meat factory in County Roscommon and subsequently in a similar factory in County Leitrim. Throughout his employment he was in constant communication by telephone and correspondence with the Department Head Office and under constant supervision at regional level. Until the 26th June, 1985, he never received even a whisper of reprimand or censure from anyone. On the 26th of June, 1985 he received a telephone call at his place of work from an officer of the Personnel Branch of the Department in Dublin informing him that the conditions of probation attaching to his probationary position had not been satisfied and that accordingly the Minister had decided to terminate his appointment. This call was confirmed by a letter dated the 27th June, 1985 in virtually the same words. The full letter was as follows:

"Mr. Daly,"

4

I am directed by the Minister for Agriculture to refer the conditions applying to the Civil Service Commission Competition from which you were appointed to a position of Veterinary Inspector with this Department on 5th July, 1983.

5

I am to inform you that the conditions of probation attaching to the probationary position have not been satisfied and the Minister for Agriculture has, accordingly, decided to terminate your appointment.

6

Your last day of service will be Thursday 4th July 1985.

7

S. Healy

8

Personnel Division."

9

The Prosecutor wrote to the Minister by letter dated the 2nd July, 1985 in which he both queried the Minister's decision and purported to appeal against it. He received a reply dated the 4th July, 1985 which was asfollows:

"Mr. Daly,

I refer to your minute of 2 July.

As indicated orally on 3 July, the decision of the Minister conveyed to you on 27th June was a final one and was in accordance with the conditions of service applicable to the Civil Service Commission Competition from which you were appointed and the provisions of the Civil Service Regulation Acts, 1956and 1958.

S.Healy

Personnel Division."

10

The Prosecutor was not subsequently given any reason or any indication of the grounds upon which this decision was based. In the course of the hearing before me, I asked Counsel for the Respondent whether even then, the Respondent was prepared to indicate the reason for his decision. The Court has not been informed of this reason.

11

The...

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