State (Duffy) v Minister for Defence

• Jurisdiction: Ireland
• Judge: Henchy J.
• Judgment Date: 09 May 1979
• Neutral Citation: 1978 WJSC-SC 1235
• Docket Number: No. 364 S.S./1978
• Court: Supreme Court
• Date: 09 May 1979

STATE (DUFFY) v. MINISTER FOR DEFENCE

THE STATE (DUFFY)

v.

MINISTER FOR DEFENCE

1978 WJSC-SC 1235

No. 364 S.S./1978

No. 17/1979

THE SUPREME COURT

REVERSING HIGH - 20.12.78

1 Judgment of Henchy J. delivered the 9th May 1979.[nem diss]

2 The prosecutor in these certiorari proceedings is a young man who enlisted in the Irish navy in 1977 as a petty officer. One of the conditions of enlistment required him to enlist for a period of four years, but that and the other conditions of enlistment were subject to the provisions of the Defence Act, 1954and 1960, and the Regulations made thereunder. One of those Regulations (Defence Force Regulations A.10, para, 58(f)) provided that the prosecutor could be discharged if his commanding officer directed his discharge for the stated reason of "not being likely to become efficient". Thus while, on enlistment, he acquired an office in the permanent defence force, he could be removed from that office for that reason, amongst others.

3 When the prosecutor took up duty as a petty officer in 1977 and was posted to the corvette Deirdre, it was made clear to him by his superior officers that he would have to qualify for an engine room artificer (E.R.A.) certificate. This is a rudimentary naval qualification, based on supervisor assessment over a 48-hour watch period during which the petty officer would be in charge of the ship's engine room. A petty officer is not qualified to stand watch on his own until he qualifies for this certificate. Such a qualification is plainly essential in the interests of safety and efficiency. Ordinarily a petty officer qualifies for this certificate within three to six months after enlistment

4 Unfortunately the prosecutor's lack of aptitude was such that he failed completely to qualify for this certificate. After being over six months in the service it was clear that this qualification was beyond his reach. Although it was explained to him that he would be required in certain events to take charge of the ship's engine room and that the safety of the ship and of the personnel aboard would depend on his efficiency, he quite failed to satisfy his superiors that he had attained that efficiency or that he was ever likely to attain it. Not only that. His ineptitude, indifference and inability to perform routine duties efficiently or safely were so marked that he had to be repeatedly reprimanded by his superior officers and warned that he would have to pull himself together. All to no avail. On board a naval vessel, where basic skills and efficiency are of crucial importance, he was found incurably wanting. So much so, that even his fellow crew members complained about him.

5 It is so wonder that a decision was made to discharge him from the defence force for "not being likely to become efficient". On the 3 February 1978 the engineer officer on board the Deirdrewrote a memo recommending his discharge on that ground and giving as his reasons:

6 2 "1. Very slow to learn the basic functions and systems on board ship.

7 2. A very slow practical worker.

8 3. He does not seem to appreciate and is not accepting the full responsibility of an E.R.A.

9 4. He is extremely slow to react to an emergency situation and he is not really interested enough in the job."

10 On the 8 February 1978 Lieutenant Davis of the Deirdre made a report repeating that recommendation. On the same date the officer commanding the naval base at Haulbowline, having considered those reports and having discussed the position with the two engineering officers who had been associated with the prosecutor, wrote to the commanding officer of the naval service recommending the prosecutor's discharge for the same reason. So it was that on the 10 February 1978 the commanding officer of the naval service, in exercise of his functions under the Regulations, directed the prosecutor's discharge.

11 Before that direction was further implemented, on the 23 February 1978 the Prosecutor was brought before the commanding officer of the naval base at Haulbowline, who told him that he was to be discharged and gave him the reason for the discharge. The prosecutor's reply was that he had signed a contract for four years. The commanding officer explained to him that the contract was subject to his acquiring the necessary degree of efficiency and that he had failed to do so. The prosecutor, without making any attempt to question or contract that finding, replied that he was "going to do something about this" to which the commanding officer replied that he was free to do so if he wished. On termination of the interview the commanding officer took steps to ensure that the decision to discharge was not implemented for at least seven days, so that the prosecutor could make any representations he wished.

12 The prosecutor in fact made no representations. Although the discharge did not come into effect until the 5 March 1978, and although he was ashore at Haulbowline from the time he was informed of the decision to discharge him until his actual discharge, he made no attempt to put off his discharge by making representations, although he knew it was impending and was fully aware of the precise reason for it. The explanation of this inactivity can only be that the case against him for failure to qualify...