Whelan v Minister for Justice

• Jurisdiction: Ireland
• Judge: Mr. Justice Blayney
• Judgment Date: 01 January 1991
• Neutral Citation: 1990 WJSC-HC 2411
• Docket Number: [1989 No. 321 J.R.],JR 321/89
• Court: High Court
• Date: 01 January 1991

WHELAN v. MIN JUSTICE

JUDICIAL REVIEW

BETWEEN

NOEL WHELAN

APPLICANT

AND

THE MINISTER FOR JUSTICE

RESPONDENT

1990 WJSC-HC 2411

JR 321/89

THE HIGH COURT

Synopsis:

EMPLOYMENT

Termination

Civil servant - Probation - Period - Expiration - Dismissal - Conditions of probationary appointment - Dismissal in breach of statutory powers - Civil Service Regulation Act, 1956, s. 7 - Civil Service Regulation (Amendment) Act, 1958, s. 3 - (1989/321 JR - Blayney J. - 29/6/90) - [1991] 2 I.R. 241

|Whelan v. Minister for Justice|

Citations:

CIVIL SERVICE REGULATION ACT 1956 S7

CIVIL SERVICE REGULATION (AMDT) ACT 1958 S3

CIVIL SERVICE REGULATION ACT 1956 S4

CIVIL SERVICE REGULATION ACT 1956 S5

CIVIL SERVICE REGULATION ACT 1956 S7(a)

1 Judgment of by Mr. Justice Blayneydelivered the 29th day of June 1990.

2 Section 7 of the Civil Service Regulation Act 1956, (as amended by Section 3 of the Civil Service Regulation (Amendment) Act 1958) provides as follows:-

"7. Where, in respect of a civil servant who has been appointed to an established position (in this section referred to as his probationary position) and who underhis conditions of service is serving in a probationary capacity, the appropriate authority is, at any time during the civil servant's probationary period or such (if any) extension thereof as the appropriate authority may from time to time fix, satisfied that he has failed to fulfil the conditions of probation attaching to his probationary position, then, subject to section 4 (where applicable), the following provisions shall have effect -"

(a) The appropriate authority shall, notwithstanding section 5, terminate the services of the civil servant ...."

3 Section 4 of the Civil Service Regulation Act 1956is not applicable in the present case and Section 5 is as follows:-

"5. Every established civil servant shall hold office at the will and pleasure of the Government."

4 On the 14th February 1987 the Applicant was appointed a Prison Officer. Conditions under which he was appointed contained the following provision in regard to probation:

"2. Probation: The Officer must serve a probationary period which normally will last for two years.

Should the officer's services be satisfactory as regards health, conduct and efficiency generally during the probationary period, the officer, on completion of the period, will be finally appointed.

Should the officer's services be unsatisfactory, the appointment may be terminated at any time during the period."

5 By virtue of a general agreement arrived at between the Respondent and the Prison Officers" Association the Applicant's probationary period was extended by one month and, accordingly, provided it was not extended further, would have terminated on the 14th March 1989.

6 In April 1989 the Applicant was given a copy of the following minute dated the 6th April 1989 issued by the Prisons" Personnel Section of the Department of Justice:

"I am directed by the Minister for Justice to inform you that he has determined that you have failed to fulfil the conditions of probation attaching to your probationary position. Accordingly, the Minister intends to terminate your services as required by the provisions of Section 7 (a) of the Civil Service Regulation Act 1956as amended by the Civil Service Regulation (Amendment) Act 1958.

The Minister based his determination on your unsatisfactory sick absencerecord.

In order to afford you an opportunity of furnishing an explanation or making any representation you may wish to offer or make the Minister will not take any further action for a period of 14 days from the date of your receipt of this minute."

7 On receipt of this minute the Applicant made a written submission to the Respondent on the 18th April 1989 and the General Secretary of the Prison Officers" Association also wrote to the Respondent by letter dated the 13th April 1989 making representations on behalf of theApplicant.Notwithstanding these representations the Applicant received a minute dated the 5th July 1989 from the Prisons" Personnel Section to the following effect:

"I am to refer to your representations dated the 18th April 1989 in relation to the question of the termination of your services. I am to inform you that the Minister has considered your representations but has decided to terminate your services with effect from 5th July1989."

8 The Applicant tried unsuccessfully to have this decision reversed by getting public representatives to intercede on his behalf, and on the llth December 1989 he sought and was given leave to apply for Judicial Review of the Respondent's decision. The relief for which he was given leave to apply was...