Whelan v Minister for Transport
| Jurisdiction | Ireland |
| Judge | Mr. Justice Garrett Simons |
| Judgment Date | 10 November 2023 |
| Neutral Citation | [2023] IEHC 586 |
| Court | High Court |
| Docket Number | 2023 No. 856 JR |
[2023] IEHC 586
2023 No. 856 JR
THE HIGH COURT
JUDICIAL REVIEW
Judicial review – Termination of appointment – Civil Service Regulation Act 1956 s. 7 – Applicant seeking judicial review – Whether the respondent’s decision to terminate the applicant’s appointment and to revert him to his previous grade was unlawful
Facts: The applicant, Mr Whelan, a civil servant, was promoted to the position of principal officer within the Department of Transport. The promotion had been subject to a probationary period of twelve months. An official within the Department of Transport purported to extend the duration of the probationary period by a further four weeks. Following the exhaustion of a non-statutory review process, the respondent, the Minister for Transport, purported to terminate the appointment and to revert the applicant to his previous grade of assistant principal officer. That was done some six months after the expiration of the (extended) probationary period. The applicant challenged the legality of those actions by the Department of Transport and the respondent. Proceedings were instituted by way of an ex parte application for leave to apply for judicial review on 21 July 2023. The High Court (Hyland J) directed that the leave application be heard on notice. The parties agreed that there should be a telescoped hearing of the leave application and the substantive application.
Held by Simons J that the applicant’s probationary period had come to an end by 16 December 2022, at the very latest. In circumstances where the respondent, qua appropriate authority, had not terminated the appointment within the probationary period, Simons J held that the appointment ceased to be precarious. Simons J held that it is not necessary that there be a positive decision to “confirm” the appointment; rather, the appointment takes effect upon the expiration of the probationary period unless it has been previously terminated. Thus, Simons J held that the applicant’s appointment as principal officer took full effect from, at the very latest, 16 December 2022. Simons J held that the subsequent decision of 13 July 2023 which purported to terminate the appointment and revert the applicant to the grade of assistant principal officer was unlawful; it was reached in breach of the provisions of s. 7 of the Civil Service Regulation Act 1956 and s. 6D of the Terms of Employment (Information) Act 1994. Simons J noted that the same result would occur even if one were, instead, to apply the narrower interpretation of the section suggested in Whelan v Minister for Justice [1991] 2 I.R. 241 (prior to Directive (EU) 2019/1152 on transparent and predictable working conditions); as in that case, the respondent did not reach a decision on the probationer’s performance until after the probationary period had already expired and thus could not rely on the power to terminate.
Simons J held that an order of certiorari would be made quashing the impugned decision of 13 July 2023. As the proceedings had been heard by way of a telescoped hearing, Simons J held that it was necessary first to make a formal order granting leave to apply for judicial review. Simons J’s provisional view was that the applicant, having been entirely successful in the proceedings, was entitled to recover his legal costs as against the respondent. Simons J held that this would accord with the default position under s. 169 of the Legal Services Regulation Act 2015.
Application granted.
Mairéad McKenna SC and Colmcille Kitson for the applicant instructed by O'Mara Geraghty McCourt Solicitors
Joe Jeffers SC and Stephen Brittain for the respondent instructed by the Chief State Solicitor
JUDGMENT of Mr. Justice Garrett Simons delivered on 10 November 2023
These proceedings concern the promotion of a civil servant to the position of principal officer within the Department of Transport. The promotion had been subject to a probationary period of twelve months. In the event, an official within the Department purported to extend the duration of the probationary period by a further four weeks. Thereafter, following the exhaustion of a non-statutory review process, the Minister for Transport purported to terminate the appointment and to revert the Applicant to his previous grade of assistant principal officer. This was done some six months after the expiration of the (extended) probationary period.
This judgment addresses the legality of these actions by the Department and the Minister. In particular, it considers the implications of Directive (EU) 2019/1152 on transparent and predictable working conditions. This Directive has been transposed into domestic law by way of amendments to the Terms of Employment (Information) Act 1994. Section 6D of that Act now provides that the probationary period of a public servant shall not exceed twelve months. This judgment also considers the provisions of the Civil Service Regulation Act 1956 which govern the appointment and promotion of senior civil servants.
The Civil Service Regulation Act 1956 requires that employment decisions in respect of senior civil servants must be taken at either Ministerial or Governmental level. This requirement is achieved by providing that employment decisions must be made by the “ appropriate authority” as defined under Section 2 of the Act. The “ appropriate authority” in relation to a civil servant who is of the grade of principal officer is the relevant Minister. In this case, the relevant Minister is the Minister for Transport. The requirement that employment decisions be made by the Minister personally represents an exception to the Carltona principle, i.e. the principle that certain decisions may be made by an official acting as the alter ego of the Minister. The Carltona principle may be displaced where, as here, it is clear that the legislative intent is that the decision should be made by a Minister personally: A.S.A. v. Minister for Justice and Equality [2022] IESC 49 (at paragraph 19).
The power to appoint a civil servant to a position in a probationary capacity is provided for under the Civil Service Regulation Act 1956. The legal effect of a probationary period is that the protection against dismissal, which would ordinarily apply, is temporarily suspended. This is to allow the appropriate authority a fixed period of time within which to assess the probationer's performance. Section 7 of that Act allows for the termination of the appointment in the event that the appropriate authority is satisfied that the civil servant has failed to fulfil the conditions of probation. In circumstances where, as in the present case, the probationer is an existing civil servant who had been promoted to the probationary post, then he or she will revert to the same or equivalent grade as their previous position in the civil service. Put otherwise, the termination of their appointment does not result in their dismissal but rather their reversion to the same or equivalent grade as before.
Insofar as relevant to the Applicant's circumstances, Section 7 of the Civil Service Regulation Act 1956 provides as follows:
“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 under his 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—
[…]
(b) if the civil servant held, immediately prior to his appointment to his probationary position, an established position (in this paragraph referred to as his previous position), the appropriate authority shall terminate his appointment to his probationary position and, in that event, the civil servant may, if the Minister consents, forthwith be appointed to an established position (being a position which is, either, (i) in the same grade as that of his previous position, or (ii) in a grade or rank which, in the Minister's opinion, is equivalent to or lower than the grade of his previous position) to be designated by the Minister;”.
As appears, the appropriate authority has an implicit power to extend the probationary period: “ such (if any) extension thereof as the appropriate authority may from time to time fix”. It should be emphasised that this power resides with the appropriate authority alone. It is not subject to the Carltona principle. Accordingly, only the Minister could decide to extend the probationary period. As will be explained shortly, this limitation assumes a crucial significance in the present proceedings.
One of the principal areas of disagreement between the parties is in respect of the duration of the probationary period. More specifically, there is a dispute as to whether it is permissible to extend the probationary period beyond the maximum period of twelve months prescribed under Section 6D of the Terms of Employment (Information) Act 1994. This section was introduced, with effect from 16 December 2022, in order to implement Directive (EU) 2019/1152 on transparent and predictable working conditions (“ Working Conditions Directive”). The Minister contends that he has no discretion to extend the probationary period beyond twelve months. For the reasons explained at paragraphs 24 to 38 below, this is the correct interpretation.
The Minister, qua appropriate authority, may terminate the appointment at any time during the civil servant's...
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