Supreme Court dismisses judicial review appeal, affirming Employment Appeal Tribunal as the correct remedy for employment termination.

THE SUPREME COURT

Record No. 375 of 2004

MURRAY C.J.

DENHAM J.

MACKEN J.

BETWEEN

PATRICK O’DONNELL

APPLICANT/APPELLANT

AND

TIPPERARY (SOUTH RIDING) COUNTY COUNCIL

RESPONDENT

Judgment delivered on the 18th day of March, 2005 by Denham J.

1 This is an appeal by Patrick O’Donnell, the applicant/appellant, hereinafter referred to as ‘the applicant’, from the judgment of the

High Court (Ó Caoimh J.) delivered on the 30th October, 2002. The respondent, Tipperary (South Riding) County Council, is referred to

hereinafter as ‘the County Council’.

2 On the 20th November, 2000 the applicant was given leave by the High Court (Ó Caoimh J.) to seek by way of judicial review:

(i) Certiorari quashing the decision of the County Council taken on the 3rd October, 2000 to terminate its contract of

employment with the applicant;

(ii) A declaration that the County Council was not entitled to decide to terminate the applicant’s contract of employment with

the respondent in the absence of a proper enquiry into the County Council’s perception that the applicant was making wrongful

and illegal pay claims and in the absence of a process of appeal to an independent body being open to the applicant; and

(iii) Damages.

3 Having heard the case on the 29th and 30th October, 2002 the High Court refused the application. The High Court held that the

contract of employment between the parties set up a relationship which was one of private law and a contractual relationship and

that thus the relief of judicial review did not lie, that an alternative remedy would lie in the context of private law remedies. In spite

of this decision the learned trial judge then did proceed to address the other issues raised by the applicant. Having considered the

matters raised, the High Court refused relief on the grounds alleged, which related to the nature of the making of the decision. The

High Court directed that the matter should continue before the Employment Appeal Tribunal.

4 Three issues have arisen for decision on this appeal and although they are to some extent inter-related, I will deal with them

separately. The first issue is whether judicial review is applicable, whether the case is justiciable as a matter of public law. Secondly,

the effect of the presence of an alternative remedy falls to be determined. Thirdly, in issue is whether the procedures were so unfair

as to warrant an order of judicial review.

5.1 The first issue is whether the dismissal of the applicant by the County Council is a matter which is governed by public law. If it is

a matter of public law then it may be subject to judicial review, if not then no such review may proceed.

5.2 The fundamental facts of the case were not in dispute. The applicant was appointed Station Officer of Clonmel Fire Station and

took up duty on the 13th March, 1989, having been offered employment on the 30th January, 1989. The offer, on County Council

paper, was “employment as Station Officer, Clonmel Fire Station”. Enclosed was a “Form of Acceptance of Office”, together with

Terms and Conditions of Employment and Tenancy Agreement. The Tenancy was an agreement whereby the applicant as Station

Officer agreed to occupy the premises known as Station Officer’s Residence. The applicant remained as Station Officer until his

dismissal on the 3rd October, 2000 for allegedly making fraudulent pay claims.

5.3 The first relevant factor is the name of the position of the applicant, which was “Station Officer”. Thus the title presumes a post

as an officer rather than an employee.

5.4 Secondly, the post held by the applicant has a public element. The County Council is the fire authority, this is manifestly a public

authority. The fact that the applicant’s post is titled an ‘Office’ is not determinative, but considered in tandem with the public nature

of the County Council’s relevant fire protection functions, it is clear that the function of the Station Officer of a Fire Station contains

a public element and that it is an office in the public domain.

5.5 The seniority (and thus the responsibility) of the office held by the applicant is also a relevant factor. The applicant as Station

Officer was the most senior person working in Clonmel Fire Station at all material times and answerable only to the Chief Fire Officer.

5.6 The burden is on the County Council to show that the contract between the parties is one of private law. I adopt the approach

taken by Finlay C.J. in Beirne v. Commissioner of An Garda Síochána [1993] I.L.R.M. 1 at p.2, where he stated:

“The principle, which, in general, excludes from the ambit of judicial review decisions made in the realm of private law by

persons or tribunals whose authority derives from contract is … confined to cases or instances where the duty being performed

by the decision making authority is manifestly a private duty and where his right to make it derives solely from contract or solely

from consent or the agreement of the parties affected. Where the duty being carried out by a decision-making authority … is of

a nature which might ordinarily be seen as coming within the public domain, that decision can only be excluded from the reach

of the jurisdiction in judicial review if it can be shown that it solely and exclusively derived from an individual contract made in

private law.”

In that case it was held that the contract of a trainee garda, which included a termination clause, had a public element and that the

decision to terminate was amenable to judicial review. The public element was to be found in the nature of the functions of the

gardaí. Applying that decision to the facts of this case, I am satisfied that the duty being performed by the Fire Service, and the

County Council, is of a nature which would ordinarily be seen as coming within the public domain. Evidence has not been called to

exclude this from the public domain.

5.7 In Geoghegan v. Institute of Chartered Accountants [1995] 3 I.R. 86 factors relevant to the issue as to whether or not the

decision was amenable to judicial review were analysed. A number of those factors are relevant to this case and I apply those

principles. First, this case relates to the Fire Service and to a Station Officer of that Service, a service of importance in the

community for fighting fires and flooding, amongst other matters. Such a service is necessary within a State, either to be provided by

the State or delegated by the State. Secondly, the sources of the general powers of the County Council are to be found in

legislation. Thirdly, the functions of the County Council, the Fire Service, and the Station Officer come within the public domain of

that State. Fourthly, the consequences of the County Council’s decision may be very serious for the applicant. Amongst these factors

I lay emphasis on the functions of the County Council, the Fire Service, and the Station Officer as functions manifestly in the public

domain of the State.

5.8 In conclusion on this issue, I am satisfied that the employment of the Station Officer of a fire station is a matter within the public

domain and amenable to judicial review. While there was a contract between the plaintiff and the County Council, it has a significant

public element and the decision to terminate was amenable to judicial review.

6 The second issue on this appeal is the availability of an alternative remedy. The alternative remedy submitted, that is alternative to

judicial review by the courts, is under the Unfair Dismissals Legislation, the Employment Appeal Tribunal.

6.1 The common law relating to the discretion to be exercised by a court, when there is an application for judicial review in

circumstances where there is an alternative remedy, is well settled. In a High Court judgment in McGoldrick v. An Bord Pleanála [1997]

1 I.R. 497 at p. 509 Barron J. held:

“The real question to be determined where an appeal lies is the relative merits of an appeal as against granting relief by way of

judicial review. It is not just a question whether an alternative remedy exists or whether the applicant has taken steps to

pursue such remedy. The true question is which is the more appropriate remedy considered in the context of common sense,

the ability to deal with the questions raised and principles of fairness; provided, of course, that the applicant has not gone too

far down one road to be estopped from changing his or her mind. Analysis of the authorities shows that this is in effect the real

consideration.”

This approach was endorsed by the Supreme Court in Buckley v. Kirby [2000] 3 I.R. 431, where the Court, in a judgment delivered by

Geoghegan J., adopted the statement of Barron J. In Stefan v. Minister for Justice [2001] 4 I.R. 2003 in a judgment of mine, with

which the other members of the court agreed, I referred to the test stated by Barron J in McGoldrick and that it had been adopted in

Buckley and stated at p. 217:

“Once it is determined that an order of certiorari may be granted, the court retains a discretion in all the circumstances of the

case as to whether an order of certiorari should issue. In considering all the circumstances, matters including the existence of

an alternative remedy, the conduct of the applicant, the merits of the application, the consequences to the applicant if an

order of certiorari is not granted and the degree of fairness of the procedures, should be weighed by the court in determining

whether certiorari is the appropriate remedy to attain a just result.”

6.2 Thus it is necessary to apply the settled law to the facts of this case. There has been little dispute on the kernel facts of this

case.

6.3 It is accepted that in this case there is no internal appeal structure within the County Council because the disciplinary action was

taken by the County Manager. This is an unfortunate consequence for the applicant but it arose because the County Manager was

the decision maker.

6.4 The appeal taken by the applicant was an appeal to the Employment Appeal Tribunal. The applicant submitted a form to the

Employment Appeal Tribunal on the 19th October, 2000, and a hearing on the dismissal of the applicant took place on the 24th and

25th of October, 2001. It was adjourned when the Tribunal became aware that the applicant had obtained leave to seek judicial

review.

6.5 On this issue, the alternative remedy, the High Court held:

“I don’t decide this case on the basis of the existence of the appeal remedy but I do believe, in the circumstance of this case

that insofar as allegations were made that the evidence does not support the conclusions reached, that is a matter that can

only properly be dealt with at the level of the Employment Appeals Tribunal. It is not the function of this court to assess that

particular material. There is no suggestion that the decision made was irrational. It may be one that the Applicant feels was

harsh and that an independent assessment could give rise to him being exonerated of any wrong doing. As I say that is a

matter for the appeal process. I believe that in that context that it does afford, not only an alternative remedy, but in the

context in which I concluded that the investigation procedure and the decision making procedure did not involve an infringement

of the principles of natural justice, I believe that that is the appropriate remedy in the circumstances of this case”.

6.6 In assessing the nature of the alternative right of appeal and judicial review, there are a number of relevant factors. Included in

these factors are the following. First, the fact that the applicant has already commenced this alternative remedy and that there has

been a hearing of the matter over two days. This appeal now stands adjourned pending this judicial review. While these appeal steps

are not a determinative factor, in the circumstances they are a weighty factor. Secondly, the issues which the applicant raises relate

to natural justice and to fairness, which relate to the merits of the case also, which issues may be addressed and determined by the

Employment Appeal Tribunal. Thirdly, the matters raised do not relate to net issues such as points of law or jurisdiction. Fourthly, the

essence of the issue raised relates to evidence as to the allegedly fraudulent actions of the applicant and this may be dealt with fully

by an appeal before the Employment Appeal Tribunal, rather than as a review of procedure. It is manifestly a matter for an appeal

process rather than a review of procedure. Fifthly, the applicant seeks reinstatement of his post and he referred to the low statistical

figures for reinstatement by the Employment Appeal Tribunal. I have considered this as a factor but I do not give it a heavy weighting

given that the Tribunal has the jurisdiction to hear an appeal and to reinstate, and the applicant may present his full case on the

appeal. Sixthly, there is a right of appeal from the Employment Appeal Tribunal to the Circuit Court, then to the High Court and on a

point of law to the Supreme Court.

6.7 Applying the common law as to the position when there is an alternative remedy I have come to the following conclusions. The

issue of fair procedures will be dealt with later in this judgment. As to the consequences to the applicant, there is no doubt they are

serious. In assessing the relative merits of the appeal to the Employment Appeal Tribunal as against judicial review, the true question

is as to which is the more appropriate in the context of common sense, the ability to deal with the questions raised and the principles

of fairness. I am satisfied on each of these grounds that the appropriate remedy is that of the appeal to the Employment Appeal

Tribunal. It has the ability to deal with the questions raised and the principles of fairness.

6.8 Consequently, on this ground I would dismiss the appeal and affirm the view of the High Court that the matter should continue

before the Employment Appeal Tribunal.

7 The third issue on this appeal is whether the procedures in the County Council were so unfair as to warrant a judicial review.

7.1 It was submitted inter alia that the applicant was charged with a criminal offence, namely fraud, and that in the circumstances

there was a need for an oral hearing, with the right to cross-examination.

7.2 The first important point on this issue is that this is a civil procedure, not a criminal trial. It is a civil case arising out of disciplinary

proceedings.

7.3 There was no oral hearing before the County Manager in this case. If an oral hearing had been conducted, it would be required to

proceed in accordance with the rules of natural justice. The applicant submitted that an oral hearing was required in all cases where

dismissal is the penalty for dishonesty. The Council submitted that it had in place a procedure for dealing with breaches of the

standards of conduct of the Station Officer.

7.4 Tipperary (South Riding) Fire Authority Disciplinary Procedure provided:

“Disciplinary Procedure

1. Introduction

This procedure sets out the standards of conduct expected of a trained and disciplined service such as the Fire Service for the

ranks of retained Station Officer, Sub-Officer, Driver/Mechanic, and Fire Fighter of the Fire Authority. It identifies breaches of

the standards of conduct, the range of sanctions/disciplinary measures that will pertain.

2. General Principles

In line with the general principles of natural justice and fair procedures:

a) Details of any allegations or complaints will be put to the fire fighter concerned and no disciplinary action will be taken

until a full investigation has been carried out.

b) At every stage the fire fighter will be given the opportunity to state his/her case and to avail of representation by a

trade union or work colleague.

c) A fire fighter has the right to appeal against any disciplinary penalty imposed, in accordance with the provisions of the

Grievance Procedure.”

7.5 A memorandum by Con Murphy, Chief Fire Officer to Mr. E. Gleeson, County Manager, dated 10th May, 2000 states:

“I have to inform you that today at 14.00 hrs. I called Station Officer O’Donnell to my office and put allegations of misconduct

to him. It had come to my notice that he had been submitting pay sheets for the Clonmel Brigade in which he had included

himself, for incidents which he had not attended. My preliminary investigation revealed a sample of some eleven such incidents.

When I placed the allegations before him, in the presence of Assistant Chief Fire Officer Swords he admitted the offence. I

informed him that he was suspended from duty forthwith. I informed him of his right to be represented and suggested,

therefore, that he should consider whether he wishes to avail of such representation. He left the office to speak to his wife and

returned at about 16.00 hrs. I again put the allegations to him, in the presence of A.C.F.O. Swords, and he again confirmed

that they were true and declined to offer any explanation or mitigating circumstances. He had, he said, tried and failed to

contact any union official. I informed him that I would be preparing this report and that I would submit it to the County Manger

on the morning of 11th May 2000.”

By letter dated 11th May 2000, from the County Secretary, the Applicant was informed as follows:

“The County Manager has received a report from the Chief Fire Officer which contains serious allegations against you regarding

falsifying records in order to gain payment for attendance at fires. Given the serious nature of the allegations the County

Manager has decided that a full investigation of all the circumstances be carried out and has nominated Mr. Con Murphy, Chief

Fire Officer and Mr. Aidan Fennessy, Personnel Officer to carry out this investigation.

I would be obliged if you would attend the Training Room, County Hall, Clonmel at 9.30 a.m. on Friday 12th May 2000 to meet

the Investigation Team. If this time and date are not convenient the Council would be pleased to arrange an alternative. I wish

to advise you of your right of representation at this or any other meeting in relation to this matter. Pending the outcome of the

investigation the County Manager has decided that you are suspended with pay with effect from 10th May 2000.”

The applicant attended a meeting on 12th May, 2000, accompanied by a Union Official. He presented the investigation team with a

written response and requested time to consult a solicitor and arrange to prepare a defence to the allegations. The applicant

attended a further meeting with the investigation team on the 22nd May, 2000, with his solicitor. The applicant was informed of a

meeting on 15th June, 2000, between the investigation team and Seamus Harte and Liam Corbett, substation officers, and he had a

copy of the memorandum of that meeting. As he said in his grounding affidavit at paragraph 13:

“I became aware that the allegation now being made against me was that I was completing the fire report and signing the top

copy of the attendance book for incident and/or fires that I did not attend either at the incident or in the station.”

He disputed this. He pointed out that he was not present at this meeting. The applicant, through his solicitor, submitted a detailed

response to the County Council on 22nd June, 2000, and a revised response dated 7th September, 2000.

By letter dated 3rd October, 2000, the applicant was dismissed. The letter stated:

“I refer to the investigation that has recently been conducted into the allegation that you claimed payment for incidents which

you did not attend (either at the scene or at the Fire Station) and that you falsified documentation to facilitate such claims for

payment. The investigation has been completed and the County Manager, having given due consideration to all information

made available to him is satisfied that the allegation has been substantiated.

The County Manager is satisfied that disciplinary action should be taken and given the serious nature of the misconduct has

decided that the most appropriate form of disciplinary action is to dismiss you from your employment as Station Officer. The

County Manager has considered the question of the effective date of the dismissal, given the fact that you have been on

suspension with pay since the 10th May, 2000, and that there was a loss of funds incurred by the Council through your actions.

However, as an exceptional measure he has decided that you should be dismissed with effect from 3rd October, 2000. A

separate letter will be issued to you with regard to the loss of funds and to the consequential effects of your dismissal

particularly in relation to the agreement under which you occupy a residence owned by the Council”.

7.6 The issue as to fair procedures was considered and determined by the High Court, as follows:

“With regard to the alleged breach of the principles of natural justice, I’m satisfied that the essential complaint made in this

case relates to the investigation of complaints alleged against the Applicant. I’ve heard the evidence of two witnesses who

have been cross-examined, Mr. Murphy and Mr. Gleeson. They indicate the approach of the various individuals in the context of

the overall treatment of the Applicant which is the subject matter of these proceedings. Mr. Murphy indicated that he carried

out a preliminary investigation in the first instance and having been possessed of certain material that he confronted the

Applicant in relation to an allegation of improperly obtaining allowances. He has given evidence which indicates that at the

outset the Applicant admitted wrongdoing in this regard. He’s expressed the matter as one which was clearly indicated to him at

the time. He says that the Applicant straight-up admitted wrong doing twice but subsequently retracted the admission. He

expressed the view that he was convinced by the admission on the part of the Applicant. Nevertheless this didn’t conclude

matters because it was necessary at that stage to proceed with a formal enquiry and at this stage Mr.Gleeson appointed Mr.

Murphy and a colleague Mr. Fennessy to investigate the matter and this they did.

It’s not necessary again to rehearse all the evidence in relation to the investigation that was carried out but it proceeded over

a period of time and ultimately resulted in a report to the County Manager, Mr. Gleeson. I’m quite satisfied that the principles of

natural justice which were sought to be relied upon do not apply in the context of the investigation procedure outlined that

there wasn’t as such a right to natural justice in the context advanced – in context of the investigation itself and in this regard

while there may be a perception on the part of the Applicant that Mr. Murphy was biased – he may well have formed a clear

view in relation to the wrong doing on the part of the Applicant, he was not part of the decision making process and the

decision in the case rested entirely with the County Manager. It’s quite clear from the evidence before this court that the

County Manager did carry out an investigation into the matter and he had the benefit of the reports. The case was largely

related to documentary material and also included evidence of admissions which were apparently made by the Applicant when

first confronted with the matter.

I’m quite satisfied that the County Manager realised his obligations in the context of the requirements of natural justice and

afforded to the Applicant an opportunity to respond to the situation. Documentation was furnished to the Applicant’s Solicitor

on his behalf and a response in a very detailed form which had been prepared by his solicitor was received by the County

Manager before the ultimate decision was made.

It’s not necessary for me to express any view as to whether I would come to the same conclusion as the County Manager if I

was asked to assess the matter because this is the subject matter of an Appeal to the Employment Appeals Tribunal and that

body will have to investigate the matter for itself and reach it’s own conclusions on the basis of the evidence before it. I’m

struck by the fact that while one of the reliefs sought by the Applicant relates to a Declaration in the context of a complaint

that he wasn’t afforded the right to an impartial appeal that at the time when he sought the leave of this court to bring these

proceedings he had in fact invoked the appeal process to the Employment Appeals Tribunal which was not notified to the Court

at the time…

The complaint is made that there has been an absence of a hearing to the Applicant. Now, the term ‘hearing’ doesn’t

necessarily comprehend an oral hearing in any given case and what is required in any given case will depend on the facts of the

particular case. In the instant case much of the material that was relied upon was documentary and I believe that the material

before the Respondent was such that it didn’t require an oral hearing in the context it is contended for. However, the Applicant

was afforded the full right to put forward all matters in his defence.

In so far as the material presented by Mr. Harte seems to have represented photocopies of documents, no case has been made

before this court to show that the absence of a cross-examination of Mr. Harte has given rise to a breach of any principle of

natural justice. It is in those circumstances that I refuse the relief which is sought and I direct that the matter should continue

before the Employment Appeals Tribunal.”

The applicant has appealed against this determination of the High Court and in written and oral submissions urged that on this issue,

he should be entitled to relief by way of judicial review.

7.7 Having considered all the circumstances of the case, and the order and judgment of the High Court on this issue, I would not

intervene with the judgment of the High Court, rather I would affirm the decision. The High Court judge had the advantage of seeing

and hearing oral evidence on the treatment of the applicant. There was evidence as to the procedure leading to the report to the

County Manager. There is no evidence that it was unfair. While the applicant raised a concern of his perceived bias of Mr. Murphy,

Mr. Murphy was not the decision maker and there is no question of any perceived bias of the County Manager. The High Court was

satisfied that this procedure, largely in relation to and by way of documentation, afforded an opportunity to the applicant to respond.

I find a relevant factor also that the applicant had legal representation during the procedure. A judicial review considers the

procedure adopted. It appears to me that the appropriate remedy here is, rather than to assess the procedure, to have a full hearing

of the facts.

Insofar as there was a hearing I would not intervene with the decision of the High Court. Thus on this third issue I would dismiss also

the appeal and affirm the order of the High Court that the matter should continue before the Employment Appeal Tribunal.

8 This decision relates to the three issues as argued on this appeal. While counsel made reference to recent legislation this was

neither opened nor considered.

9 Conclusion

There were three primary issues before this appellate court. On the first issue, as to whether the procedure by way of judicial review

was applicable, I am satisfied that the case is justiciable as a matter of public law and that the remedy of judicial review does lie. On

the second issue, as to the availability of an alternative remedy, I am satisfied that the appropriate remedy is that of the appeal to

the Employment Appeal Tribunal. Thirdly, it was submitted that the procedures were so unfair as to warrant a judicial review, and on

this ground I would affirm the decision of the High Court and dismiss the appeal. Consequently, I would order the dismissal of the

appeal.