High Court Proceedings October 2002
Background
CFO accuses Station Officer of claiming payment for fires incidents which he had not attended (after tip-off from sub officer Bloggs). SO dismissed after 6 months. Appeal to EAT lodged and Judicial Review sought.
EAT hearing collapses when Chairman realises that remedy has been sought from the High Court.
Main basis of appeal is that the 'accuser' went on to 'investigate' and 'find' Applicant guilty and effectively 'decided' on the punishment. Also, Applicant complained of having no 'companion' when charge was put and not being present [to cross examine] when others were interviewed.
The following is a summary of the decision compiled by the Councils legal team.
An Other dismissed for fraudulent claims in respect of ‘attendance’ at fires – Unfair Dismissal- Appeal to Employment Appeals Tribunal adjourned after one day- Judicial Review – Lack of Fair Procedures - Private Law/Public Law issue – Availability of Alternative Remedy- Whether principles of Natural Justice/Constitutional Justice denied to the Applicant.
Judgement
of O’Caoimh (High court – 30th October 2002)
(The learned Judge analysed the facts as presented and the issues and arguments of both sides before arriving at the following decision).
1.
Public Law v Private Law
It depends on the circumstances of each case. The Eogan and Beirne decisions are of some guidance. However, a contract of employment was drawn up between the Applicant and the Respondent (which contained relevant provisions as to the rights and duties of the applicant in cases such as the present one). The relationship in that context is one of private law. Therefore, the relief sought doesn’t apply in the Judicial Review proceedings.
There was an investigation of complaints against the Applicant. The evidence of the two witnesses indicates the approach to the treatment of the applicant. Mr. Murphy (Witness1) indicates he carried out a preliminary investigation and with the possession of certain material, confronted the applicant. At, the outset, he maintains that the Applicant admitted his guilt and that was clearly indicated to him at the time. He says that the Applicant admitted this twice (at two separate meetings on 10th May 2000) and then subsequently retracted it. However a full inquiry had to be proceeded with. Mr.Gleeson (County Manager and Witness2) appointed Mr. Murphy and Mr. Fennessy to the matter and they conducted such. This culminated in a report to the County Manager. I am satisfied that the principle of Natural Justice advanced (by the Applicant) did not apply to the process and while the perception may have persisted that Mr. Murphy may have been biased, he was not part of the decision making process. The County Manager made the decision with the benefit of the report and also included documentary material and evidence of the admissions initially made. The County Manager realized the obligations of Natural Justice and accorded the Applicant opportunity to respond. Advanced documentation and detailed submissions were received from the Applicant before a final decision was made on the matter.
It
is not necessary for me to decide if I would have decided the same as the county
manager as that is a matter for the Employment Appeals Tribunal.
The time the Applicant sought relief
in this court (December 2000) he had commenced proceedings in the EAT and this
was not notified to the Court at the time of Leave.
I am not deciding the matter on the alternative remedies at this point.
This is for the EAT. There
is no evidence that the decision itself was irrational.
However, in any event, the harshness (etc.) is for the appeal process.
Having concluded that the principles of Natural Justice were not
infringed, the appropriate remedy is the EAT.
With regard to the complaint of lack
of hearing for the Applicant, the meaning of ‘hearing’ depends on the facts
of the case. Here, much of the
evidence was documentary and the respondent did not require to conduct an oral
hearing. The Applicant was however
afforded full opportunity to make his defense.
Finally, as to Mr.Bloggs photocopying
of documents, in the absence of cross-examination, there is no evidence of the
breach of Natural Justice in this regard.
Some CFO conclusions which might also be drawn (although not drawn by the Judge):
It might have been better if the initial allegations had been put by someone else e.g. ACFO Ops. and then reported to the CFO.
It might also have been better if the Manager had delegated the entire matter to a Asst. Co Man or Dir. of Service in order to have maximum distance from the 'investigation process'. The DoS could then have established the Investigation Team [possibly including an external CFO for transparency]. It seems that the greater the number of 'steps' in the process the better.
It was critical that the Manager met the Applicant [and his Solicitor] and allowed further submissions, oral and written i.e. considered all possible matters [not just the Investigating Teams report. He might also have informed the Applicant of his conclusion i.e. guilt and invited/allowed further submission [mitigating factors, etc.] before deciding on the penalty.
You will note that the Judge seems to have avoided setting any great precedent..
Does any body else have 'case law' in this or any other relevant field?