15
December 1998
MORRIS
P:
THE
CLAIM
This
matter comes before the Court pursuant to an Order made on the 3 November, 1997
(McGuinness J) whereby the Applicant was given leave to apply by way of
Judicial Review for:
(I)
a Declaration that the purported decision of the first named Respondent not to
appoint the Applicant to the post of Principal Officer as agreed between the
Parties in or about the month of December 1996 was invalid and ineffective.
(II)
a Declaration that the Applicant is the lawful incumbent of the post of
Principal Officer in the service of the first named Respondent pursuant to an
agreement in that regard entered into by the Parties in or about the month of
December, 1996.
(III)
A Declaration that the first named Respondent was performing a quasi Judicial
function in purporting to revoke an agreement whereby the Applicant was to be
appointed to the substantive post of Principal Officer in the Blood Policy
Division of the Department of Health and required to act in accordance with the
principles of natural and constitutional justice.
(IV)
An Order of Mandamus requiring the appointment of the Applicant as Principal
Officer in the Department of Health pursuant to the said agreement in the month
of December 1996.
(V)
An Order (if necessary) directing the second named Respondent to sanction the
appointment of the Applicant to the substantive post of Principal Officer in
the Department of Health.
THE
BACKGROUND
The
Applicant is a Civil Servant and was appointed to the Department of Health on
the 21 June 1976. She was engaged in the Blood Policy Division of the
Department of Health with responsibility for all hepatitis C related issues
from February 1994 to August 1997. Her substantive post was Assistant Principal
Officer. It is common case that during this time she carried a very heavy
workload and a high degree of responsibility. Mr Geny O'Dwyer, then Secretary
of the Department of Health now Secretary General of the Department of Health
and Children described that the Applicant had "an unprecedented workload for
the Division which had required as a routine a seven day working week and loss
of almost all annual leave." It is also common case that the Applicant had
developed a very high level of legal expertise including a knowledge of the
work of the Tribunal of Enquiry into the Blood Transfusion Service Board and
that she enjoyed the full confidence of the Chief State Solicitor's Office and
the Attorney General's Office and was highly respected by Counsel engaged by
the State in these matters.
For
these reasons Mr Donal Davitt the Assistant Secretary of the Blood Division of
the Department of Health repeatedly suggested to Mr Gerry O'Dwyer, the
Secretary of the Department of Health, that he, Mr O'Dwyer, should appoint the
Applicant to the substantive position of Principal Officer. As Mr O'Dwyer did
not seem to Mr Davitt to be prepared to make such an appointment a meeting
between the Applicant and Mr O'Dwyer was held on the 23 December, 1996 in which
the Applicant alleges that Mr O'Dwyer entered into a contract with her (the
nature and detail of which is dealt with in more detail later on in this
Judgment). It is alleged by the Applicant that Mr O'Dwyer has been in breach of
this contract and by reason of this Breach she claims to be entitled to
Judicial Review.
THE
FACTS AS STATED BY THE PARTIES
It
is alleged by the Applicant that Mr Davitt recognised the Applicant's hard work
and total commitment to her job and considered that the Applicant should be
appointed to the substantive position of Principal Officer. At that time she
held the position of Assistant Principal Officer. When he approached Mr
O'Dwyer, the Secretary of the Department of Health, he was told that he, Mr
O'Dwyer, could not give a commitment to appoint the Applicant to the position
of Principal Officer at that time but that he agreed he would seek the approval
of Mr Hurley, the Secretary of the Department of Finance to appoint the
Applicant to the position of "Acting Up" Principal Officer with allowances. As
neither the Applicant nor Mr Davitt could see any progress being made, a
meeting was arranged between Mr O'Dwyer and the Applicant and this meeting took
place on the 23 December, 1996. It is the Applicant's case that at that meeting
she made her case pointing out the commitment that she had to her work the long
hours that she had worked and the responsibility that she had carried and she
expressed the view that the probability was that this level of commitment would
be required into the future unless another Assistant Principal Officer was
appointed to the Division. During the course of this discussion the Applicant
says that Mr O'Dwyer suggested making an ex gratia payment to her from the
Merit Award Scheme. He had already made such an award in the previous year.
However, the Applicant was not interested in a cash award but in her future
career. The Applicant indicated to Mr O'Dwyer that she would wish to be
appointed to the position of substantive Principal Officer but that she would
be satisfied with an "Acting Up" Principal Officer position in the interim.
The
Applicant says that the outcome of that meeting was that Mr O'Dwyer agreed that
the Applicant would be appointed to the position of "Acting Up" Principal
Officer and that he said he was then in a position to do so and that then she
would be appointed to the next substantive Principal Officer post in priority
to those officers (if any) already in receipt of "Acting Up" Principal Officer
allowances. The Applicant says that Mr O'Dwyer said that this appointment to
Principal Officer would arise "sooner rather than later" and that her
appointment to the "Acting Up" position would take place before the end of
January 1997.
The
Applicant says that on the basis of this offer she agreed to continue to work
as before with the utmost commitment and that she made it clear that she would
be making domestic arrangements on the basis of the agreement.
In
summary therefore it is the Applicant's case that at that meeting on the 23
December 1996 it was agreed:
(a)
That she would be appointed to the position of "Acting Up" Principal Officer
and that this appointment would be made before the end of January 1997.
(b)
That this appointment would take effect and rank from the 1 January 1997.
(c)
That she would be appointed to the next substantive Principal Officer position
in priority to those officers already in receipt of an "Acting Up" Principal
Officer allowance.
The
significance of an "Acting Up" Assistant Principal Officer position is that an
Officer in receipt of such an allowance takes his or her place on the ladder of
promotion to the position of Principal Officer depending on the date on which
he receives his or her allowance. The Applicant's case is that it was agreed
that her "Acting Up" position would rank from the 1 January 1997.
It
is the Applicant's case that Mr O'Dwyer's attitude changed towards her after
they had given evidence to the Tribunal of Enquiry on the 14 and 15 January
1997. Their evidence contradicted each other and it is the Applicant's case
that thereafter Mr O'Dwyer became hostile towards her.
On
the 4 February 1997 she says that she met Mr O'Dwyer and reminded him of the
agreement to appoint her to an "Acting Up" Principal Officer position before
the end of January 1997 and that she got the clear impression that Mr O'Dwyer
was dismissive in his response. She again met Mr O'Dwyer on the 26 February
1997 when she again reminded Mr O'Dwyer of their agreement and Mr O'Dwyer
agreed to implement the agreement by the 5 March 1997. On that occasion she got
the impression that Mr O'Dwyer was seeking to resile from the agreement of the
23 December. He said he is unable to obtain approval for the "Acting Up"
Principal Allowance from Mr Hurley. As a result the next day on the 27 February
1997 the Plaintiff wrote to Mr O'Dwyer setting out the terms of the agreement
of the 23 December and indicating that she was anxious that the agreement would
be put into effect without further delay, referring to the fact that the
meeting the previous day was unsatisfactory and indicating that she would like
to have full implementation of the agreement and pointing out that she had
honoured her side of the arrangement.
On
the 21 March 1997 Mr O'Dwyer requested Mr Devitt to have the Plaintiff prepare
a memorandum for Mr O'Dwyer's signature which she believed would result in the
payment to her of the "Acting Up" Allowance. In fact this document was to give
effect to a "unique" arrangement whereby the Plaintiff was to be paid
fortnightly a sum from the Merit Fund equivalent to what she would have
received as an "Acting Up" allowance although she was never informed of this
fact. She believed that Mr O'Dwyer had given effect to the arrangement to grant
her an "Acting-Up" allowance.
Two
substantive Principal Officer vacancies arose in June of 1997. The Applicant
was not appointed to either of these posts even though she believed she had
been appointed to Assistant Principal Officer with "Acting Up" allowances with
seniority backdated to the 1 January 1997 and she would therefore have ranked
in priority to either of the two officers appointed.
On
the 9 July 1997 the Plaintiff in the belief that she was being victimised
requested a transfer from the Blood Policy Division and took leave to which she
was entitled. She says that she is now performing mere clerical work and she
says the Defendants and in particular Mr O'Dwyer are in breach of the agreement
of the 23 December 1996.
Mr
O'Dwyer in a replying Affidavit denies that at any time he reached any
agreement with the Applicant that she would be appointed to any position within
the Department of Health. He fully acknowledges the Applicant's contribution to
the work of the Blood Policy Unit and says that Mr Davitt the Assistant
Secretary for the Blood Policy Unit made a number of representations on behalf
of the Applicant in an attempt to secure her early promotion. He says that it
would not have been lawful for him to enter into any such agreement and he says
that as a recognition of the Applicant's hard work and commitment he arranged
for an allowance of £4,038 per annum to be paid to the Applicant out of
the Department's Merit Award Scheme. He denies that he has any animus towards
the Applicant either by reason of the conflict of their evidence or otherwise.
He agrees that there was a meeting on the 23 December 1996. This was held at a
time when the Plaintiff was under great pressure. He says that at that meeting
he acknowledged to the Applicant that she was discharging responsibilities at
Principal Officer level and he expressed his appreciation of the contribution
which she was making. However he explained that there were limits to his
authority and he pointed out that promotions were not made at the whim of the
Secretary of the Department but were made through a process of assessment at
the Management Advisory Committee of the Department ("MAC"). He says that he
stated that he would work towards achieving her appointment to a substantive
position but this would necessarily be gradual and he says that in the meantime
he would arrange for a payment to her of an amount equivalent to an "Acting Up"
allowance with effect from the 1 January 1997. With regard to the Applicant's
letter of the 27 February 1997 (in which she reiterates her version of the
occurrence) Mr O'Dwyer says that he didn't reply because he was in direct
communication with Mr Davitt who was supporting the Applicant's claim for
promotion and spoke to him about the letter and so it was unnecessary to reply
to the Applicant.
Mr
O'Dwyer says that there is a well established system of internal promotion
within the Department of Health and Children which involves MAC. Meetings take
place within the Department in what is known as "a consistory" where names to
fill vacancies are approved. He says that MAC decided that there were
candidates other than the Applicant who were suitable for the vacancies and
that they were subsequently promoted.
Mr
O'Dwyer says that subsequent to the MAC meetings he had a further discussion
with Mr Davitt. He recognised that in all the circumstances a case could be
made for the promotion of Miss Moran on the grounds of special needs of the
post given that the Tribunal had reported and that there was a public
commitment for a further Tribunal regarding HIV infection and the certainty
that there would be a significant continuing workload for the Blood Policy Unit
for at least a further three years. Accordingly he told Mr Davitt he proposed
to seek from Mr Hurley, Secretary to the Department of Finance, an additional
post of Principal Officer and for the appointment of Miss Moran to that post.
He asked Mr Davitt to draft that letter making this request. He improved on the
draft to strengthen it and this draft letter was duly faxed to Mr Hurley on the
2 July 1997 for his consideration. This letter got wider circulation than
anticipated and as a result Mr O'Dwyer received a letter from the local branch
of AHCS (Association of Higher Civil Servants) stating:
"It
is our expectation that any promotion either to a substantive or allowance
position will be in line with established agreements in regard to the
"confessions" system and that any appointments which will be made in the
immediate future will either be on the basis of the exercise conducted prior to
Easter or will take place after a new confessions "procedure.
If
this is not the case I would be grateful if I could be informed immediately".
A
further letter of the 8 July 1997 from AHCS includes the paragraph "Promotion
to Principal level is, as you will appreciate a matter of great sensitivity and
importance and it is imperative in the Association 's view that agreed
arrangements in the Department are followed. This is important because locally
and centrally from the perspective of the agreed partnership approach under
Partnership 2000."
In
fact at a meeting of the 4 July 1997 Mr Hurley indicated that he would be
prepared to approve the creation of a supernumerary Principal post but that the
method of filling the post was a matter for the Department of Health and
Children. Mr O'Dwyer says that he believes that the next step was to inform MAC
of the situation and this he did at a meeting of the 7 July but notwithstanding
his efforts the meeting failed to approve of the Applicant's promotion. However
a special meeting was called for the 9 July to reconsider the Applicant's
position. Before that meeting was held, but on the same day, Mr Davitt and the
Applicant requested a transfer from the Blood Policy Unit. The outcome of that
meeting was that the members of MAC were reluctant to support the promotion for
Miss Moran. Mr Davitt was not prepared to allow any further time for efforts to
be made to resolve the problem and on the 10 July 1997 Miss Moran wrote
indicating that she intended to commence legal proceedings.
FINDINGS
ON LEGAL SUBMISSIONS
Counsel
for the Respondent has submitted to me that the appointment of a Principal
officer or an "Acting-Up" Principal Officer is a function which the Minister is
required to perform personally and accordingly Mr O'Dwyer would not have been
empowered to carry out this function. I am satisfied that on the authority of
Devanney v Shields
[1998] 1 ILRM 81 and Tang v Minister for Justice [1996] 2
ILRM 46 that since this is a duty imposed on the Minister which, as the Chief
Justice said in Devanney is "normally exercised under the authority of the
Minister by responsible officials of the Minister's Department." Accordingly I
reject the submission.
It
is also submitted that on the authority of Gilheaney and Revenue Commissioners
1996 ELR 25 the Court should find that no binding contract could exist between
either of the Respondents and the Applicant.
In
my view Gilheany v Revenue Commissioners and Meehan v the Revenue Commissioners
(High Court, Unrept, 4 October 1995) are authority for the proposition that
because of
Section 17(1) of the
Civil Service Regulation Act 1956 any contract
entered into with the Minister for Finance must be conditional so that the
Minister's discretion may remain unfettered. The Applicants in Gilheaney and
Meehan failed in their claim because the Trial Judge was unable to identify any
evidence before him which showed an agreement to enter into such a conditional
contract.
The
effective relief claimed by the Applicant in this case is against the Minister
for Health and Children. I am by no means satisfied that the limitations on
contracting with the Minister for Finance extend to the Minister for Health and
Children but even if they do I am satisfied that both the Applicant and Mr
O'Dwyer were experienced civil servants familiar with promotional procedures
and were aware that the discretion of the Minister must remain unfettered.
Accordingly a term giving effect to that position should, in my view, be
implied in any contract entered into between the Parties. I make that decision
as a result of the numerous references made to MAC in the Affidavits and during
the hearing, the communications with Mr Hurley of the Department of Finance and
the fact that the Applicant is a Barrister-at-Law.
FINDINGS
OF FACT
The
Applicant claims that at the meeting of the 23 December, 1996 an agreement was
reached which comprised two separate elements to be performed by Mr O'Dwyer.
The first was that he was to arrange for an allowance to be paid to the
Applicant to elevate her to the status of an "Acting-Up" Principal Officer.
This "Acting-Up" appointment was to be made in the month of January 1997 and
was to backdate from the 1 January 1997.
The
second element, according to the Applicant, was that Mr O'Dwyer agreed that she
would be "appointed to the next substantive Principal Officer position ranking
in priority to those officers (if any) already in receipt of an "Acting-Up"
Principal Officer allowance."
With
regard to the first of these two elements I am left in no doubt that this part
of the agreement was made between the Parties at their meeting on the 23
December. In reaching this conclusion I rely upon the following facts:
(a)
I consider it of the greatest significance that the Plaintiff wrote to Mr
O'Dwyer in the clearest possible terms on the 27 February 1997 minuting the
meeting which had taken place between them and recording the fact that they
discussed the matters agreed at their meeting of the 23 December, 1996. The
assertions contained in this letter were never contradicted by Mr O'Dwyer. I do
not accept that simply because he was in close contact with Mr Davitt in
relation to the Applicant's position that he would not respond to such an
important letter if its contents did not accurately reflect the true position.
(b)
I am satisfied that on the 24 October, 1996 Mr Enright the Assistant Secretary
of the Department of Health wrote to the Department of Finance effectively
requesting that a Principal post be assigned to his Department. By letter of
the 10 January 1997 confirmation was received from the Department of Finance
for the continuation for a period of two years from the ending of the Irish
Presidency of the European Union of an allowance for principle duties to be
paid to an Assistant Principal in the Department of Health and the deployment
of that post to duties in the general hepatitis C/blood area.
In
view of this correspondence I think it is likely that even though confirmation
was not received until approximately two weeks later that Mr O'Dwyer knew that
in all probability he would be able to deliver on the first element of
precisely the type of contract the Plaintiff alleges and accordingly an offer
along these lines was realistic.
(c)
Next I am satisfied that in March 1997 when arrangements were being put in
place for the payment of "an allowance" of £4,038 per annum to the
Applicant out of the Merit Fund, the date of commencement and the amount of the
payment coincided precisely with the agreement alleged by the Applicant. To my
mind it is singularly unlikely that Mr O'Dwyer would have arranged for the
payment out of the Merit Fund of a two weekly payment, an arrangement which he
described as "unique" unless this payment was in proported compliance with his
obligations made by the agreement of the 23 December. Moreover this payment was
to be backdated to the 1 January 1997.
With
regard, however, to the second element alleged in the contract I do not accept
that it was ever Mr O'Dwyer's intention to or did he bind himself to a contract
in those terms. I believe that the arrangement envisaged by the Parties was
that the Applicant would take her place on the ladder of promotion as from the
1 January 1997 and in the ordinary way promotion would follow. Ido not believe
that the Applicant could have been under the impression that Mr O'Dwyer would
enter into an agreement which would involve by-passing the established
promotional procedures within the Department which would almost undoubtedly
result in the wrath of the Association of Higher Civil Servants as indicated in
their letter of the 2 July 1997 and the further letter of the 8 July 1997. I
believe that at all stages the Applicant was fully aware of the fact that the
road to promotion to Principal Officer was via the MAC procedure. This to me is
clear not only from her Affidavit but also from her answers in re-examination
and moreover her letter of the 9 July 1997 in which she refers to the fact that
"MAC has approved it" (her promotion).
I
accept the evidence of Mr O'Dwyer that at all stages he was willing to assist
in achieving promotion for the Applicant. I do not believe that he ever gave a
binding commitment to promote her as alleged.
I
do not accept the criticism made of Mr O'Dwyer or the suggestion that he is
motivated by malice towards the Applicant. Ido not believe that it was Mr
O'Dwyer's intention to resile from the agreement which he reached nor do I
believe that he would have gone to the lengths of preparing the charade of the
30 June 1997 (in which he sent a draft letter to Mr Hurley of the Department of
Finance seeking the Applicant's promotion) if he was activated by malice
towards her. I do not accept that the fact that "Brussels" allowance was not
made available to the Applicant was an indication of hostility towards her. I
accept the evidence of Mr O'Dwyer that situations such as this do from time to
time occur within the Civil Service.
I
am satisfied that Mr O'Dwyer made realistic efforts at the MAC meeting of the 7
July, 1997 to further the Applicant's cause. I accept his evidence that prior
to a meeting of MAC he approached a number of officers attending the meeting to
discuss the Applicant's position. I do not accept as valid the suggestion that
by establishing a cut-off point (which would basically exclude the Applicant)
Mr O'Dwyer showed bad faith. I accept his evidence that this suggestion was
made in order to reduce the number of officers to be considered to a manageable
size and that it was left open to any delegate to bring up any other name of
any other person who may have fallen outside of these boundaries. I accept his
evidence that in fact the Applicant's name was introduced and discussed.
With
regard to MAC I am satisfied that one of its functions within the Department of
Health is to consider and to exercise a control on the names of officers to be
presented to the Minister for promotion. I also accept that the Applicant's
name was considered at the MAC meeting and did not find favour among the
Delegates.
I
am satisfied that the Applicant's application for a transfer was made at a time
prior to the recalled meeting of MAC at which further consideration was to have
been given to her position.
There
is, however, a second "prong" to the Applicant's case, as so described by Mr
O'Neill in the course of his submissions. It is submitted that on the 30 June
1997 Mr O'Dwyer sought from Mr John Hurley, Secretary to the Department of
Finance establishment and approval of a substantive post of Principal for the
Blood Policy Division. This approval was informally granted. It is submitted
that having regard to the fact that this post was created specifically for the
Applicant and approval granted specifically for her that the way was now clear
for Mr O'Dwyer to proceed with her appointment without the necessity of
approaching MAC.
In
fact when the fax attracted wider circulation than had been anticipated it
generated the correspondence from the Association of Higher Civil Servants
indicating that the Association's expectation was that any promotion "will be
in line with established agreements." In the light of this correspondence in my
view it was not open to Mr O'Dwyer to by-pass MAC. Nor do I think he was under
any legal obligation to do so by appointing the Applicant to this post even
though the post had been-specifically created for her. It is my view that Mr
O'Dwyer's obligation was to arrange for an allowance as "Acting-Up" Principal
Officer for the Applicant and no more.
Given
then that there was an obligation upon Mr O'Dwyer to arrange for this
allowance, elevate the Applicant to the status of Acting up Principal Officer
and backdate her status to the 1 January 1997 and given that Mr O'Dwyer failed
to do so it is necessary to consider the consequences that flow from this.
The
Applicant claims that two other officers were promoted to whom she would have
ranked in seniority if there had been a compliance with the terms of the
agreement and it is claimed that she accordingly was improperly passed over.
I
accept the evidence contained in the Affidavit of Mr Paul Barron, Acting
Director of the Department of Health and Children wherein he recounts the
events which occurred at the MAC meeting. He says that on the 7 July 1997 he
attended at Mr O'Dwyer's office and learnt that a supernumerary post of
Principal Officer had been sanctioned by the Department of Finance and that Mr
O'Dwyer intended to propose Miss Moran for the post and hoped for the support
of Mr Barron and others. However he, Mr Barron, felt that her promotion would
do an injustice to others and confirms that Mr O' Dwyer promoted Miss Moran's
cause at the meeting in a manner that was "fully consistent with his
commitment." Mr Barron says that he spoke in favour of other candidates and the
Applicant's promotion was not approved of.
In
the circumstances I do not accept that it was open to Mr O'Dwyer to make the
appointment as suggested nor do I believe he had any obligation to do so.
I
now turn to consider the reliefs sought in the light of the above findings:
With
regard to relief no (1) in my view there was never a decision by the first
named Defendant not to appoint the Applicant to the post of Principal Officer
in December 1996 or otherwise.
With
regard to relief no (2) I do not, for the reasons stated, find that the
applicant is the lawful incumbent of the post of Principal Officer in the
service of the first named Respondent either on foot of the agreement of
December 1996 or otherwise.
With
regard to relief no (3)1 do not find that the first named Respondent revoked
the agreement alleged.
(d)
In my view the Applicant is not entitled to the Order of Mandamus claimed or to
the Order sought in paragraph No (5).
