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GAZETTE
OCTOBER 1988
mother informed the social worker that she
had decided to have the child adopted. The
child was put into a children's home pending
placement. The adoption society later placed
the child w i th adoptive parents but w i t h o ut
informing the mother in advance Later the
mother sought to repudiate any consent.
The trial judge in the High Court ruled in
favour of the mother. The adoption society
appealed to the Supreme Court.
Henchy J., in the majority judgement in
the Supreme Court, considered that the
issue was whether w h en the mother signed
the form expressing her consent to the
placement by the adoption society of her
illegitimate child, her consent was free and
fully informed. For the purpose of an appeal
f r om a judgement of the High Court to the
Supreme Court, facts may be divided into
t w o categories. Firstly, there were the
p r i m a ry or basic f a c ts w h i c h w e re
determinations of fact depending on the
assessment by the judge of the credibility
and quality of the witnesses. Henchy J.
stated that it was only w h en the findings of
the primary fact cannot in all reason be held
to be supported by the evidence that the
Supreme Court will reject t h em; see
Northern Bank Finance -v- Chariton
[1979]
IR 149. The second category of facts relates
to the secondary or inferred facts. Henchy
J. stated these are facts which do not follow
directly from an assessment or evaluation
of the credibility of the witnesses or the
weight to be attached to their evidence but
derive from inferences drawn from the
primary facts. The Supreme Court would feel
free to draw its o wn inference if it considered
that the inferences drawn by the judge of the
High Court were not correct; see
Northern
Bank Finance -v- Chariton
and
Whitehouse
-v- Jordan
[1981] 1 A11 ER 207.
H e l d in allowing the appeal
1. The mother freely and fully gave her
consent to the placement of the child for
Adoption;
2 . As the child was n ow seven years old
and fully integrated into the family of the
adopters, an order would be made under
s. 3 of t he
Adoption
Act
1974,
authorising the A d o p t i on Board to
dispense w i th the mother's consent to
the adoption on the grounds that it was
in the best interests of the child that
what was an adoption in fact should also
become an adoption in law.
J.M. and G.M. -v- An Bord Uchtala,
Supreme
Court,
(per Henchy
J. with Griffin
and
Hederman J. J. concurring,
McCarthy J. and
Gannon J. dissenting) 31 July
1987,11988]
ILRM 203.
EAMONN G. HALL
The following case was first reported in the
May 1988 Gazette, where a printing
error
appeared in the final paragraph.
The report
is here reprinted in full.
EMPLOYMENT
Whether power to suspend can be
delegated - Whether suspension
becams invalid because of failure to act
within a reasonable time.
The Plaintiff was a postman. He was initially
employed by the Department of Posts and
Telegraphs. Under the terms of the Postal
and Telecommunications Act, 1983, he
transferred into the employment of A n Post.
Section 4 5 of the Act guaranteed that his
conditions of service w i th A n Post would be
no less beneficial than those he had enjoyed
prior to the transfer. Under the previous
conditions of service, he was liable to
suspension by a Suspending Officer in
circumstances specified in s.13 of the Civil
Service Regulations Act, 1956. In January
1984, the Chief Executive of An Post
p u r p o r t ed to give similar p o w e rs of
suspension to holders of certain designated
officers. One of the principal matters argued
by the Plaintiff was that this delegation of
the power of suspension was
ultra vires.
On 9 May 1 9 84 the Plaintiff w as
s u s p e n d ed w i t h o u t pay for a l l e g ed
dishonesty. A n investigation into the
allegation was commenced. The Plaintiff's
solicitor demanded his reinstatement on the
basis that the suspension was
ultra vires.
A
H i gh C o u rt a c t i on c h a l l e n g i ng
t he
suspension on this and other grounds was
commenced.
Soon afterwards, A n Post's solicitor
indicated tht the disciplinary proceedings
would not be taken pending the outcome of
criminal proceedings against the Plaintiff. In
November 1985, the Plaintiff was tried on
indictment and was acquitted on all counts.
A n Post continued to refuse to reinstate the
Plaintiff, however, and this refusal was
supported by the Supreme Court (Henchy J.
w i t h He d e r man J. concurring) w h i ch
considered that:
" T h e disposition of the charges against
the Plaintiff by findings of not guilty did
not preempt or otherwise trench on the
due exercise by A n Post of its statutory
right to suspend or dismiss in respect of
the same conduct w h en treated as
breaches of discipline."
A n Post decided not to proceed w i th the
prospective dismissal of the Plaintiff until his
High Court proceedings were concluded. In
July 1986 the High Court denied the Plaintiff
the reliefs he sought and dismissed his claim.
He appealed to the Supreme Court on three
main grounds.
(1) That the suspension was void
ab initio
because there was no jurisdiction
vested in either the Board or the Chief
Executive of an Post to delegate the
power of suspension.
The Supreme Court dismissed this ground
of appeal on the basis tht the transfer
effected by the 1983 Act subject to the
s a me c o n d i t i o ns of e m p l o y m e nt as
previously applied carried w i t h it by
necessary implication the then existing
rights of suspension,
mutatis
mutandis.
( 2 ) The second main ground of appeal was
that the suspension was void
ab initio
because the Plaintiff was not informed
adequately of the reasons for his
suspension.
On this point, the Supreme court accepted
that the Plaintiff was entitled to an adequate
statement of the reasons for suspension but
if pointed out the the High Court had found
as a fact that the Plaintiff had made aware
of w h y he was being suspended. The
Supreme Court could not disturb that finding
of fact.
( 3 ) The third main ground of appeal w as
t h a t t he s u s p e n s i on w as invalid
because A n Post failed to act w i t h in a
reasonable time on foot of it.
The Supreme Court accepted that " t h e
fundamental requirements of justice meant
that the uncertainty and the hardship of
suspension w i t h o ut pay be brought to a
conclusion one way or the other as soon as
was reasonably practicable"
The majority view of the Court, as
expressed by McCarthy J, w i th Finlay C.J.
and Walsh J. concurring, was that the
continuing suspension of the Plaintiff and
the postponement of the investigation
pending the o u t c ome of the criminal
prosecution, could not be justified once the
Plaintiff expressed his w i sh to have the
matter dealt with without delay. The majority
accepted that "there may be circumstances
in w h i ch it wo u ld be proper to postpone an
investigation pending a criminal trial" but it
wafc " u n a b le to prescribe t h em in a case
where an employee is suspended w i t h o ut
pay and wants the investigation to proceed."
Therefore, the majority took the view that
the suspension of the employee without pay
for a period of eighteen months was not a
reasonable construction of the power of
suspension contained in Section 13 of the
1956 Act. The minority view (Henchy J.
w i t h Hederman J. concurring) was that to
h o ld t h e i n q u i ry w o u l d h a ve b e en
undesirable as the issues w h i ch would have
necessarily arisen could not have been
segregated from the issues raised in the High
Court proceedings.
The appeal was allowed.
Stephen Flynn -v- An Post. - Supreme Court
- 3 April, 1987 - [1987] I.R. 68
DECLAN MADDEN
EMPLOYMENT
Dismissal for misconduct — All the
reasons not stated — Therefore not
prepared to hold that dismissal was
wholly or mainly for reasons given:
Dismissal unfair.
T h e a p p l i c a nt w a s e m p l o y ed as an
Ambulance Driver w i th the Southern Health
B o a r d. He w a s d i s m i s s ed f r o m his
employment for alleged misconduct on 2
September 1985. He had previously been
dismissed in February 1985, but following
a hearing before a Rights Commissioner it
was recommended that he should be re-
employed w i th the Board and that the period
b e t w e e n t h e d i s m i s s al a nd t he re-
employment should be treated as a period
of suspension. The respondents agreed to
accept the Recommendation and take the
applicant back into employment w i t h o ut
recriminations.
Wh en the applicant was taken back he
w as rostered as a relief driver rather than a
permanent driver at Tralee as he had been
previously. He challenged this change in
working arrangements. He was alleged to
have verbally abused his Supervisor about
the c h a n ga A n investigation ensued but
before it w as completed another matter
arose. This was a complaint by the Matron
of Listowel Hospital that the applicant had
engaged in unprofessional conduct in that
he had put his hand on the shoulder of a
nurse on t w o separate occasions and had
put his arm around another nurse in the
h o s p i t al c o r r i d o r. B o th n u r s es
h ad
complained of the incidents.
vi