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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