The Gazette 1988

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 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.

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 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

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