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1. The Applicant brought Judicial Review proceedings and was given liberty by Order dated 24th February, 1992 to apply for Certiorari or alternatively a Declaration that the Applicant's removal was null and void, and for damages.

2. The grounds upon which relief was sought are:-

3. To this was added by Order dated 11th January, 1996 that the Applicant was denied his constitutional right to fair procedures in that he was denied the right to cross examine persons giving adverse evidence against him.

4. Following the granting of leave to bring judicial review proceedings, discovery was made and several supplementary affidavits were filed. A hearing commenced on 11th January, 1996 and was adjourned on 12th January to enable further discovery to be made. More affidavits were filed and the proceedings were ultimately resumed on

5. In his grounding affidavit, the Applicant exhibits his sick leave record. He also states that during his career he received a number of warnings from the Department of Justice concerning his sick leave and warning him that his job was at risk. He said he had not retained the warnings other than the one dated 15th December, 1988 which he exhibits.

6. In the replying affidavit filed on behalf of the State, Brian Purcell exhibits several written warnings to the Applicant from the Department in 1983, 1984, 1985 (three warnings) 1988 and 1991. These are as follows:-

7. He was warned of the need for an immediate and sustained improvement in his sick absence record with particular emphasis on the number of occasions on which he availed of sick leave.

8. He was told the Chief Medical Officer had indicated that his sick leave record did not suggest he had a health problem and that his suitability for retention was doubtful. He was accordingly warned that unless his attendance record improved his job would be at risk.

9. He was again told the Chief Medical Officer did not suggest he had a health problem. He was warned that consideration would again be given to his dismissal unless he effected a complete reversal in his attendance record.

10. The Applicant wrote on 6th March, 1991 in reply to this letter asking that the Minister would consider a number of points which he wished to make in relation to his sick absence record. He said injuries sustained as a result of his involvement in rugby and GAA had been a significant factor in his sick leave record. He had now discontinued his involvement in both GAA and rugby.

11. He said about one-third of the total number of sick days were related to treatment received in various hospitals, both in-patient and out-patient He gave as examples:-

12. From 13/10/1980 to 26/10/1980 - assault.

13. From 27/2/1984 to 9/3/1984 - due to an knee injury sustained in a rugby match.

14. From 18/8/1984 to 14/9/1984 - related to a knee injury.

15. From 12/6/1985 to 18/6/1985 - ankle injury.

16. From 30/12/1989 to 6/2/1990 - surgery to his hand.

17. From 31/8/1990 to 17/9/1990 - back problem (muscular spasm).

18. He said he fully appreciated that his sick absence record was unacceptable. He asked to be afforded an opportunity to effect a vast improvement in his sick absence record.

19. The Prison Officers Association also made representations in a letter dated 12th March, 1991 to the Minister in which Mr. Denis McGrath, the General Secretary, states that the Applicant's sick leave is very high and difficult to explain. He makes the same point that injuries were mainly as a result of playing GAA and rugby games and that a total of one-third of the sick leave was because of these injuries. He asked for the Minister to afford the Applicant a final opportunity to prove he was in fact capable of giving regular service.

20. The memorandum to Government dated the 16th July, 1991 is also exhibited. Personal details of the Applicant are given and the memorandum states as follows:-

21. During a subsequent interview with an officer of the Department of Justice he promised to ease up on sport to ensure less injuries.

22. The officer's record shows that from 1980 to 1990 he was absent on sick leave on 107 separate periods of which only 15 seem to have been in the injury category - leaving 92 periods of absence for other miscellaneous reasons. Frequency of absences rather than total number of days is the principal characteristic of chronic absenteeism.

23. The officer has had four very serious warnings since 1984 of the need to improve if he wished to keep his job. There has been no improvement. In the last year he was absent on 11 occasions for a total of 74 days. The Minister accordingly remains satisfied that he ought to recommend to the Government that they should dismiss Officer Gaughan because of his chronic absenteeism.

24. The Government made that decision and the Applicant was so informed by letter dated 16th July, 1991. In reply to an enquiry, the Applicant's Solicitor was informed that the reason for dismissal was persistent absenteeism. By a further letter dated 17th January, 1992, the Applicant's Solicitor was informed that persistent absenteeism was considered to be a sufficient reason for dismissal regardless of whether or not an officer was considered to be absent for genuine reasons.

25. In his grounding affidavit the Applicant raises the following points that the decision of the Government was reached without a conclusion whether sick leave was taken for a valid reason; that the Government took into account a Memorandum to Government which was not disclosed to him and took into account the view of the Medical Officer; that at no time was he informed of the nature of the advice given by the Medical Officer. He said it was clear that an independent medical examination should have been arranged to establish whether there were any underlying medical problems and he claims that if his case was dealt with under Section 9 of the Civil Service Regulation Act, 1956 he would have been entitled to pension rights.

26. The points raised in the grounding affidavit are dealt with in the affidavit of Brian Purcell (30th March, 1992). He says it is inappropriate to invoke Section 9 as the Applicant had not become, by reason of infirmity of mind and body, incapable of discharging the duties of his position. The Applicant did not make this case and in fact sought to be kept on. It was not necessary to have any medical exam carried out by the CMO or other medical person. Referring to the letters with the warnings, he says the Applicant's illnesses were many and varied and of 110 periods of absence less than 20 were in the injury category. Mr. Purcell said the Applicant could not claim he was not aware a serious view was taken in view of the numerous warnings which he did in fact receive.

27. The criterion that was applied was that chronic or persistent absenteeism is an inability to render regular and effective service in cases where it is clear that there is no permanent infirmity of mind or body that could prevent the Applicant from giving such service. Absenteeism in the prison service is a problem. If prison officers are not available for duty because of sick leave they have to be replaced by staff called in on an overtime basis. Absenteeism in the prison service cost £4.271 million in 1991 (£4.233 million in 1990). The Respondents have to have regard to morale and efficiency of the prison service.

28. In a second affidavit dated the 21st September, 1995, Michael Gaughan refers to how the roster system was made up during the period of his service firstly up to 14th February, 1988 then to 28th April, 1989 and then to 16th July, 1991. He exhibits a document to illustrate the precise sequence of rest days and he says if a rest day fell on a public holiday it was rescheduled later that week. Relying on this mapping out of his rest days the Applicant applied it to his sick leave record. He claims his sick leave record is seriously flawed.

29. He says the official sick leave record is not the actual record as prepared by the prison but a transcript from the prison record sheet to a Department record sheet. He mentions four inaccuracies:-

30. In relation to uncertified sick leave he says the officer's name is entered into a green covered book referred to as the Uncertified Leave Book by the Chief Officer who will have the absent officer sign his name and enter a reason for the uncertified sick leave day opposite the entry made by the Chief Officer referred to earlier. This book is later submitted to the Sick Records Office (the Pay Office) and entered on the officer's uncertified sick leave record card. He complains that he has not had an opportunity to examine the Green Book. He calls into question the basis and accuracy of the Respondents' system for recording his absences from duty.

31. In an affidavit sworn 9th January, 1996 in reply to the supplemental affidavit of Michael Gaughan sworn on 27th September, 1995, Mr. Lonergan, the Prison Governor

32. He says careful individual records were kept in relation to the sick records with every officer. They were kept by hand until approximately 1990 when the system was computerised. He does not accept that there was an absence of guidelines as to how to compute an officer's sick leave record. He believes the system works satisfactorily subject perhaps to the occasional clerical error as occurred in the case of Mr. Gaughan.

33. In a further 15 page affidavit, Michael Gaughan analyses the different rosters which existed, the explanations given by Mr. Lonergan in his affidavit and in particular he says that the recording of certified sick leave as including in total the number of rest days in the period of certified sick leave is entirely erroneous and flawed. The practice ought to be that scheduled rest days ought to be excluded from the total period of certified sick leave dates in the relevant period in the Department's records. He also says that he believes that the Government was not aware of the general practice. He disagrees that careful individual records were kept.

34. In an affidavit by John Lohan (who took over the area of work previously dealt with by Brian Purcell) among other things he refers to the fact that there was an error of a clerical nature which ought not to have happened in that the entries for both 8th October and 21st November (1988) were duplicated. But he says there are other mistakes in the Department's record which should have been included and which worked to the Applicant's benefit. For instance, there was no entry in relation to absences on 8th and 9th November, 1987 yet certificates were submitted for those days nor in relation to 16th July, 1990 when he was in fact absent for those days. He again refers to the system of including rest days or weekends if an officer is sick on two days either side of rest days. He says everyone familiar with the workings of the Civil Service should be aware that this is the way sick leave absences operate and are calculated in the public service. He also points out that what was stressed in the Memorandum to Government was not the number of days absence so much as the number of separate periods on which the Applicant was absent on sick leave. It is stated especially in paragraph 9(a) of the Memorandum to Government that frequency of absences rather than the total number of days is the principal characteristic of chronic absenteeism. In his last four years of service the Applicant had 40 separate periods of absence totalling 162 days. He also deals with Mr. Gaughan's complaint of a number of inaccuracies in the department's sick leave record.

35. Mr. Lohan says that a very detailed review and comparison of the medical certificates, the Green Book, all the prison records and the Department records would result at the end of the day in only minor alterations, if any, to the detailed figures which were made known to the Applicant from time to time and which ultimately formed the basis of the Memorandum for Government.

36. Mr. Gaughan then put in another 14 page affidavit dated the 9th October, 1996. He complains about discovery and criticises the record keeping. He again says that rest days should not be included in certified or uncertified sick leave. He refers to the discovery made by Mr. Lonergan.

37. The last affidavit is an affidavit by John Lohan sworn on 25th March, 1997. He points out that the Applicant had been told in the letter of 13th February, 1991 that his record was unacceptable and numbers of absences and days of sick leave were set out, and he was invited to furnish representations or make explanations or representations. In his reply he accepted his sick leave record was unacceptable and he did not indicate that he wished the precise number of sick days or days lost or the precise number of absences to be reviewed or questioned or gone into on a day by day basis. With regard to the calculation of sick leave he refers to paragraph 5, Circular 25/78, and to examples in Appendix B to Circular 7/78. (For example, January 9th to 28th - 20 days). He said that the amount of pay deducted would be the amount of hours which the officer was due to work not the number of days including rest days for the absence. The calculation of pay is different from and separate to the calculation of sick leave in accordance with Circular 25/78.

38. When the Applicant was cross-examined on the 12th January, 1996 he did not accept that a serious view was taken by the prison authorities. His attitude was that as long as he got his increments he was alright. There was only one letter (22nd February 1985) of the letters of complaint exhibited in Brian Purcell's affidavit, that he could not recollect getting. He accepted that he got the letter of 9th August, 1983; that he took the letter of 23rd November, 1983 as seriously as the previous one; that he did not reply to the letter of 12th July, 1985; that he got the letter of 5th August, 1985 and in relation to the letter of 15th December, 1988 he said he could not understand receiving an increment a few months previously and then receiving this (letter). When he came to be examined on 19th January, 1998 he said he did not recollect receiving the letters of 12th July, 1985, 5th August, 1985 or 15th December, 1988. However, despite his deterioration in memory, no case was made that he did not receive the letters/complaints.

39. Mr. Lonergan was also cross-examined. He did not agree that the old manual system of recording sick leave was not capable of coping. He said the old system was very effective. He said sick leave does not involve a disciplinary process. He agreed the principal dispute was whether sick days should include rest days.

40. This judicial review was granted on the grounds that fair procedures were not adopted by the government in coming to their decision and specifically that the Applicant was not given an opportunity of dealing with and making a reply to the reasons for his dismissal or to rebut the factual matter which it was alleged justified his dismissal, that they failed to disclose the factual basis or any proper or adequate reasons for the dismissal and also that in reaching the decision they took into account documents which had not been disclosed to the Applicant. To this was added that he was denied the right to cross examine the persons giving adverse evidence against him. As matters progressed following discovery, the Applicant challenged the accuracy of his sick leave record and challenged the practice of including rest days which occurred during a period covered by medical certificate, as being on sick leave.

41. Basically the issue is whether in the circumstances of this case fair procedures were adopted in coming to the decision to dismiss.

42. The procedure adopted was in the context of a long series of warnings/letters which set out in detail the number of absences and the number of days covering a period of ten years. The accuracy of these was never challenged by the Applicant at any time prior to his dismissal or even in his grounding affidavit. He did not keep copies of these warnings/letters. The case was not made that he did not receive them although his memory deteriorated between his first and second cross examination. The procedure was:-

43. In those circumstance where the Applicant over the years never queried the accuracy of his sick leave record there was, in my opinion, no necessity to have any oral hearing, preliminary or otherwise. The case bears no resemblance to O'Shea -v- Garda Commissioner (1994) 2 I.R. 408. The memorandum to government was a fair summary of the facts. The decision reached by the government was factually sustainable and the criteria applied were reasonable.

44. After discovery the Applicant challenged the accuracy of his sick leave record mainly on the basis there was a practice of including rest days which occurred during a period covered by a medical certificate as being days on sick leave. In my opinion, this is in accordance with the general practice in the Civil Service, within the terms of his employment and the relevant circulars.

45. Under the terms of his employment it was provided, "sick leave may be allowed at full pay up to six months in any period of twelve months and at half pay thereafter subject to an overriding limit of twelve months sick leave in any period of four years or less". This is in contrast with the provisions relating to leave which states "annual leave is eighteen working days per year for the first five years and twenty-one days thereafter". The period of sick leave makes no mention of working days but rather the overall period of sick leave. The circular on which the rule is based clearly shows that rest days (or weekends) can be included in the number of sick days. Circular 25/78 (paragraph 5) states:-

46. So the inclusion of rest days in a period of sick leave is entirely in accordance with normal Civil Service practice. There is nothing basically unfair about it. An individual who was sick on Friday and Monday was also sick on Saturday and Sunday. The calculation of six months sick leave in a twelve month period does not take account of rest days or weekends but rather of the total period or periods of sickness.

47. There were certain minor discrepancies in the record for which an adequate explanation was supplied. After a comprehensive trawl through the records the Applicant discovered there was one example of duplication but this was offset by three days sick leave which was not included in the summary of his record. I accept Mr. Lohan's analysis in his final affidavit that a very detailed review in comparison of the medical certificates, the green book, all the prison records and the Department's records would result at the end of the day in only minor alterations, if any, to the detailed figures which were made known to the Plaintiff from time to time and which ultimately formed the basis of the memorandum for government.

48. To deal specifically with the particulars alleged to constitute unfair procedures:-

49. The application is without merit and is dismissed.