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1. The Applicant, Peter O'Gorman, was at all material times a probationary prison officer having been appointed on the 13th March, 1995. His probation was renewed for a third year. Immediately prior to the termination of that third year the Applicant was dismissed on the 12th March, 1998.

2. By order of the High Court (Mr. Justice McCracken) made the 12th day of July, 1999 the Applicant was granted leave to apply for Judicial Review by way of an order of Certiorari. The said order was granted without prejudice to the Respondent's right to raise the question of delay.

3. The question of delay was raised before this Court by way of preliminary issue.

4. It was submitted on behalf of the Applicant that, notwithstanding the provisions of Order 84, leave was sought and obtained as above 16 months after the decision which it is sought to review.

5. The Applicant says that the reasons for this delay, as set out in his grounding affidavit, was that he himself was unaware of the causes for the events relied upon in dismissing him until he was diagnosed as suffering from post traumatic stress disorder. This arose, he said, following certain occupational incidents. The diagnosis of the disorder was made on the 15th June, 1998 some three months after his dismissal.

6. He says, in paragraph 20 of his affidavit, that in view of his personal circumstances he was unable to prosecute the application from his own resources, had sought and obtained legal advice through the offices of the Prison Officers Association and had to wait a further 6 months before a decision was taken whether or not to provide him with assistance to make this application.

7. Mr. Anthony Collins B.L. on behalf of the Applicant submitted that there was a perfectly legitimate excuse for delay which was justifiable; the delay did not prejudice the Respondents. He relied, among other authorities, on R. -v- Stratford-upon-Avon District Council ex parte Jackson (1985) 1 W.L.R. 1319 where the period of time before a legal aid certificate was issued was ignored by the Court in computing delay.

8. Mr. Patrick Keane S.C. on behalf of the State, opposed the application on the basis of authorities requiring Judicial Review applications to be made promptly and within clearly defined time limits unless there were compelling reasons for the Court to extend such time limits. Mr. Keane referred to O'Donnell -v- Dun Laoghaire Corporation (1991) 2 I.L.R.M. 301 wherein an objective test was held to apply (at 315):

9. In relation to the reasons given for the delay that the Applicant was unable to prosecute the application from his own resources and had to await a decision for assistance to make the application the passage in O'Donnell at page 317 is relevant:

10. While, in this case, the Applicant did not seek redress other than through the Prison Officer's Association, I found that he had a justifiable excuse for delay and, accordingly, granted the Applicant the extension sought.

11. The Applicant was dismissed because he had an unsatisfactory punctuality record. The Applicant's main ground for challenging his dismissal is on the grounds that he was given no opportunity to make his case prior to the decision of the 12th March, 1998 and that such decision was taken without notice to him.

12. Further grounds relating to the failure to afford the Applicant the benefit of the procedures taken in the Prison Disciplinary Code for Officers Rules of 1996 were not relied upon.

13. On behalf of the Applicant it was submitted that in his first year (1995-1996) he was late on 4 occasions and sick for 3 days, one of which was certified.

14. Towards the end of his first year, on the 6th March, 1996 he was involved in an incident where he was bitten by a prisoner and, on the 3rd January, 1997 towards the latter part of that second year he was traumatised in coming to the assistance of an attempted suicide.

15. In the second year he was late on 37 occasions and sick on 7 days, 2 of which were certified. As a result of this he lost the privilege of taking uncertified sick leave. He also received a letter of warning on 10th March, 1997. He had previous warnings on the 4th of October, 1996 and the 4th of February, 1997.

16. As a result his probationary period was extended to a 3rd year up to the 13th of March, 1998. The reason given for this, in a letter dated the 10th March, 1997 from Ms. Brid McGovern, Prison's Personnel, was his poor punctuality record. The letter concluded by stating that his record would be closely monitored in the coming year and that if there was not a complete turn around in his attendance record the Minister would have no option but to terminate his employment.

17. A report on 27th August, 1997 by the Deputy Governor indicated that he continued to perform his duties to the satisfaction of his superiors and that his punctuality record had shown a considerable improvement. At that stage the Deputy Governor recommended that his appointment be confirmed on the basis of his performance and probation.

18. On November, 19th 1997 the Applicant, in the course of searching a cell while on duty, received a number of puncture wounds to his right hand from an uncovered hypodermic needle concealed in a prisoner's clothing. He was referred to a Department Psychologist. A claim was made in respect of this incident on behalf of the Applicant by a different firm of Solicitors than the Applicant's present Solicitor on 21st November, 1997.

19. On November, 28th 1997 the Applicant attended Dr. Fakih complaining of stress and agitation and again attended on two further occasions.

20. There are two short letters from Dr. Fakih dated the 27th March, 1998 and the 15th June, 1998 exhibited in the Applicant's Affidavit.

21. The first refers to the needle stick injury, the attendance on 28th November and the statement, in relation to stress, and states:

22. The second letter of 15th June, 1998 (after the decision to dismiss and immediately prior to the appeal) certifies that the Applicant was suffering from post traumatic stress syndrome since the needle stick injury and referred to the two other incidents.

23. Dr. Fakih stated that the Applicant was then attending a psycho-hypnotherapist and having sessions of intensive therapy which, in his opinion, was mandatory for a satisfactory recovery. Dr. Fakih believed that the Applicant should recover fully in time and that this should not cause any long term effects.

24. The Applicant complains that

25. An appeal was entered against the Minister's decision and written submissions were made by the Applicant. However the Applicant's case is that the defective procedure leading up to the notice of dismissal was not cured by a subsequent procedure particularly where the Respondent is both judge at first instance and on appeal.

26. The decision on appeal notes that the incidents referred to were not previously cited as being contributory factors in the Applicant's poor attendances and punctuality record. The Minister further notes that within two days of the last incident the Applicant's then Solicitor submitted a claim for compensation. The Minister would have expected the Applicant to have made known to the authorities in the claim for compensation that the Applicant was suffering from post traumatic stress disorder. The first indication of this disorder was given by Dr. Fakih's letter of the 27th March, 1998.

27. Following the hearing of the appeal, the Applicant's probationary services were terminated with effect from the 6th July, 1998, the date of the letter communicating the appeal decision.

28. The Applicant referred to the following cases:

29. Mr. Collins B.L. distinguished the case of State (Duffy) from the present case. In that case there was evidence of a chronic and incurable failure to achieve efficiency, where in the present case the Applicant’s condition is curable according to Dr. Fakih’s report of 15th June 1998. Moreover, the Applicant did not learn of the reasons for his discharge until after he was discharged. He was unfairly shut out from any opportunity to meet the case against him.

30. Moreover, the decision in Duffy is extreme and goes against the trend in Ingle -v- O'Brien and McDonagh -v- the Minister for Defence . In Counsel’s submission the position of Gammell -v- Dublin County Council (where procedural defect is cured on appeal) does not apply to the present case where the decision is absolute and made by the same party who conducted the appeal.

31. The claim made in November, 1997 was in respect of an statutory scheme for prison officers administered by an independent tribunal. It was not made by the Applicant's present solicitor. Moreover, a compensation claim solicitor would not necessarily be in a position to deal with complex judicial review applications.

32. Mr. Patrick Keane S.C. on behalf of the State parties commented on credibility with regard to the delay in the judicial review proceedings. A solicitor had been employed by the Applicant in respect of the compensation claim referred to above immediately after that incident. The present proceedings were initiated fourteen months after the decision of March 1998.

33. In relation to the claim being made by the Applicant, Mr. Keane distinguished between the rights of established officers and those of probationers.

34. In his submission ample warning was made before the 12th March, 1998 when the Applicant was dismissed. If there was any defect in the procedure, which was denied, natural justice was afforded to the Applicant on appeal. No issue was taken by the Applicant on the fullness of rights afforded to him on appeal.

35. In relation to prior warnings, particular stress was made by the State on the letter of 10th March, 1997 at the end of the second year of probation which stated:

36. Previously the Applicant’s privilege of uncertified sick leave was withdrawn.

37. The Applicant's conditions of service as a probationer provides as follows:

38. In Mr. Keane's submission there was no requirement to notify, or indeed, to have a hearing with regard to matters which were self evident, in relation to sick leave where certified by or on behalf of the Applicant himself and, indeed, that these matters did not require warnings. Nonetheless warnings were given in writing in clear unambiguous terms.

39. The Applicant had an unacceptable record of being late which increased from 4 in 1995 to 37 in 1996 and were subject of the three warnings referred to above. In his third probation year there were 20 “lates”.

40. The reasons recorded were (a) those given by the Applicant that he had to come from Cavan and (b) those given by the Staff Welfare Officer, on the Applicant's behalf, that he used alcohol as a sedative (acknowledged in paragraph 5 of the Applicant's affidavit) and which accounted, according to the Staff Welfare Officer, for the Applicant oversleeping in the morning.

41. In the Respondent's submission there was no issue of culpability, no other version of what happened which a hearing could have altered. It was a matter of not turning up for work rather than whether he could turn up for work in the future.

42. The State relied on the following cases:

43. Mr. Keane S.C. also referred to the appeal body procedure which points to the original decision not being final. There was no argument by the Applicant as the appeal procedure was not a real one. In any event the date of discharge was the date of the appeal decision and not of the decision of the 12th March, 1998.

44. In reply Mr. Collins objected to the inference that the Applicant's readiness to pursue the compensation claim through his then solicitors could be compared to the present application.

45. With regard to the issue of health in the context of health, conduct and efficiency, the authorities referred to could be distinguished on the basis of independent advice being available to the employer before dismissal took place. There was no independent professional, medical or other advice underlying the decision of the 12th March, 1998 in this case.

46. In essence, a decision was taken by the Minister without reference to all pertinent information. Mr. Collins submitted that the Applicant's claim, if successful, would not mean that he becomes an established officer. Rather his claim is that he be given a second chance.

47. The Applicant, as probationer, is not entitled to second class natural justice. While he is not necessarily requiring a hearing he wishes to have the facility and the opportunity to make representations to the Minister before a decision is taken. He was not afforded that opportunity.

48. This is a case where the Applicant was, at all material times, a probationary officer of the Department of Justice.

49. Though the duties and obligations of the position were not detailed in the submissions before me it is clear that they involve responsible and sometimes very onerous duties to the prison service. The case law relied on by both parties both in respect of Prison Officers and members of the Garda Siochána show a close similarity in the duties and responsibilities of each.

50. Persons appointed on probation to established positions are governed by the Civil Service Regulation Act, 1956 Section 7as amended by Section 3 of the 1958 Act.

51. There is an important distinction between servants of the State and employees in the Private Sector with regard to tenure. It is significant that the employment legislation of the 1970's, in particular the Unfair Dismissal's Act, 1977, does not apply to Public Servants. They already have tenure. Legislation attempted to give private sector employees with 52 or more weeks service a degree of tenure. In the case of the public sector non established officers, that is, those on probation, had no established position to rely on, by definition. The probation period of the Applicant was extended for cause stated for a third year.

52. The provisions relating to probation referred to above require the officer's service to be satisfactory with regard to health, conduct and efficiency generally during the probationary period. If satisfactory then on completion of the probationary period the officer will be finally appointed to an established position. It seems clear to me that the phrase "finally appointed" is significant: unless satisfactory there is no finality in a probationer's appointment.

53. It is significant that Blayney J. in Whelan -v- Minister for Justice held that the authority must have been satisfied during the period of the prosecutor's probation that he failed to fulfil the conditions of service.

54. In this case the Minister took a decision during the period of probation.

55. In taking that decision the Minister is entitled to look back at the Applicant’s record over the probationary period - particularly the extension of the probationary period for the third year - to ascertain whether, having regard to the health, conduct and efficiency of the probationary officer, that he is satisfied with the officer's service. Once in an established position, clearly, termination involves an entirely different procedure.

56. The line of authority relied on by the Applicant refers, in part, to taxi drivers ( Ingle -v- O'Brien and Moran -v- Attorney General . McDonagh -v- the Minister for Defence relates not to dismissal but to the driving permit of those applicants.

57. It seems to me that given the warnings to the Applicant in the present case and the very clear admonition that a turnabout was required in relation to lateness and absences that the Applicant knew of the reason for the termination. Moreover, as a probationer on extended probation he was made aware of the reasons why he was not promoted to an established position and, accordingly, was at risk.

58. The Applicant was given an opportunity to respond. The Applicant had full knowledge of the risk in not being made an established officer and had time and opportunity to comply with the warnings given.

59. While the Court has every sympathy with the difficulties that the Applicant encountered with regard to being bitten, having needle stick injuries and in his exposure to and, indeed, prevention of an attempted suicide it seems to me that the Respondent herein is entitled to look at the record of punctuality as a prerequisite for satisfactory conduct and efficiency. Moreover the Respondent is entitled to look at the Applicant's sick leave and, indeed, to take into account the previous decision to withdraw the privilege of uncertified sick leave from the Applicant. If the Respondent is not satisfied either as to the health, conduct or efficiency of the Applicant during the probationary period the Respondent is, in my opinion, entitled to terminate the appointment.

60. Judicial Review is, of course, not a matter of reviewing the decision but rather of the procedure adopted in making that decision. Given the warnings, the extension of probation and the letter of 10th March 1997, it seems to me that natural justice was afforded to the Applicant in relation to the decision of the 12th March, 1998 terminating his appointment with the Respondent. Moreover, the Applicant was left with room to appeal and, in fact, did appeal. The effective date of his termination was on the determination of that appeal.

61. Finally, though it is not necessary, in view of the above, to make such finding, it would seem to me that the Applicant has not proved any causal link between the three unfortunate incidents which he was obliged to face in his duties as a probationer and the post traumatic stress disorder alluded to by his doctor. The most recent of the incidents, and possibly the most severe, was the subject of compensation which, though no evidence was given as to pleadings or compensation granted, should have been in full and final settlement of all damages arising from such incident.

62. I would refuse the application.