Whether the Department has complied with the requirements of section 10 of the Act in response to the application made by the applicant for a statement of reasons as to why he was reverted to his former grade at the end of his probationary period

12 April 2021

Background

The applicant was assigned to the Department in 2018 at a specified grade following promotion through an inter-departmental competition. His appointment was to an established position in the Civil Service on a probationary contract for a period of one year from the date of appointment. At the end of the probationary period, the Department decided that he was unsuitable to be confirmed in the post, the effect of which was that he would revert to his previous grade from a specified date. It notified the applicant of that decision in a letter dated 20 May 2019. It informed him that he could seek a review of its decision and that any such review would examined by the Civil Service Disciplinary Code Appeals Board (the Board).

The applicant sought a review of the Department-�s decision. Following its review, which included a hearing at which the applicant and the Department both presented their cases, the Board recommended upholding of the Department-�s recommendation to revert the applicant to his former grade.

In November 2019, the applicant submitted an application under section 10 of the FOI Act for a statement of reasons concerning the decision to revert him to his former grade. The Department refused the application on the ground that the applicant did not have a material interest in a matter affected by the act identified and on 23 December 2019, it affirmed that decision following internal review. On 12 November 2020, the applicant sought a review by this Office of that decision. That application was refused as it was outside the six-month time limit prescribed in the Act for making such applications.

Subsequently, on 18 November 2020, the applicant submitted a fresh application to the Department for a statement of reasons as to why he was -�unlawfully-� reverted to his former grade -�without [his] consent and where the matter was decided without the Secretary General of the Department-�.

The Department refused the application on the basis that he had already been provided with adequate reasons during his probationary period for the decision to revert him to his former grade. The applicant sought an internal review of that decision following which, on 18 January 2021, the Department said that it had decided to affirm its original decision. However, it also indicated that he had not established that he had a material interest in a matter affected by the act or to which it relates. On 25 January 2021, the applicant sought a review by this Office of the Department-�s decision.

During the course of the review, the Department confirmed that it wished to rely on the position it adopted in the original decision, namely that the applicant had already been provided with adequate reasons. The Investigator notified the applicant of the Department-�s position and of the relevant documentation that the Department considers to fully explain the probation assessment process as operated across the Civil Service and the consequences for an individual where s/he failed to meet the required performance standard by the end of the probation period. She invited the applicant to make a submission on the matter and he did so.

I have now completed my review in accordance with section 22(2) of the FOI Act.  In carrying out my review, I have had regard to the correspondence between the applicant and the Department and the records referenced by the Department, as described above. I have also had regard to the correspondence between this Office and both the applicant and the Department on the matter. I have decided to conclude this review by way of a formal, binding decision.

Scope of the Review

This review is concerned solely with the question of whether the Department has complied with the provisions of section 10 of the FOI Act in response to the application for a statement of reasons as to why the applicant was reverted to his former grade.

Analysis and Findings

Section 10 of the FOI Act provides that a person who is affected by an act of an FOI body, and has a material interest in a matter affected by the act or to which it relates, is entitled to a statement of the reasons for the act and of any findings on any material issues of fact made for the purposes of the act.

Department-�s Submissions

In its original decision on the application, the Department said that in considering the section 10 application, it reviewed the extensive amount of information and records already provided to the applicant in relation to his probation assessments and the discussions around same and the Board-�s report in relation to his appeal. It said it decided, therefore, to refuse the application as it was satisfied that he had been provided with adequate reasons during his probationary period for the decision to revert him to his former grade.

In its submissions to this Office, the Department repeated its argument that the applicant had been provided with adequate reasons for the decision taken to revert him to his former grade at the end of his probation period and that he was fully aware of all of those reasons, which had been set out clearly in performance management assessments, discussed with and provided to him at all relevant stages.

It argued that the applicant;

a) understood how he would be assessed during that probation period,
b) had been consulted at the end of each assessment period and, more importantly,
c) was fully aware of the material issues of fact under consideration at the end of each assessment period and of the implications for him, and by extension the decision to be made by the Department, in the event of an unfavourable assessment.

The Department said that the applicant was assigned to the Department following his promotion. It said that as is the normal process across the civil service for all staff in the same position, his appointment was subject to a probationary contract for a period of one year. It said he was made aware of the regulations and conditions of service, which apply to all persons in a similar position, in his letter of offer dated 9 July 2018, which he accepted.

The Department explained that in accordance with the applicable Department of Public Expenditure and Reform Guidelines on the management of probation in the Civil Service, which are applied to all persons who are appointed subject to such a probationary contract, three formal review meetings take place during the probationary period between the staff member and his or her line manager and a decision can be made at any one of these meetings as to whether or not the appointee will be retained pursuant to Section 7(b) of the Civil Service Regulation Acts 1956 -� 2005. This decision is based on the appointee-�s performance being assessed against the following criteria:

(i) has performed in a satisfactory manner;
(ii) has been satisfactory in general conduct; and
(iii) is suitable from the point of view of health with particular regard to sick leave.

The Department drew attention to the three completed assessments in respect of the applicant. It said that at both the three and six month intervals, the applicant-�s manager confirmed that his performance was -�unsatisfactory and needs to show improvement-�. It said that each assessment was discussed with the applicant.

The Department said that its HR Unit wrote to the applicant on 20 May 2019, after his final probation assessment. It argued that this letter was clear, intelligible and adequate. It said the letter referred to the legal basis for the probation period, the objective assessment criteria used, and the decision to be made on the findings of those assessments. It said the letter informed the applicant that during the probation period, three formal review meetings took place. It argued that, crucially, the letter described the findings of fact, namely that three formal review meetings took place, and in the report of the final nine-month review, the applicant-�s manager indicated that he was not suitable to be confirmed in the post with particular reference to whether he had performed in a satisfactory manner.

The Department explained that the applicant was afforded an opportunity to seek a review of the decision not to confirm him in the post, which he elected to do. As I have outlined above, following its review, which included a hearing at which the applicant and the Department both presented their cases, the Board recommended upholding of the Department-�s recommendation to revert the applicant to his former grade. The Department said it was satisfied that its assessment of the applicant-�s understanding of the probation process and the decision to be made by an employer at the end of that process was borne out by the findings of the Board.

The Department identified a number of records as having been provided to the applicant during the time he was employed in the Department. The Department considers that the documentation fully explains the probation assessment process as operated across the Civil Service and the consequences for an individual where s/he failed to meet the required performance standard by the end of the probation period. The relevant documentation comprised the following:

1. Letter of Offer to the applicant dated 9 July 2018, which states that the appointment is subject to the regulations and conditions of service issued by the Public Appointments Service (PAS) to candidates for the post.
2. Form of Undertaking, which contains the Principal Conditions of Service
3. Probation History -� as recorded on the eProbation system
4. PMDS Annual Review 2018
5. Letter from HR to the applicant, dated 20th May 2019
6. Probation Guidelines
7. Final Report of the Civil Service Disciplinary Code Appeal Board

Applicant-�s Submissions

In his submissions to this Office the applicant said that section 10 of the Act places an obligation on a public body to furnish a written statement of reasons to a person impacted in a material and personal way by a decision of a public body. He said it is important to emphasise that the decision must be in writing and that an oral statement would not satisfy the requirement of the Act.

The applicant argued that none of the seven records listed above singularly or collectively provide the reasons sought in his request. He said that none of these records are from the Secretary General recording the reasons for his decision and that one of the documents is from a third party and accordingly cannot be the Department providing him with reasons. The applicant added that he does not have access to the ePMDS and eProbation records as he is no longer employed by the Department. He argued that even if he had access to these computer systems, neither would provide a statement of reasons as sought. He added that the records predate the decision for which he is seeking a statement of reasons.

In essence, the applicant argued that the Department has not furnished a statement of reasons as required by section 10. In a subsequent submission, the applicant noted that the FOI Act does not prescribe the exact nature of all details that ought to be in the statement. He contended, however, that it does require that it is provided in writing -�or other form as may be determined-� to a qualifying requester, otherwise an oral statement could be provided. He noted that the provision of a statement of reasons is in addition to the right of access to records. He argued that it is a rule of statutory interpretation that the Oireachtas does nothing in vain and the requirements of section 10 of the Act are separate personal rights and in addition to the general rights of access provided under section 12. 

The applicant further argued that even if the Department's claim that it provided an adequate statement for reverting him to his former grade was upheld, it does not address the statement he sought, namely why the reversion decision was made 'without the decision being made by the Secretary General of the Department'.

My Analysis

It seems to me that a key question arising in this case is whether, for the purposes of compliance with section 10, the Department must provide a statement of reasons for the decision to revert the applicant to his former grade, regardless of whether or not it has already provided those reasons in previous correspondence.

In addressing this question, it seems to me that the purpose of section 10 is worthy of consideration. The right afforded by section 10 is the right of a person (who is affected by an act of an FOI body and has a material interest in a matter affected by the act or to which it relates) to be given a statement of reasons for that act.  It is reasonable to assume, therefore, that a person seeking to exercise that right has not already been given those reasons when making such an application. As such, it seems to me that an FOI body will be in a position to show that it has complied with the requirements of section 10 if it can satisfy this Office that it has provided the statement sought. I do not believe that the Oireachtas could reasonably have intended that FOI bodies should be required to provide reasons for their acts in circumstances where they had already done so in a clear and intelligible manner.

Many public bodies provide reasons for their decisions that affect individuals as a matter of course. For example, if an individual-�s application for a social welfare payment is refused, the decision issued by the Department of Social Protection will generally provide the reasons for the decision to refuse the application. Furthermore, the governing legislation for some bodies requires that reasons be given for their decisions, such as planning decisions. In such cases, provided the decision has the requisite elements such that it meets the requirements of section 10 of the FOI Act, I see no reason why the public body should not be entitled to rely on the decision provided as meeting its obligations under section 10.

It is worth restating that it is not the position of the Department in this case that it is not required to provide a statement of reasons. Rather, its position is that it has already done so, in the specific records it identified and that were previously made available to the applicant. This Office takes the view that a statement of reasons should be intelligible and adequate having regard to the particular circumstances of the case. The statement should be sufficiently clear to enable an applicant to understand without undue difficulty why the FOI body acted as it did. It should identify the criteria relevant to the act and explain how each of the criteria affected the act.

This Office also considers that provided the statement is adequate and clear, there is no requirement that it be in a particular form. While section 10 requires that a statement be -�in writing or such other form as may be determined-�, this does not, in my view, mean that an additional written statement must be provided where the reasons for the act are already contained in written form and details of same have been made known to the applicant.

In the particular circumstances of this case, I am satisfied that the applicant can be in no doubt as to why the decision was taken to revert him to his former grade. The Department-�s letter of 20 May 2019 explained;

• the relevant statutes applicable to the appointment,
• the nature of the probationary appointment and process and the basis on which the appointee-�s performance is assessed, and
• that the applicant-�s manager indicated in the final nine-month probationary review that the applicant was not suitable to be confirmed in the post with particular reference to the assessment criteria that an appointee has performed in a satisfactory manner.

The three probationary assessment reports contained specific details in relation to the assessment of the applicant-�s performance. All three reports highlighted specific areas of performance where the applicant fell short, supported by specific examples. In all three reports his performance is described as unsatisfactory. In the final assessment report, the applicant-�s manager stated that he had not displayed the competencies required to operate effectively at the requisite level and that she could not, therefore, recommend the applicant for appointment at the relevant grade. The report of the Board following the applicant-�s appeal of the decision summarises the various probationary assessments and the reasons why his performance was considered unsatisfactory.

Having considered the contents of the above records, I am satisfied that the applicant has been fully informed of the reasons for the decision to revert him to his former grade, in a clear and unambiguous manner. Indeed, having considered the grounds upon which the applicant appealed the decision, as set out in the Board-�s report, it is clear to me that he was fully cognisant of the reasons for the decision. In fact, it is also clear to me that his appeal was based on, amongst other things, the fact that he disagreed with those reasons.

I have also considered the applicant-�s secondary argument that even if the Department is deemed to have provided an adequate statement for reverting him to his former grade, it does not address the statement he sought, namely why the reversion decision was made 'without the decision being made by the Secretary General of the Department'.

The act at issue in this case was the decision taken by the Department not to confirm the applicant in the post and thus to revert him to his former grade. This Office has no role in examining the appropriateness of that act. As such, the question of whether or not the Secretary General of the Department should have made that decision is not a matter that we can consider. It is sufficient that the applicant understands why the decision was taken.

In any event, the applicant is not, in my view, entitled to a statement of reasons as to why the Secretary General did not make the decision if that is, indeed, the case. To be entitled to a statement of reasons, the applicant must have a material interest in a matter affected by the act or to which it relates. For the purposes of section 10, a person has such a material interest if the consequence or effect of the act may be to confer on, or withhold from, the person a benefit. Taking section 10 as a whole, this Office takes the view that the word "act" in the section must be interpreted as the exercise of (or refusal to exercise) a power or function which may result in the conferring or withholding of a benefit. In addition, the reasons for the act must have a bearing on the outcome of whether a person receives or does not receive a benefit or suffers a loss or a penalty or other disadvantage. In other words, if the same outcome would result regardless of the reasons for the act in question, then section 10 does not apply to that act. In this case, the reasons why the Secretary General did, or did not, make the decision had no bearing on the act of not confirming the applicant in the role.

In conclusion, I find that the Department has provided the applicant with an adequate statement of reasons for the decision to revert him to his former grade and that it is not required to provide a further statement. I find that the Department has complied with the provisions of section 10 of the Act in this case.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Department in this case. I find that the Department has provided the applicant with an adequate statement of reasons.

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other persons affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.

Stephen Rafferty

Senior Investigator