High Court of Ireland Decisions

1. The catalyst to this particular justiciable controversy is a claim for expenses by someone other than the Applicant in the sum of £5.96.

2. The Applicant has been a prison officer for twenty-three and a half years since the 7th July, 1973 employed variously at Mountjoy Prison, Cork Prison, Portlaoise Prison and Shelton Abbey. In May 1985 he was promoted from the rank of prison officer to that of Assistant Chief Officer and was stationed at Shelton Abbey Prison as Assistant Chief Officer since December 1990.

3. On or about the 9th day of June, 1994 prison officer Seamus Roche, submitted to the Applicant a subsistence form for payment of duty expenses in the sum of £5.94 and the Applicant certified the dates and times thereon as being correct. Later that evening Assistant Governor Whelan came to the Applicant with the said form and said that Clerk 1 Breen (hereinafter referred to as C1 Breen) was querying the details set out therein. Assistant Governor Whelan was given a comprehensive explanation of the contents of the form by the Applicant and he concurred in the same and on June 10th, 1994 C1 Breen paid the subsistence amount due to Officer Roche.

4. On the 4th day of July, 1991, C1 Breen wrote to Assistant Governor Whelan and queried the subsistence which was paid to Officer Seamus Roche, the payment of which had already been approved by Assistant Governor Whelan and in fact paid out by C1 Breen. On the 27th day of July, 1994 the Applicant replied to Assistant Governor Whelan's communication in the following terms:-

5. In response the Applicant received an undated letter from Assistant Governor Whelan in the following terms:-

6. The Applicant replied in the following terms:-

7. As an English speaking nation the word 'scab' is part of our vocabulary and I as a member of this nation am entitled to use the word 'scab' where appropriate.

8. Governor I must now refer you to the 'Oxford Advanced Learners Dictionary of Current English' where the meaning of the word 'scab' will more than satisfy your official query.

9. Anthony Sheriff

10. Assistant Chief Officer

11. I divert here for a moment to say that use of the word "scab" has once been considered in Irish case law. In E.I. Co. Limited -v- Kennedy & Ors. , (1968) Irish Reports page 69, Walsh J. said at page 91:-

12. The word was also considered in cases arising from the coal miners strike in the United Kingdom but I do not think those cases should be taken account of in relation to this litigation.

13. On the 1st September, 1994 Assistant Governor Whelan wrote to the Applicant as follows:-

14. The Applicant endorsed on the said letter the following request:-

15. On the 9th November, 1994 Assistant Governor Whelan wrote to the Applicant in the following terms:-

16. The Applicant replied:-

17. The Applicant was then written to by letter dated the 20th February, 1995 which he received on the 15th March, 1995 in the following terms:-

18. The Applicant responded:-

19. Assistant Governor Houlihan replied as follows:-

20. By letter dated the 7th April, 1995 the Applicant wrote to the Governor of Shelton Abbey requesting clarification of various matters. In reply he was told by Assistant Governor Houlihan:-

21. The Applicant by letter dated the 20th April, 1995 to the Governor indicated that he was unable to reply to the original minute issued to him pending the clarifications of matters which he had previously requested on the 7th April, 1995. He then received the clarifications sought on the 27th June, 1996 from A. Gardner of the Prisons Section and he was told he was being given a final opportunity to say on his behalf what could be taken account of by the Minister in arriving at a decision on the charge. He was given fourteen days within which to reply.

22. Solicitors then wrote to the Minister on his behalf and asked for an extension of time which they were given. They were given further clarifications and an extension of time by letter dated the 21st August, 1996 from John Lohan of Prisons Personnel. By letter dated 29th August, 1996, two years into the enquiry, the Applicant's Solicitors wrote a letter of apology. Had this action been taken two years earlier, I have no doubt this long saga would have been avoided.

23. By letter dated the 15th October, 1996 the Applicant was informed that the Minister had decided to transfer him from Shelton Abbey to Wheatfield Place of Detention with effect from Saturday, 25th October, 1996. This decision was very shortly resiled from on foot of representations by the Applicant with regard to the effect it would have on his family circumstances. It is complained in these proceedings that the Applicant's appeal was from the Minister to the Minister. It is to be noted that in this regard the Applicant's appeal was successful in part. I would accept that the reality of the situation was that the Minister made a preliminary determination which was later confirmed in part and resiled from in part by reason of compassionate considerations.

24. By letter of the same date, 15th October, 1996, the Applicant was notified that the Minister had decided to down-grade him to the rank of prison officer as a disciplinary penalty. He was given a period of fourteen days to make representations against that decision.

25. By letter dated the 18th December, 1996 the Applicant's Solicitors were written to by T. Maguire of Prisons Personnel in the following terms:-

26. The Applicant says that the procedures adopted in regard to the investigation of the allegations and the conduct and manner in which the recommendations and decisions were arrived at were inadequate and unfair in that:-

27. My own view is that the Minister could not possibly maintain in a position of rank a person who had a propensity in official correspondence to describe a colleague member of rank as a scab. As an apology took two years to generate itself, the incident could not be described as a temporary loss of control due to an off-day or some such other reason. It is however well-settled law that my opinion is irrelevant. I am not concerned with the decision but the decision-making process. What is required in relation to the decision making process was set out by Henchy J. in The State (Gleeson) -v- Minister for Defence, 1976 I.R. page 280 which concerned the dismissal of a soldier. In that particular case on its facts it was held that the discharge of the solider was invalid because it had been made in breach of the principles of natural justice. At page 296 Henchy J. said:-

28. In my opinion the extensive recital of the correspondence in this case indicates that those requirements have all been complied with.

29. Insofar as the claim for an oral hearing is concerned, it is clear from Galvin -v- The Chief Appeals Officer , unreported decision of 27th June, 1997 by Costello P. that there are no hard and fast rules as to when dictates of fairness require the holding of an oral hearing. In the present case the essential facts were clear from the beginning and were not in dispute. There was no matter of contested fact between the parties which required the holding of an oral hearing and the Applicant did not request the same. Neither did the Applicant seek to involve his trade union in the matter and accordingly there was no any refusal to treat with the Applicant's trade union. Nor was he denied access to legal advice or representation.

30. The Application is dismissed.