Somers v Minister for Defence [2012] IEHC 447 (High Court, Herbert J, 30 October 2012)
High Court quashes dismissal of applicant from Defence Forces for drug use, on the grounds that the respondent employer’s failure to disclose to the applicant the technical advice that it had sought and received in respect of drug testing was a breach of fair procedures.
This case arose as a result of an application for Judicial review as a result of the dismissal of the Applicant from Defence Forces on suspicion of having used a controlled drug, namely cocaine. The issue for the Court was whether fair procedures had been followed by the Appeals Officer and more particularly whether the Appeals Officer was obliged to disclose to applicant that he had obtained specialist advice without informing applicant and whether the technical advice requested by Appeals Officer from a drug testing team should have been disclosed to applicant. The Court confirmed that there was a breach of fair procedures and that technical advice sought by Appeals Officer from drug testing team should have been disclosed to applicant. An order of certiorari was granted quashing the Dismissal.
Mr Justice Herbert stated : “It is not necessary for me to decide and, I do not decide, whether it is a breach of fair procedures for a decision-maker to seek “technical advice”, as distinct from legal advice in relation to the conduct of the inquiry. I am satisfied and I find that the advice sought and obtained by the Appeals Officer in the present case from the Officer in Command Defence Forces Drugs Testing Team and, upon which he acted was advice relating to facts relevant to the matters at issue before him and in respect of which he was obliged to make a decision. As the Appeals Officer did not inform the applicant that he intended to seek such advice from the Officer in Command Defence Forces Drugs Testing Team and did not furnish the applicant with a copy of each of his letters seeking that advice and did not furnish the applicant with a copy of each of the letters received by him from the Officer in Command Defence Forces Drugs Testing Team in reply, there was a clear breach of fair procedures. The court will therefore grant an order of certiorari quashing the order made by the General Officer Commanding 4th Western Brigade on the 25th September, 2009, discharging the applicant from the Public Defence Forces.”
It is important to bear in mind that during the course of this investigation and Appeal the Applicant had been represented by a firm of solicitors but Mr Justice Herbert stated that the solicitors ” were not obliged to surmise that the Appeals Officer might possibly have sought legal or technical advice from some third party and seek discovery or disclosure of whatever documents or records may have been generated in seeking such advice. The onus was at all times on the Appeals Officer to ensure that the applicant was afforded fair procedures and he was therefore obligated to make full disclosure of all such documents to the applicant whether they were sought or not”.
This case confirms once again the obligation that is imposed on the employer to ensure that the employee is fully advised of the rational used by the employer in coming to a decision on whether to discipline or dismiss an employee.