High Court: Civil servant appointment took effect without positive decision

About this case:

• Citation:
  [2023] IEHC 586
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Garrett Simons

Delivering judgment for the High Court, Mr Justice Garrett Simons found that any “interpretation of Section 7 of the Civil Service Regulation Act 1956 which allowed an appropriate authority to lawfully terminate an appointment after the expiration of the probationary period would leave the civil servant in limbo. This would give rise to precisely the type of “prolonged security” which the Working Conditions Directive is intended to prevent. It would render nugatory the introduction of a maximum probationary period.”

Background

The applicant was promoted to the position of principal officer within the Department of Transport, subject to a probationary period of 12 months, to expire on 13 December 2022. In October 2022, and following a negative review with his line manager, the applicant requested that the period be extended so that he could prove his competence.

An official within the Department extended the duration of the probationary period by 4 weeks to 9 January 2023. By letter dated 10 January 2023, the applicant was notified of the intention to recommend to the Minister that his position should be reverted to assistant principal officer.

Following the completion of a non-statutory review with the Civil Service Appeals Board, the Board recommended that the applicant’s probation be extended for a further 6 months, erroneously concluding that this course of action was permissible. 

The Minister ultimately decided that no extension could be granted as the probationary period could not extend beyond 12 months, and so the applicant was notified by letter dated 13 July 2023 that he would be reverted to his previous position.

The applicant sought to judicially review that decision. 

The High Court

Mr Justice Simons considered the Civil Service Regulation Act 1956, observing that the requirement for the Minister as the appropriate authority to make employment decisions in respect of senior civil servants is an exception to the Carltona principle, which suggests that certain decisions may be made by an official acting as the alter ego of the Minister.

Considering that there was a dispute as to whether the probationary period could be extended beyond the 12 months prescribed under s.6D of the Terms of Employment (Information) Act 1994, implementing Directive (EU) 2019/1152 on transparent and predictable working conditions, the Court noted that the respondent was correct in its interpretation that it had no power to extend the period beyond 12 months.

Finding that the respondent could terminate an appointment during the probationary period, the Court stated that on a literal and purposive interpretation of s.7 of the 1956 Act, the respondent could not terminate the appointment after the expiration of the probationary period, as the decision must have been reached “during” the probationary period.

The Court continued that the Directive’s language makes it clear that the probationary period ensures that a civil servant is not subject to prolonged insecurity, and that an appointment takes where the probationary period expires without a decision confirming same, unless the appointment has already been terminated. 

Mr Justice Simons referred to Whelan v Minister for Justice [1991] 2 IR 241, highlighting the High Court’s finding that a probationer civil servant who completed his probationary period without being found as unsatisfactory is entitled to continue his appointment at the expiry of the probationary period.  

Recognising that the obiter part of the judgment suggested that the termination need not occur prior to the expiration of the probationary period, Mr Justice Simons found that this obiter comment did not represent a correct statement of law.

Finding that the respondent’s reliance on s.5A of the 1956 Act as stating that an appointment cannot become permanent by default was “misplaced”, the Court noted that s.5A is concerned only with the “specific contingency of the initial appointment of a person to be an established civil servant, i.e. it is concerned with a new entrant.” 

Turning then to Article 8(3) of the Directive, Mr Justice Simons observed that the obligation that Member States to ensure that a probationary period shall not exceed six months, is subject to an exception where a longer probationary period is justified by the nature of the employment or in the interest of the worker.

Noting that the Irish State transposed the Directive in a manner that distinguishes between general employees and public servants, the Court highlighted s.6D(2) of the 1994 Act provides that the probationary period of a public servant shall not exceed 12 months, without any provision allowing for the extension of that period.

The Court opined that on the basis that public servants are expressly excluded from the transitional provisions of the 1994 Act, the 12-month maximum duration had immediate effect on 16 December 2022, causing any probationary period with 12 months or more having been completed to expire on that date.

The Court found that the extension of the probationary period was invalid as it could only be extended by the appropriate authority, that s.6D of the 1994 Act prohibited an extension beyond 12 months, even by the Minister, and that the question of whether any extension granted prior to 16 December 2022 would have been effective until that date was moot, as Member States were obliged to take the necessary measures to comply with the Directive by 1 August 2022, arguably binding the respondent from that date.

Opining that as the applicant’s probationary period came to an end on 16 December 2022, his appointment took effect on 16 December at latest, and that the Minister’s decision to revoke the appointment subsequently was ultra vires and unlawful, breaching s.7 of the 1956 Act and s.6D of the 1994 Act.

Waiver, estoppel and delay

Contrary to the assertions of the respondent, the Court that there was no proper basis for waiver or estoppel due to the unequivocal wording of s.6D, and as waiver in this context could not occur without informed consent following actual notice due to the intent of the legislation. 

The Court also remarked that “the Minister cannot approbate and reprobate” – having refused to accept the Board’s recommendation as the probationary period could not be extended, the respondent could not now say that the “ad hoc prolongation” was valid. Finally, the Court considered that the extension agreed to at first instance was ultra vires, a decision which could not be ratified by any waiver on part of the applicant. 

Mr Justice Simons concluded that the respondent’s assertions of delay on part of the applicant were not well-founded in circumstances where it was reasonable for the applicant to exhaust the internal dispute resolution mechanism.

Conclusion

The Court concluded that the applicant’s appointment as principal officer took effect from 16 December 2022 at latest, and that the subsequent decision to terminate this appointment was unlawful. Accordingly, the Court made an order of certiorari quashing the Minister’s decision of 13 July 2023. As the proceedings were heard by way of telescoped hearing, the Court also made an order formally granting leave to apply for judicial review. 

Whelan v Minister for Transport [2023] IEHC 586