Court of Appeal: Air Corps Sergeant wins appeal against refusal to consider him for promotion

About this case:

• Citation:
  [2023] IECA 88
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Mr Justice John A. Edwards

Delivering judgment in the case, Mr Justice John Edwards held that there were two routes to promotion. These were either completion of the Senior NCO course or that the applicant had been certified by a Corps Director as having achieved a satisfactory standard of training. It was held that the refusal to consider the applicant under the second limb amounted to an inflexible policy by the General Officer Commanding and the unlawful fettering of his discretion.

Background

The applicant was a Sergeant assigned to the Air Corps as a Senior Airborne Radar Operator Instructor. He had 21 years of experience. He applied for a promotion to Flight Sergeant, which was a NCO role with a rank equivalent to Company Sergeant in the Army.

There were several regulations which governed the process for promotions. One of the regulations outlined the qualifications required for promotion, which were either 1) an applicant completing a Senior NCO training course or 2) an applicant being certified by a Corps Director as having achieved a satisfactory standard of training.

The applicant made his application for promotion on the basis that he had obtained the requisite training and experience for the role. However, the Air Corps refused to consider him for the promotion. It was said that the applicant did not meet the eligibility requirements since he had not completed the NCO course.

The General Officer Commanding refused to certify the applicant for the role, stating that it was policy for all service members to complete the NCO course unless the exigencies of the services required otherwise.

The matter was referred to the Ombudsman for the Defence Forces, who emphasised that there were two routes available for promotion. It was said that the applicant should be provided with information as to why he did not meet the required standard of training. However, the complaint was generally dismissed.

Unhappy with the outcome, the applicant issued judicial review proceedings. The High Court rejected the application and the applicant appealed to the Court of Appeal.

The principle argument in the appeal related to the wording of the regulations. It provided for two routes to promotion but the GOC had refused to consider the applicant’s qualifications under the second route. Essentially, it was argued that the GOC had applied a policy that was not contained in the regulations to reach his decision and therefore the decision was unlawful.

Court of Appeal

Mr Justice Edwards began his analysis by stating that, regardless of any policy considerations, the GOC was obliged to interpret and apply the regulations. These documents created clear alternative routes for the satisfaction of the qualification requirements for promotion to the rank of Flight Sergeant, which included assessing whether he had reached a satisfactory standard of training, the court said.

The applicant was correct to say that effect must be given to the words used and that the words were not intended to be superfluous. The court emphasised that the choice between the NCO course or the satisfactory standard of training assessment was an either/or scenario under the regulations.

Accordingly, the GOC misinterpreted his discretion by refusing to consider the applicant under the second limb of the regulations. This was ultra vires his powers. The court noted that the respondent’s legal submissions “failed to engage in any meaningful way with the legal interpretation issue, preferring instead to justify the GOC’s actions on a policy basis”.

The court was also satisfied that, insofar as the GOC was motivated by policy decisions in refusing to consider the applicant for promotion, he applied a “fixed and inflexible policy”. It was clear that the GOC viewed the non-completion of the NCO course as dispositive of the question of eligibility.

As Corps Director, the GOC was in a position to certify the applicant as having reached the requisite standard of training but he failed to do so. The unwillingness to accept that the applicant could have the requisite training without the NCO course was an unlawful fettering of discretion, the court said.

The court was also satisfied that the GOC allowed himself to be influenced by the “exigencies of the service” which amounted to an irrelevant consideration for the promotion competition. The court also held that the relevant regulation documents created a legitimate expectation that fair consideration would be given to whether the applicant qualified for promotion for having reached a satisfactory level of training. The GOC’s refusal to consider his eligibility for promotion on this basis was a breach of that legitimate expectation.

It was held that the trial judge attached too much significance to the fact that the appellant made no representations to the GOC regarding his qualifications. The GOC did not reject the application because he did not receive submissions and there was nothing to suggest that an application for promotion required the applicant to make submissions. Further, it was clear that any submission would not have helped the applicant due to the GOC’s inflexible policy.

Conclusion

The court allowed the appeal and requested short written submissions on the appropriate reliefs to be provided to the applicant in the final order. The court also outlined the provisional view that the applicant was entitled to his costs of the appeal and the High Court proceedings.

Robinson v. The Minister for Defence and Ors. [2023] IECA 88