(1) The applicant was the Station Officer and had a tenancy agreement. Characterisation as Officer was not determinative but would be considered with other matters.
(2) The issue was the applicant’s dismissal on 3 October 2000 for asserted fraudulent pay claims.
(3) There was a public element to the County Council as it was the fire authority and this authority was manifestly public.
(4) The public nature of fire protection function.
(5) The applicant’s seniority and responsibility were relevant, being the most senior person answerable only to the Chief Fire Officer.
(6) The burden was on the County Council to show there was a private law duty being performed. The Court approved the requirement of establishing that the issue was manifestly a private duty derived solely from contract or agreement if the duty of the decision maker would ordinarily come within the public domain. The issue can only be excluded from judicial review if it is shown to arise solely and exclusively from the individual contract and private law.
In Becker v. Board of Management of St. Dominics Secondary School Cabra [2005] IEHC 169 , the Court was satisfied that the consequences of the decision was an important factor to be taken into account and in its judgment distinguished between the wider aspects of education and statutory provisions, with the narrower aspects of the applicant’s contract of employment. The impugned decision was part of the school’s disciplinary procedure.
In Kelly v. Board of Management of St. Joseph's National School [2013] IEHC 392 , O’Malley J. was dealing with the decision to demote a principal of a school on the basis of serious misconduct where, on appeal, in the context of the disciplinary process employed, a recommendation was made which the Board of Management did not accept. Because the issue involved a disciplinary process in respect of principals, and the relevant circular (inviting applications for the role of principal) was issued under s.24(3) of the Education Act 1998, the Court was satisfied that the issue was amenable to judicial review.
In the instant circumstances I am satisfied that:
(1) The decision maker in this matter might be considered to ordinarily come within the public domain and therefore the decision at issue could only be excluded from the remedy of judicial review if it is shown to derive solely and exclusively from an individual contract in private law ( O’Donnell ).
(2) It is the burden of the respondent to establish that the issue derives under a contract of private law ( O’Donnell).
(3) The letter of complaint quotes the applicant’s employment number and refers to the grievance procedures under the hospital’s policy and identifies her issue as a grievance.
(4) The informal nature of the application of 27 July 2020 referencing a span of more than three months is a matter of relevance.
(5) Although reference is made in the opening sentence of the decision of 5 November 2020 to “your appeal”, the final sentence was to the effect that Mr. XXX was not in a position to uphold “your grievance”.
(6) The applicant’s employment status is not statutorily governed but rather was referable to a contract duly executed.
(7) The grievance in respect of sick status classification and personal eligibility for pay while out of work for COVID-19 was removed from and not directly arising under S.I. XXX / XXX , or the public function of the hospital.
(8) The issue did not involve a disciplinary matter.
(9) The loss to the applicant would be considered to be limited in monitory terms, at its height referable to the loss of income she would receive from 14 April 2020 to 19 October 2022 (the extent of the period the applicant indicated she intended to work, although the issue of the applicant’s intention to take early retirement is disputed in the affidavits before this Court. There was no notice to cross examine).
(10) The employment status of the applicant within the hospital was that of Attendant Team Leader.
I am satisfied that the respondent has discharged the burden of proof necessary to demonstrate that the within matter is manifestly private. The issue contained within the statement of grounds is shown to arise solely and exclusively from the individual contract in private law between the applicant and the hospital of 4 September 2006.
Substance of the applicant’s claim
The applicant’s claim is therefore not amenable to judicial review, however, if I am incorrect in that regard:
(a) The applicant has not demonstrated that it was irrational or in breach of fair procedures for Mr. XXX to seek and secure input from Dr. XXX. Clearly there was an in-person meeting between the decision maker, the applicant and the applicant’s SIPTU representative on 8 October 2020 without any involvement of Dr. XXX . It is noted that Mr. XXX also spoke to Ms. XXX in advance of his conclusion vis-à-vis potential other roles which the applicant might fulfil within the hospital and no complaint is raised by the applicant in regard to this interchange.
I am satisfied having regard to the extracts of the decision of 5 November 2020 above, it has not been demonstrated that there was a breach of fair procedure by Mr. XXX in securing the views of Dr. XXX and indeed the views of Ms. XXX as to the availability of alternative employment.
(b) Specific reference was made in the decision to a consideration of the external specialist reports - in this regard the reasons argument of the applicant is based upon the assertion that no reason was given as to why the respondent refused to accept the expert reports. It is clear from the decision that the hospital took the view that the relevant expert reports did not in fact recommend cocooning. Professor XXX , Oncologist, in his letter of 21 May 2020 refers to the applicant being diagnosed with breast cancer in September 2016 and states:
“Given that her chemotherapy was in the last few years it would be prudent if during her working day any possible exposure to Covid-19 could be minimised as she may well have some residual immunosuppression from her chemotherapy and under these circumstances it would be best if everything could be done to avoid possible contact with the virus at work.”
It appears to me that there was nothing irrational or unreasonable about the conclusion that the above letter did not provide a diagnosis of very high risk or that the applicant should cocoon.
In the letter of 7 July 2020 Professor XXX, Endocrinologist states:
“This lady has a diagnosis of diabetes. It is my advice that in the current Covid-19 situation she should continue to self-isolate as much as possible in order to avoid contact as her immune status is compromised by her condition. I support her intentions to work from home.”
The decision maker had an in-person meeting with the applicant and her SIPTU representative on 8 October 2020.
The applicant has not established the burden of proof on her to demonstrate that the letter of Professor XXX of 7 July 2020 was to confirm that the applicant should cocoon or indeed self-isolate (“continue to self-isolate as much as possible”) or that the applicant was at a very high risk (as opposed to a high risk) of COVID-19 and therefore has not established that the expert reports were either not accepted or were ignored.
(c) The Alama toolkit evaluation was introduced as part of the HSE guideline document on 5 January 2021 being post the decision of 5 November 2020. It was not therefore an evaluation identified in Circular 34/2020 and accordingly the complaints made by the applicant in this regard are misconceived.
Conclusion
In the events, I am satisfied that even if I was incorrect in the view that the issues raised herein solely and exclusively derive from an individual contract in private law, I am satisfied that the applicant in the above such circumstances has not discharged the burden of proof to secure an order of certiorari.
The reliefs claimed are therefore refused.