The High Court has quashed a decision by the Minister for Transport to end a civil servant’s appointment as a principal officer and revert him to assistant principal officer, finding that the decision came after his probationary period had expired.
Mr Justice Garrett Simons ruled that the probation period ended by 16 December 2022 at the latest. The Minister’s decision of 13 July 2023 was therefore outside the statutory power to terminate the appointment, the judge said.
The applicant, Jason Whelan, was promoted to principal officer in the Department of Transport from 13 December 2021, subject to a 12-month probationary period. After a line manager recommended at a nine-month review that he had not met the principal officer standard, Whelan asked in October 2022 for more time to demonstrate his competence. A Department official purported to extend the period until 9 January 2023.
The judge held that only the Minister, as the statutory “appropriate authority”, could extend the probationary period. No such ministerial decision had been made, so the official’s purported extension was invalid. The court also found that the Terms of Employment (Information) Act 1994, as amended from 16 December 2022, capped public servants’ probation at 12 months and did not allow a further discretionary extension in this case.
Whelan later sought a review through the non-statutory Civil Service Appeals Board process. The Board recommended in May 2023 that his probation be extended by six months. The Department rejected that recommendation, saying the law did not permit probation beyond 12 months, and the Minister decided that Whelan should be reverted to his former grade. The judge said the review process could make only a non-binding recommendation and could not alter the statutory requirements.
The court held that once the probation period expired without the Minister terminating the appointment, the appointment took effect; no separate positive confirmation was needed. It rejected the Minister’s arguments that Whelan was barred by waiver, estoppel, delay or pleading limits. The judge said Whelan had reasonably pursued the review process he had been invited to use and brought proceedings the week after the adverse decision.
The court granted leave to seek judicial review following the telescoped hearing and made an order of certiorari quashing the 13 July decision. The judge’s view was that Whelan should recover his legal costs, but that remained provisional: the Minister had 14 days to file submissions seeking a different order, with Whelan then having 14 days to reply. The case was to return on 18 December 2023 if needed.