The High Court has rejected a soldier’s judicial review challenge to a Rights Commissioner’s decision that she had no jurisdiction to hear his complaint about an army absence record. The court concluded that no dispute existed when he made the complaint and that he therefore lacked standing to bring the proceedings.
The applicant, a member of the Permanent Defence Forces stationed in Letterkenny, was marked absent from duty on 5 October 2007. He later applied for one day of force majeure leave, which his employer, the Minister for Defence, approved. The court said the absence entry on an internal Army Form AF120 was subsequently removed from his record. The Department of Defence said the form had been destroyed, although the evidence did not establish when.
The soldier complained to a Rights Commissioner in February 2008, arguing that recording him absent without leave breached the Parental Leave Act 1998 because he had been on force majeure leave. The Rights Commissioner decided in January 2009 that section 18(1) of the Act prevented her from investigating the complaint because he was a member of the Defence Forces. He appealed to the Employment Appeals Tribunal and then sought judicial review.
His requested remedies included orders requiring the Rights Commissioner to investigate the complaint and declarations concerning the Act, European Union law and constitutional rights. His counsel argued that excluding Defence Forces members from the Act’s dispute procedures denied them an effective remedy. The respondents and the Minister for Defence argued, among other points, that no dispute existed because the leave had been approved before the complaint was filed.
Mr Justice Hedigan found the proceedings misconceived. He held that force majeure leave, given its urgent nature, must be applied for retrospectively. Since the leave had been approved, there was no dispute under the Act when the soldier filed his notice with the Rights Commissioner. The court also noted that he did not know whether the AF120 had been destroyed, and said the evidence did not establish a dispute about the form’s existence.
The court allowed the respondents and the notice party to amend their statement of opposition to raise standing. It then concluded that the applicant lacked the necessary standing because there was no legal or factual dispute with his employer when he applied to the Rights Commissioner. The case failed on that basis. The judgment did not determine the broader challenges to section 18 or grant the requested orders.