The High Court has quashed the Department of Agriculture, Food and the Marine’s decision to remove veterinary surgeon Declan Gill from all Temporary Veterinary Inspector panels, finding that he was not given adequate notice of the allegations ultimately used against him.
Ms Justice Tara Burns ruled on 28 September 2018 that the Department’s Decision Group had found Mr Gill planned to cause disruption and raised health and safety and food hygiene concerns without giving him a proper opportunity to respond to those specific allegations. The court held that the failure to provide adequate notice was fatal to the removal decision.
The case arose from an incident at Rosderra Irish Meats on 9 November 2016. Mr Gill, who had worked as a temporary veterinary inspector at the plant since 2002, wore a Donald Trump mask and made a fist pump gesture while approaching the personnel manager. The manager complained that Mr Gill had threatened him with a closed fist and said “You’re dead”. Mr Gill denied making a threat or saying those words. He said he wore the mask as a joke and that the gesture was celebratory.
The Department’s Decision Group decided to remove Mr Gill from its panel after reviewing the CCTV images and his written submission. It said the mask and gesture were inappropriate, and raised concerns about disruption, health and safety and food hygiene. The group expressly said it had not considered whether a verbal threat was made.
Justice Burns found that Mr Gill’s written representations had addressed the original threat allegation, rather than the different concerns on which the Decision Group ultimately relied. Although he should have understood that the Department was considering his conduct in the wider context of his professional duties, the court said he had not been told that the specific findings of planned disruption and health and safety and food hygiene concerns were under consideration. The group could have adjourned to give notice of those matters but did not do so.
The judge also said the decision to remove Mr Gill from the panel for the conduct described appeared disproportionate and unreasonable. She stressed that judicial review was not an appeal on the merits and that the court could not substitute its own decision for the Department’s. She nevertheless concluded that the removal decision was irrational as well as procedurally unfair.
The court held that the Department was not required to use clause 1.6 of the inspectors’ engagement terms. That clause concerned performance of veterinary duties and persistent lateness, while the conduct at issue was personal behaviour. Justice Burns also rejected the Department’s argument that judicial review was unavailable because the matter was private law, given the public statutory meat-inspection function involved.
The court made an order of certiorari quashing the decision to remove Mr Gill from all of the Department’s Temporary Veterinary Inspector panels. It did not determine the remaining grounds of challenge after finding inadequate notice, though it set out its views on them.