The High Court has refused a civil servant’s application to challenge a Fórsa disciplinary decision, ruling that the dispute arose from his membership of the union and was not amenable to judicial review.
In a judgment delivered on 18 December 2020, Mr Justice Meenan said the applicant had not established the public law connection required for the court to review the union’s decision. The court therefore refused the reliefs sought. It allowed the parties until 15 January 2021 to make written submissions on consequential orders.
The proceedings followed a complaint made by notice party Yvette Kelly to Fórsa in December 2018. The judgment records that the complaint concerned correspondence from the applicant, Osal Stephen Kelly, about the union’s youth organisation. Kelly described passages in that correspondence as injurious to her character and intimidating or threatening. Those were her allegations; the High Court’s decision concerned whether the resulting disciplinary dispute could be brought by judicial review.
Fórsa’s disciplinary process found a prima facie case, appointed an investigator and referred the matter to a deliberative committee. In September 2019, that committee upheld the complaint and imposed a two-year bar on the applicant participating in any branch of union administration. An appeal heard by Kevin Duffy BL was unsuccessful. The appeal decision said the disciplinary findings disclosed no error and the sanction was warranted on the facts established or admitted.
The applicant then sought judicial review, including an order quashing the adverse ruling and damages for reputational damage, breach of contract and stress. He argued, among other things, that the complaint did not qualify as a complaint under the union rules and that the union’s procedures had public law features. Fórsa objected that the dispute was private, arising from the applicant’s relationship with the union.
Justice Meenan considered authorities on when decisions by non-state bodies may be reviewed by the courts. He rejected the applicant’s comparison between the public role of some union members working in the Courts Service and chartered accountants appointed by courts as receivers, liquidators or examiners. He also found no evidence that the applicant’s union membership gave him statutory protection or public rights relevant to this dispute.
The judge noted that trade unions are regulated by statute, but concluded that this regulation did not extend to the applicant’s membership rights in a way that made the disciplinary rules public law rules. He concluded that the case concerned private law rights and was not justiciable by judicial review. The judgment did not determine the merits of the underlying complaint beyond the disciplinary process described.