A High Court has allowed Kevin Donoher, a member of the Permanent Defence Forces Naval Service, to dispute his dismissal for apparently not satisfying health standards. Mr. Donoher presented an independently acquired medical evaluation that determined he had no significant health issues.
The court’s presiding judge, Mr Justice Garrett Simons, stated that the Defence Forces seemed to have overlooked a caution within their own guidelines to adhere to just processes when they decided to terminate Mr. Donoher’s Naval Service.
Following a medical board verdict on 11th September 2023, it was decided that Mr Donoher would be dismissed on the grounds of what was deemed a “Grade 3” basis, defining him as being below the medical prerequisite for service. The judge noted that the medical board’s decision didn’t mention that a “Grade 3” is categorized as personnel who possess moderate impairments or conditions that warrant supervisory treatment more often than every six months.
This classification, Mr. Donoher stated, was suggested due to anxieties about his liver condition, specifically a diagnosis of “fatty liver”. He was duly informed in October 2023 about the proposed decision to dismiss him, with an option to register an appeal.
His appeal, submitted in response, reaffirmed the original decision in April. He was then informed that he would be let go on Tuesday, 9th July. Meanwhile, he acquired a report from his own hepatologist which stated he didn’t have significant health issues.
The report endorsed his health status as “Grade 1” on the Defence Force’s scale, according to the judge. His solicitor sent this report to higher military authorities several months post-appeal.
Mr. Donoher’s solicitor corresponded with the Department of Defence about the lack of clarity on whether the Deputy Chief of Staff had reviewed the hepatologist’s report. Subsequent communication led to legal action.
In conclusion, Mr Justice Simons emphasised that from available documents, it wasn’t clear whether Defence Force’s pre-dismissal procedures were adhered to.
He expressed it was unclear as to how much importance was assigned to the consultant hepatologist’s report. One surprise, he noted, was if the report had not been reviewed due to late submission, why Mr Donoher was not immediately informed about its rejection. According to the judge, the application to request a judicial review met the basic required standards. It was also unusual, he noted, that much of the dialogue regarding Mr Donoher’s procedural rights was verbally communicated rather than recorded in writing. He hypothesised that this procedural hurdle might originate from the old-fashioned idea of a member being “showed off” to their superior, with only a partial record of the conversation being written down afterwards. He suggested it would be more beneficial if members received a written record elucidating their procedural rights in clear, comprehensible language. He put a hold on the discharge for 21 days, during which the defendants, the Defence Minister and the State, may propose alterations or overturn the hold. The case is scheduled for discussion next week.