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Ombudsman for the Defence ForcesAnnual Report 2015

Annual Report 2015

Ombudsman for the Defence Forces

Customer CharterThe Ombudsman for the Defence Forces was established by law to provide a statutorily independentappeals process whereby members of the Defence Forces who have processed a complaint throughthe Redress of Wrongs system, but remain dissatisfied with the outcome, may refer their grievance tothe Ombudsman for review.

The Ombudsman for the Defence Forces also accepts complaints made directly by former membersof the Defence Forces, subject to certain conditions.

Pursuant to sections 4 and 6 of the Ombudsman (Defence Forces) Act 2004 the Ombudsman may,with certain exceptions, investigate an action taken by a member of the Defence Forces or a civilservant of the Department of Defence, which

(a) has or may have adversely affected a complainant, where (b) the action was or may have been –

(i) taken without proper authority,(ii) taken on irrelevant grounds,(iii) the result of negligence or carelessness,(iv) based on erroneous or incomplete information,(v) improperly discriminatory,(vi) unreasonable, notwithstanding consideration of the context of the military

environment,(vii) based on undesirable administrative practice, or(viii) otherwise contrary to fair or sound administration,

(c) the action was not an order issued in the course of a military operation, and(d) in the case of a serving member of the Defence Forces, the matter is not likely to be resolved

and a period of 28 days has expired since the complaint was made under section 114 of theAct of 1954.

The Ombudsman for the Defence Forces strives to provide a fair, user-friendly and accessible meansof adjudicating cases.

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I hereby submit the 2015 Annual Report of the Ombudsman for the DefenceForces pursuant to Section 7 of the Ombudsman (Defence Forces) Act, 2004.This is the 10th Annual Report submitted in relation to the work of theOmbudsman for the Defence Forces since it was established on the 1 December,2005.

_____________________________ Patrick Anthony McCourtOmbudsman for the Defence Forces

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The Ombudsman for the Defence Forces wishes to thank the Defence Forces Press Office for the useof the photographs contained in this Annual Report.

https://www.flickr.com/photos/dfmagazine

Table of Contents

1. Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

2. Highlights of 2015 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

3. Analysis of Complaints & Appeals - 2015 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

4. Case Summaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

5. Corporate Affairs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

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In this historic commemorative year of 2016, I ampleased to present the 10th Annual Report of theOmbudsman for the Defence Forces (ODF) for

the year 2015. This Annual Report reflects the workof this Office for the tenth year of its existence sinceit was established on the 1 Dec 2005. This is the 4thAnnual Report issued by me since my appointmentas Ombudsman for the Defence Forces on the 7thNovember 2012. It covers my third full year in therole of Ombudsman for the Defence Forces (ODF).My initial term of appointment was for three yearsand I was re-appointed by the President for a secondterm of two years from the 7th Nov 2015.

Reassured by my experience to date, I intend tocontinue my policy of the electronic publication ofthe Annual Reports of this Office. In that context, Irecord my sincere thanks and appreciation to theChief of Staff of the Defence Forces who has kindlyagreed to make my Annual Reports available to allmembers of the Defence Forces through the DefenceForces Intra-Net. I am very grateful for his assistancein this regard. Electronic copies will also be madeavailable to various interest groups and individualsby the ODF. My Annual Reports are also publishedon the ODF web-site. A small print run will beundertaken as may be necessary for record purposes.These arrangements will, I believe, ensure economicefficiencies and easier level of access to the Report.

Following a High Court legal challenge to myappointment, initiated in November 2012, thevalidity of my appointment to the Office ofOmbudsman for the Defence Forces was upheld byMr Justice Hedigan in his decision of the 21November 2013. That decision was appealed to theSupreme Court in Dec 2013. The appeal to theSupreme Court was subsequently transferred to thejurisdiction of the Court of Appeal upon itsestablishment. To the end of 2015, the appeal had yetto be listed before the Court. From an operational

perspective, the fact that the appeal had not beenprogressed by the end of 2015 was unsatisfactory. Ihope that the matter will be finalised without furtherdelay.

I wish to record and acknowledge my sincere thanksand appreciation to Lt. Gen. Conor O’Boyle, whoretired as Chief of Staff of the Defence Forces inSeptember 2015, for his continued commitment tomaintaining effective channels of communicationsbetween our respective Offices and our staffs with aview to expediting the resolution of complaintsreferred to my Office. I wish him well in hisretirement. I also take this opportunity tocongratulate Vice Admiral Mark Mellett DSM on hisappointment as Chief of Staff in Sep 2015 and towish him every success in that onerous Office. Igreatly appreciated that he found time in his busyschedule to meet with me shortly after hisappointment as Chief of Staff and agreed to continuethe very good relationship between our respectiveOffices, with a focus on the early resolution ofcomplaints whenever possible. This commitment hasbeen fully honoured during 2015. I am very pleasedwith the ongoing level of communication andcooperation between my Office and the variousMilitary Authorities with whom my Office needs tobe in contact with.

The statistics included in this 10th Annual Reportprovide an overview of the ODF activity during2015. During 2015 my office received from theDefence Forces some 108 Notifications ofComplaints in respect of Redress of Wrongsapplications, pursuant to section 114 of the DefenceAct 1954, initiated by serving members of theDefence Forces. In addition my office received 3direct referrals of complaints during 2015. The totalnumber of complaints notified to my Office for 2015was, therefore, 111. This was a marginal year onyear reduction of 1 on the 112 notifications received

Introduction: 1

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during 2014. However, the 111 notifications ofcomplaints received in 2015, when compared with112 for 2014, 124 for 2013, 127 for 2012, 78 for2011 and 62 for 2010, clearly indicates that whilethe number of such complaints peaked in 2012 andreduced gradually thereafter, they continued at alevel significantly above that for 2010 and 2011. Ofthe 108 notifications received from the DefenceForces during 2015 some 29 (27%) were resolved orwithdrawn during the course of the year.

The number of cases on hands, at various stages ofconsideration, increased from 100 on the 1 Jan 2015to 115 on the 31 Dec 2015. A total of 17 cases werebrought to a final determination during the year.During 2015 an additional 32 new cases werereferred to the ODF. Accordingly, some 132 caseswere under review by the ODF during 2015. Thiswas a 15% increase on the 115 cases under review in2014 and a more significant 32% increase on the100 cases under review in 2013. During 2015, some17 cases were finalised by the issue of 16 FinalReports and 1 case was withdrawn. In addition 9Preliminary Reports were issued. This resulted in 115cases remaining under review on the 31 Dec 2015.Consideration and analysis of a selection ofcomplaints related to various aspects of the 2012NCO Promotion Competition reached the stagewhere a small number of such complaints werebrought to Preliminary View Report (PVR) stage.The unacceptably high backlog of cases on hand isprimarily due to the large number of such cases.

Having regard to the continuation in 2015, of thehigh level of notifications of complaints receivedsince 2012 relative to 2010 and 2011, withoutadditional resources, it was expected that theongoing number of cases under review would remainat or exceed the levels applicable in 2012. As Irecorded in my report for 2012, it continued toappear to me in 2015 that the downward trend in

the number of complaints referred to the ODF, asreflected in the 2011 Annual Report of mypredecessor, was unlikely, at least in the short tomedium term, to be sustained. Furthermore, asflagged in my 2012 report, the administration ofrevised promotion procedures for both Officers andNCOs and the further re-organisation of the DefenceForces have contributed significantly to the referralof complaints to this Office. I have had regard to theinsignificant variation in the number of notificationsof complaints received by my Office during 2015relative to 2014. There is no indication that thecurrent level of complaints is likely to decline.

The ODF remit is to provide an independent,impartial and accessible mechanism for reviewingcomplaints and overseeing administrative processesand practices in the Irish Defence Forces. Theinteraction of the Office of the ODF with theDefence Forces together with the responses of theMilitary and Departmental Authorities to casereports issued in recent years, as well as initiativestaken by those Authorities themselves, have togethercontributed to a general improvement in thestandards of administration within the DefenceForces. The ODF plays a continuing key role inensuring that complaints are dealt with in a mannerwhich, while having due regard at all times tooperational requirements, respects the nature of theIrish Defence Forces as well as the rights of serving

“There is no indication that the current level of complaints is likely to decline.

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and former members. I acknowledge and commendall Authorities for their positive responses toinquiries and reports issued by the ODF.

I believe that the influence of the independentcivilian office of the ODF, since it was established inDec 2005, in the resolution of complaints within theDefence Forces, has been positive. However, inlooking to the future, consideration must be given tothe past. In that regard, I acknowledge the positiveengagement and leadership shown by the Ministerfor Defence, his Departmental officials and hispredecessors, during the period of this report. I alsoacknowledge the support and cooperation of theformer and current Chiefs of Staff, Lt Gen ConorO’Boyle, and Vice Admiral Mark Mellett, DSM, aswell as that of their Senior Staff Officers, members ofthe Irish Defence Forces and their RepresentativeAssociations. I have noted a particular willingness onthe part of the Military Authorities to engage withmy Office with a focus on bringing complaints to asatisfactory and acceptable resolution, having regardto observations and recommendations of my Office.There is general acceptance of the desirability ofresolving complaints at the earliest possibleopportunity. For this, I commend both the Militaryand Departmental Authorities. In this context, andhaving regard to my own previous recommendations,those of my predecessor and of the IMG report, Ihave engaged with the Military and DepartmentalAuthorities in discourse on changes to the existingsystem which would facilitate earlier effectiveresolution of complaints. I am strongly of theopinion that the present system includes delayswhich are unacceptable and that a coordinated effortto reduce those delays is necessary. I am also of theopinion that a significant reduction in the extent ofthe current reliance on lengthy formal reports by myOffice, to conclude consideration of complaintsreferred to me, is both necessary and achievable, ifthe current delays in the system are to be reduced

having regard to available resource levels. This couldbe facilitated by, inter alia, promoting the notion of aresolution based on informal contacts with thisOffice at the Investigation Officer’s report stage, myformal preliminary views and by better use ofelectronic means of communication between myOffice, complainants, military and civil authorities.Such changes may require amendment to thelegislative and regulatory framework.

In the context of an ongoing review of the DefenceForces Redress of Wrongs system, I continued toencourage the use of early resolution procedureswithin the Defence Forces system, including theearlier involvement of my Office wherever that couldbe of assistance. I acknowledged and appreciated theDepartment of Defence’s consultation with my Officein late 2014 regarding its draft proposals forupdating the existing Redress of Wrongs (ROW)process, as provided for in section 114 of theDefence Act. In response, I offered the formal orinformal assistance of my Office in any circumstancewhere it might contribute to the early and speedierresolution of complaints. I have proposed that agreedconsultation and interaction with my Office at theInvestigation Officer’s report stage, on either aformal or informal basis, in appropriate cases couldsignificantly contribute to the earlier resolution ofcomplaints.

I believe that it is essential that complaints regardingthe administrative procedures of the Defence Forcesand those of the Department of Defence continue tobe subject to the external scrutiny of an independentand impartial civilian authority which has a degreeof knowledge, understanding and competence in suchmatters. Members of the Irish Defence Forces are ina unique position as citizens of the State. Our‘citizens in uniform’ are subject, not only, to all ofthe ordinary laws of the State, but also, to a strictcode of military law and discipline provided by the

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Defence Act 1954, Defence Force Regulations,Administrative Instructions and orders of superiors,both written and verbal, which code is applicableonly to a disciplined body with a chain-of-commandstructure. It is in such unique circumstances thatindependent civilian oversight of complaints is vestedin the ODF by section 4 of the Ombudsman (DefenceForces) Act 2004. Subject to a 12 month time limit,the Ombudsman may investigate an ‘action’ [defined

in the 2004 Act as including a failure to carry out anact or make a decision] by a serving or formermember of the Defence Forces or by a civil servant ofthe Department of Defence, where it appears to theOmbudsman that the action complained of has ormay have adversely affected a member or formermember of the Defence Forces and where the actionwas, or may have been, taken without properauthority, taken on irrelevant grounds, the result ofnegligence or carelessness, based on erroneous orincomplete information, improperly discriminatory,unreasonable (even in the military context), based onundesirable administrative practice, or otherwisecontrary to fair or sound administration, incircumstances where the action complained of wasnot an order issued in the course of a militaryoperation.

Certain ‘actions’ are excluded by law frominvestigation by the Ombudsman pursuant to section5 of the Act of 2004, even though the complainant

may be perfectly entitled to complain about themunder the current Redress of Wrongs schemeprovided by section 114 of the Defence Act by virtueof the use of the unlimited term “any matter” in thestatute. The actions excluded from the remit of theOmbudsman are those in respect of which thecomplainant has initiated legal proceedings in a civilcourt, actions which have been or are the subject ofan investigation or punishment under the code ofmilitary law, an action relating to or affectingsecurity or a military operation (as defined in theAct), an action relating to the terms or conditions ofemployment in the Defence Forces, including anaction relating to the negotiation and determinationof rates of remuneration or allowances, which iswithin the scope of a conciliation and arbitrationscheme referred to in section 2(6) of the Defence(Amendment) Act 1990, actions concerning theorganisation, structure and deployment of theDefence Forces, actions concerning theadministration of military prisons or places ofdetention, or actions taken before 1 December 2005.

The Office of the Ombudsman for the DefenceForces marked ten years in existence during 2015. Irecommend that aspects of the ‘actions’ excludedfrom its jurisdiction by the 2004 Act should bereviewed in the light of that experience. There is aneed to further clarify the limits or extent of thestatutory exclusions and to reconsider whether it isactually militarily or otherwise necessary to excludethem totally. In that context I pose the followingquestion:

In circumstances where maladministration is aprimary consideration for an Ombudsman, whyshould any administrative aspect of most, if notall, of the excluded matters be outside thejurisdiction of the Ombudsman?

Consider two scenarios. Firstly, a member or former

“I continued to encourage the use of earlyresolution procedures within the DefenceForces system

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member of the Defence Forces can submit a complaintregarding ‘any matter’ under the Redress of Wrongs(ROW) provisions of section 114 of the Defence Act incircumstances where once the Redress of Wrongsprocess is exhausted the complainant has a right tohave the complaint referred to the Ombudsman, whomay have no jurisdiction to investigate his complaintbecause of the exclusion provisions of section 5 of the2004 Act. In the light of experience to date:

Are those exclusions necessary and reasonable incircumstances where the powers of the ODF arelimited to the making of a recommendation to theMinister?

Secondly, a member or former member of the DefenceForces may complain directly to this Office about an‘action’ taken by a civil servant of the Department ofDefence, in circumstances where such a complaint isnot admissible under the Redress of Wrongs provisionsof section 114 of the Defence Act, and where there is nocomplaint investigation procedure prescribed within theDepartment of Defence.

Is it not readily apparent that there is a need tohave an internal complaints procedure within theDepartment of Defence to receive and address, andwhere possible speedily resolve, complaintsrelating to ‘actions’ of civil servants affectingmembers or former members of the Defence Forces,before decisions are appealed to this Office?

Further to the aforementioned, additional jurisdictionhas now been assigned to my Office pursuant to section20 of the Protected Disclosures Act 2014. Under thatwhistleblower legislation the Ombudsman may alsoinvestigate a complaint, referred directly to him by aComplainant who claims that s/he has been penalisedor threatened with penalisation for having made aprotected disclosure under that Act, when thecomplaint is not one submitted under the Defence

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Forces Redress of Wrongs legislation. In suchsensitive circumstances:Would it be helpful to establish and agreeappropriate investigation arrangements with theDepartment of Defence, including procedures forcompliance with the production of informationprovisions of section 8 of the Ombudsman (DefenceForces) Act 2004?

Generally, all ‘administrative actions’ of the militaryauthorities and of civil servants of the Department ofDefence, including failures to act or to make adecision, are, or ought to be, reviewable by theOmbudsman. I recommend that these matters beaddressed and clarified in an urgent review of thelegislation, i.e., the Defence Act 1954 and theOmbudsman (Defence Forces) Act 2004. Irecommend that in such a review consideration begiven to the adoption of measures which wouldfacilitate a shortening and speeding up of theDefence Forces ROW and Complaints processes. Ialso propose consideration of a 90 day target for theresolution of complaints referred to the ODF, similarto that contained in the EU Alternative DisputeResolution (ADR) Directive 2013 on consumerrights. Consideration should also be given to existingavailable resources. Current practices, proceduresand resources would not facilitate the achievement ofthe proposed time line in many cases.

In the absence of this Office as an independentinvestigative authority for a complaint by a memberor former member of the Irish Defence Forces, such acomplaint could, and in some cases would, beaddressed by way of Judicial Review in the HighCourt with resultant significant legal costs for thecomplainant and for the State.

I believe that it is in the best interests ofcomplainants, the Military Authorities and theDepartment that complaints and concerns regarding

administrative procedures and practices are dealtwith in a non-adversarial structure where possible.The ROW and ODF systems allow goodinterpersonal relationships to be retained andfacilitate direct engagement between the parties, toresolve the ‘action’ complained of. In that regard,having regard to the resource levels available, Ibelieve that the Office of the ODF provides value formoney and with amended procedures and additionalresources it could do more.

When a complaint is referred to the ODF, acomplainant who believes s/he has been wronged orunfairly treated is entitled to expect that a remedywill be available in the event that his/her complaintis upheld. Remedies recommended may concernpromotion, being provided with a place on a careercourse, or a particular posting or duty. Effecting sucha remedy may prove problematic where thepromotional opportunity is now gone, where thecourse has already commenced or even finished, orwhere a particular duty, such as an overseas dutymay have already departed. In that regard, the ODFacknowledges the patience, realism and enduringacceptance of reality which members and formermembers of the Irish Defence Forces havedemonstrated. Complainants have informed the ODFthat, notwithstanding the absence of an appropriateremedy in certain instances, they were pleased thattheir grievance was investigated and upheld and thatthey were vindicated in their complaint.

The absence of a suitable remedy may be due partlyto the time delay between the action complained oftaking place and the issuing of Final Reports andrecommendations by the ODF. Each case is different,some are more complex, legally and administratively,than others. Whilst it may be possible to progressone case speedily, it may not be possible withanother. Notwithstanding that, it is the continuingpolicy of the ODF to offer direct and early

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intervention in any case where it appears that suchintervention might contribute to an earlier resolutionof the matter between the parties. The ODF issatisfied that with continued good will, improvedinformation exchanges and an open mindedapproach by all parties, complaints could be resolvedearlier than heretofore, while suitable remediesremain available. The ODF believes that the ongoingreview of the ROW process provides an opportunityfor serious consideration of early interventioninitiatives, which would contribute to improvedoutcomes.

ODF Annual Reports have previously includedrecommendations for administrative and systemicreform. Monitoring the implementation of suchrecommendations, once accepted by the Minister forDefence, remains a function of the ODF. I am pleasedto acknowledge that the Department of Defenceprovides the ODF with regular updates from theStanding Committee on Defence Forces PersonnelPolicy Issues on the implementation status of reformsarising from ODF recommendations. However, itappears to me that in some instances theimplementation of reforms takes too long. In 2015,the ODF in association with the Department of theDefence audited outstanding administrative andsystemic reforms and agreed, where appropriate,timescales for undertaking and completing internalMilitary/Departmental reviews and implementingsuch reforms. I record, and acknowledge myappreciation for, the support and assistance of theDepartment of Defence in this regard.

During 2015, the ODF continued its engagementswith the Ombudsman Association (OA) – theorganisation for Ombudsman and ComplaintHandler Office Holders in the UK and Ireland. TheODF membership of the OA was re-accredited in2013/2014 following a review of all members of theAssociation. The OA recommended a minimum

term of Office of five years for an Ombudsman. Ihave commended that recommendation to theDepartment of Defence. The ODF also continued itsmembership of the International OmbudsmanInstitute (IOI). The ODF continued to engage withthe International Conference of OmbudsmanInstitutions for Armed Forces (ICOAF) – theinternational grouping of Offices of Ombudsman orInspectorates of Armed Forces. The ODF has alsocontinued its engagement with the Irish OmbudsmanForum. This Forum of Ombudsman Institutionswithin Ireland was established in December 2013and pursues matters of common interest toOmbudsman Institutions in Ireland.

2015 witnessed the outcome of the revised 2014NCO Promotion Agreement which has addressedissues which were the subject of complaints to thisOffice regarding the 2012 Agreement. Competencybased assessments now appear to be more acceptableto members of the Defence Forces as provided for inthe new arrangements. NCO promotion vacanciescontinued to be filled from panels established atnational level with inevitable disappointments forunsuccessful candidates. While the 2012 promotionsystem contributed to an upward movement incomplaints notified to this Office, the 2014 revisedarrangements do not appear to have had assignificant an impact on the level of complaints tothis Office.

In conclusion, I recommend that unrealised careerexpectations need to be addressed as a DefenceForces policy issue.

_____________________________ Patrick Anthony McCourtOmbudsman for the Defence Forces

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Highlights of 20152

Notifications ofComplaint received in2015, including 3 directlyreferred by formermembers of the Defence

Forces. This was almost on a par with the112 notifications received in 2014 and isa continuation of the significant increase on the volume of notifications received in earlier years.

111

new cases were referred to ODF in 2015.This includes 3 cases that were directlyreferred to this Office. This is on par

with the 34 new cases referred toODF in 2014 and a significant 29% reduction on the 45 new

cases referred in 2013.

32

cases remained under review by the ODF on the 31 Dec 2015.

cases in all were under review by the ODFduring 2015. This is a 15% increase on the115 cases under review in 2014.

1 3 2115

cases were brought to final conclusionsby the ODF during 2015. In addition,

progress was achieved during 2015 in 9 of the remaining cases

under review.

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Annual Report 2015

Of the

11188 were in respect of Privates and NCOs

and 23 were in respect of Officers.

Notifications ofComplaint received,

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Notifications of Complaint

108 Notifications of Complaint were received bymy Office from the Defence Forces during 2015, aswell as 3 direct referrals for a total of 111. This ison par with the 112 Notifications received in2014. 89 of those complaints were from serving orformer other ranks personnel while 23 were fromserving or former commissioned officers.

Of the Notifications received during 2015, some29 were withdrawn during the course of the yearand some 20 were referred to the ODF forinvestigation.12 other complaints were referred toODF for investigation.

The ODF also received some 117 direct contactsfrom members of the Defence Forces or membersof the public in relation to queries, concerns or

information requests. There were also numerousdirect contacts between the ODF and the MilitaryAuthorities and individual members in respect ofindividual cases, however, such contacts are notrecorded for statistical purposes.

Direct referrals to ODF

Serving members of the Permanent and ReserveDefence Forces must initially process theircomplaints through the statutory (section 114Defence Act 1954) Redress of Wrongs procedureand exhaust the internal Defence Forces processbefore referring their complaint to this Office.Former members of the Defence Forces may refertheir complaints directly to this Office, subject tothe requirements of the Ombudsman (DefenceForces) Act 2004.

Analysis of Complaints& Appeals - 20153

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Total cases

The following table outlines the progression of these 132 cases during 2015 –

Preliminary Investigation OngoingPreliminary InvestigationCompleted and Report Issued Final Report Issued

106 (80%) 9 (7%) 17 (13%)

17

9

106

In 2015, some 3 complaints were referred directly tothis Office. This is the same as the number ofcomplaints referred directly in 2014. 2 of thesecomplaints were from former other ranks personneland the remaining complaint was from a formercommissioned officer.

Cases reviewed by ODF in 2015

On 1 Jan 2015, some 100 cases were carriedforward under review by this Office. During 2015some 32 new cases were received by this Office sothat the total number of cases under review by thisOffice during 2015 was 132. Of these, some 17 caseswere brought to a conclusion during 2015. 115 casesremained under review on 31 December 2015 andwere carried forward for consideration in 2016. Thisrepresents a 15% increase on the number of casescarried forward from 2014.

Details of Complaints Investigated byODF in 2015

The following Tables set out the nature ofcomplaints considered by this Office during 2015along with details of complaints by militaryformation. It should be noted that complaintscategorised as ‘Maladministration’ cover a variety of

issues including complaints in respect ofperformance appraisal and issues related todischarge among others. Complaints categorized as‘Interpersonal Issues’ include those where thereappears to be elements of personality conflict,inappropriate behaviour or alleged bullying.

It should be noted that following the re-organisationof the Defence Forces at the end of 2012, the 4 WBde was disbanded and its members were subsumedinto the remaining military formations, primarily the2 E Bde. ROWs originating from officers and menserving with 4 W Bde are, for the purposes of 2015reporting, reflected in the figures of the formationswhere they are now serving.

Preliminary Investigation Ongoing

Preliminary Investigation Completed and Report Issued

Final Report Issued

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Cases by Military Formation

Of the 132 cases on hand during the course of the year, the following table outlines the number of cases arisingin each Military Formation.

1 SouthernBrigade

2 EasternBrigade

DefenceForces HQ

DefenceForcesTrainingCentre Air Corps

NavalService Total

25 (19%) 35 (26.5%) 9 (7%) 13 (10%) 32 (24%) 18 (13.5%) 132

Nature of Cases

The nature of the cases on hand with the ODF during 2015 can be broken down into the following broadcategories –

MaladministrationNon-Selection forPromotion

Non-Selection for aCareer Course

InterpersonalIssues

Non-Selection forOverseas Service orParticular Posting

47 (35.5%) 56 (42.5%) 8 (6%) 4 (3%) 17 (13%)

35

13

18

9

25

32

1 Southern Brigade

2 Eastern Brigade

Defence Forces HQ

Defence Forces Training Centre

Air Corps

Naval Service

56

47

174

8

Maladministration

Non-Selection for Promotion

Non-Selection for a Career Course

Interpersonal Issues

Non-Selection for Overseas Service or Particular Posting

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17

13

10

9

10

1

4

1

5

2

5



InterpersonalIssues


9 (36%) 10 (40%) 1 (4%) 1 (4%) 4 (16%)

Maladministration





2 E Brigade – (35)



InterpersonalIssues


10 (28.5%) 13 (37%) 5 (14.5%) 2 (5.5%) 5 (14.5%)

Maladministration





Details of Cases by Formation

The following tables and charts set out the nature of cases on hand during 2015 by individual MilitaryFormations –

1 S Brigade – (25)

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Defence Forces Training Centre – (13)



InterpersonalIssues


3 (23%) 4 (31%) 1 (7.5%) 5 (38.5%)

Defence Forces HQ – (9)



InterpersonalIssues


3 (33.5%) 5 (55.5%) 1 (11%)

3

5

3

1

5

4

Maladministration


Interpersonal

Maladministration



Non-Selection for Overseas Service or Particular Posting1

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19

Air Corps – (32)



InterpersonalIssues


18 (56.5%) 9 (28.5%) 2 (6%) 1 (3%) 2 (6%)

Maladministration





9

22

1

18

Naval Service – (18)



InterpersonalIssues


4 (22%) 14 (78%)

Maladministration


4

14

ODF Recommendations

*Includes 1 complaint outside ODF’s terms of reference and 1 complaint which was withdrawn.

It should be noted that in many cases where the ODF did not uphold a complainant’s case, the ODF did makerecommendations for administrative or system changes in circumstances where current procedures appeared tobe contributory to the original complaint.

Complaint Upheld by ODF Complaint Not Upheld by ODF

2 15*

Minister’s Response To ODF’s Recommendation

Rejects ODF Recommendation

Accepts ODF Recommendation

Minister Accepts Minister Does Not Accept

16 1

16

1

15

2

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20

Complaint Upheld by ODF

Complaint Not Upheld by ODF

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Annual Report 2015

The following case summaries set out details of some of the cases investigated by the Ombudsman for theDefence Forces during 2015.

Case Summary 1

Career Course – Refusal to award Pass of Module 3 Standard NCO Course 2003 due to service-training-related injury preventing completion of course – TS INF 04/2002 - Delay in Notification of outcome ofrequest for review – Refusal of Appeal to DDFT - Delay in submission of ROW – Jurisdiction

Complaint Findings: OTOR but queries raised and recommendations made.

As a result of sustaining a back injury in thecourse of training for Module 3, Standard NCOCourse 2003, the Complainant missed four daysof that course, yet was informed on the last dayof the course that he had not passed that Moduledue to those absences, despite having passed allother relevant tests, and was later informed thathe needed to repeat Module 3.

The Complainant took issue with:• The decision not to award him a Pass in

Standard NCO Course 2003, Module 3,despite having passed his test subjects andappointments during Module 3, and havingsince performed Private and/or Corporalroles missed through injury in Module 3, andthe consistent support of the case by hisCompany Officer, Commanding Officer andFormation EO;

• The delay in notifying him of the outcome ofhis request for review of that decision; and

• The outcome of his appeal to DDFT.

The Complainant submitted an application forROW in February 2010, explaining the reasonfor the delay in making a submission was that he

was awaiting the outcome of his applications fora “review of” and subsequent “appeal against”the decision not to award him a Pass in Module3. The result of his “review” request was notifiedto him on 19 May 2008, and the outcome of hissubsequent “appeal” was notified to him on 1April 2009. His “appeal” against the earlier“review” was not upheld. He claimed that thesix-year delay in the process denied him hiscareer opportunity.

By way of redress, he requested that he becredited with Module 3; that he be awarded aPass for the complete Course; and that he bepromoted to the rank of Sgt in his present unit.

COS found there to be no reasonableexplanation for the delay in dealing with thecase, and acknowledged the Complainant wasowed a full apology. However, COS deemed theComplainant to have missed too much of thecourse in order to get a complete assessment ofhis performance at a crucial phase of the module,and as a result, refused the redress sought on thebasis that it was not in the interests of theDefence Forces to qualify an individual for

Case Summaries4

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promotion to higher rank and responsibilitysimply on the basis that his appeal of thedecision not to qualify him was delayed. COSreiterated the offer to the Complainant tocomplete Module 3 on the next Standard NCOCourse.

The Ombudsman noted that while theComplainant’s Personal Record recorded that theComplainant was paraded and informed fourdays before the end of the course that he had notpassed that Module due to absence, those entrieswere neither initialed nor signed by theComplainant.

The Ombudsman noted the absence of anycomment, endorsement or explanatory notes onthe Course Report as to why the Complainantwas required to repeat Module 3 having regard

to his actual and recorded performance on thecourse. Moreover, it was noted that theComplainant’s Course Personal Record failed torecord what the consequences were, or might be,for his time missed through injury. Finally, it wasnoted there was no information recorded on theComplainant’s Course Report to indicate why, orby whom, the decision was made that he mustrepeat Module 3. The Ombudsman queriedwhether that was a mandatory or discretionarydecision, who made it and what reason(s) if anywere recorded to support that decision.

As a result, consideration was given to thecontent and effect of TS INF 04/2002, whichprovides, inter alia, “Students will be apprised oftheir status as such a situation develops and willreceive a warning prior to being returned to theirunit.” Furthermore, TS INF 04/2002 provides

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that “personnel who do not complete Module 3successfully may, on the recommendation of theComdt, The Infantry School, return and attemptModule 3 only on a subsequent course.” TheOmbudsman commented that the file indicatedthe Complainant passed all specified mandatoryelements of Module 3 and there were no formalwritten tests on that phase. He queried thecriteria applied by, and the degree of discretionavailable to, the Comdt, The Infantry School, inhis decision not to pass the Complainant, wherethe Complainant suffered a service-related injury.

In any event, where the Ombudsman deemedeach of the three elements of the Complainant’sROW application to fail to meet the statutorytime limits within which to refer a matter to theOmbudsman, set by section 6(3) of theOmbudsman (Defence Forces) Act 2004, theOmbudsman had no option but to refusejurisdiction in respect of all three elements of theROW application.

Notwithstanding the jurisdictional issue, theOmbudsman raised the following queries for theMinister: • Regarding TS INF 04/2002, what discretion

was available and to whom, with regards tothe making of the decision not to pass astudent in circumstances such as theComplainant’s? Might another person havecome to a different decision in the samecircumstances? Could that decision berevisited?

• Was any serious consideration given to theComplainant’s submission? If so, when, bywhom and where was this recorded? If not,why not?

• Why did the delay occur in completing theComplainant’s course report, in giving himhis report, in finalising the report, in dealingwith the Complainant’s request for “review”and in dealing with his further request to“appeal” the “review” decision?

• Was any offer made to the Complainant tore-do Module 3 before 2010? If so, whenand by whom and what was his response? Ifnot, why not?

Finally, the Ombudsman made the followingrecommendations for consideration by theMinister: • The Ombudsman recommended a review of

procedures in respect of the absence of theComplainant’s initials or his signature on hisPersonal Record entries pertaining to himbeing paraded and informed four days beforethe end of the course that he had not passedthat Module.

• Having regard to the provisions of the TSINF 04/2002, which provides that studentswould be apprised of their status as such asituation develops and receive a warningprior to being returned to their unit, theOmbudsman stated that it would bereasonable to expect that the issuance of sucha “warning” would be carefully and clearlyrecorded and confirmed by the student’swritten acknowledgement.

• The Ombudsman recommended the Ministerask the military authorities to again re-examine this complaint, having regard to thedetails of TS INF 04/2002, the consistentrecommendations of the Complainant’s caseby his military superiors, the circumstances inwhich the Complainant sustained his injuryduring the course, the unexplained andunreasonable delay in deciding on theComplainant’s request for a ‘review’ and hissubsequent ‘appeal’ of the decision and thetotality of the Complainant’s service record,with a view to reconsidering what discretion,if any, could have been exercised in adifferent way. Such a review could be carriedout on a “without prejudice” basis, and anyfinding in favour of the Complainant shouldnot be considered as establishing a precedent.

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Case Summary 2

Promotion – Competition – Agreed criteria not incorporated into Promotion Framework – Lack oftransparency – Length of service – Higher placed candidates awarded higher marks than entitled to –Administrative error

Complaint Findings: Complaint Upheld, appropriate gesture to be made.

The Complainant was unsuccessful in a promotioncompetition. He issued a Redress of Wrongsapplication complaining that the Length of Service(LOS) marks awarded to two higher placedcandidates had been too high. He claimed that thetwo candidates had been “parachuted” into theirrank in an earlier competition and pointed toparagraph (7)(b) of Conciliation Council Report(CCR) No. 295, which states:

“the inclusion of candidates in senior classes forpromotion purposes should have ceased after thecandidates had availed of the facility once.”

The Military Investigating Officer (MIO) did notuphold the Complaint. He found that the LOSmarks had been consistently applied on the basis of“an interpretation and extrapolation of the relevantprovisions of the existing administrative instructionand related promotion agreements”. The twocandidates had been awarded LOS marks on thebasis that they were “junior qualified” He notedthat the scheduled review of the 2004 promotionsystem, after five years, had not taken place and thusAdministrative Instruction A15 (Admin Instr A15)had not been amended to make clear thisinterpretation.

The Complainant’s Commanding Officer and theChief of Staff (COS) agreed with the MIO. The COSexplained that “junior qualified” meant that the dateof their promotion to the rank they held at the timeof the competition was the relevant factor indetermining their LOS marks. The COS agreed withthe MIO that there was a need for clarity in the useof the term “junior qualified” and that candidatesshould be furnished with their LOS marks prior tothe commencement of competitions.

The ODF questioned whether this amounted to adesirable administrative practice and queried why

Admin Instr A15 had not been amended in theinterests of fairness, openness and transparency. Themilitary authorities responded that the amendmenthad been delayed as it could not be made prior toDefence Forces Regulation A15 (DFR A15) beingamended. The ODF further invited comment on theeffect of the related provisions of CCR 447 whichset out the criteria for assessment of officers andstated that “the sections of the 2004 agreementdealing with the cadet class association will bedeleted as they are no longer relevant given thenew length of service in the rank criteria”. Themilitary authorities responded that that provisioncorroborated their view on the LOS marks awardedto the candidates.

The ODF found that there was no authority withinthe promotion framework, as it then was, for thetwo candidates to be awarded the maximum LOSmarks available as they had been. The ODF analysedthe three tiers of the promotion framework forofficers of the Permanent Defence Forces; thestatutory provisions (the Defence Act 1954), theregulatory provisions (DFR A15) and theadministrative provisions (Admin Instr A15). Theawarding of LOS marks was clearly part of theassessment process, which was the responsibility ofthe promotion board established for that purpose,and was governed by Admin Instr A15. Admin InstrA15 made no reference to the provisions of CCR447, which military authorities relied upon and was“currently being transposed into the Admin Instr”.While paragraph 7C of DFR A15 referred to CCR447, it made no reference to the assessment process.Furthermore, the provisions of Admin Instr A15were inherently contradictory and, therefore,contrary to fair and sound administration.

The ODF noted that DCOS (Sp) was authorised tomake any necessary updating amendment to theLOS marking system in Admin Instr A15, pursuant

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to the powers vested in him by paragraph 3A ofDFR A15, but had failed to exercise this power. TheODF could not find any legal reason why AdminInstr A15 had not been amended by DCOS (Sp) toreflect the updated LOS provisions agreed in CCR447. It transpired that the DFR A15 had in fact beenamended three days before the convening order forthe promotion competition, however, the militaryauthorities stated that it was not possible totranspose CCR 447 into the Admin Instrimmediately. The ODF took the view that theamendments should have been prepared in advanceand the failure to implement them in time for thepromotion competition meant that key operationalvacancies were filled on the basis of informalextrapolation of unimplemented LOS markingprovisions. This was an undesirable administrativepractice.

The ODF could find no authority in Admin InstrA15 to support the use of “date of promotion” tocalculate LOS marks. The ODF was advised thatDHRMS had determined that the maximum LOSmarks would be awarded to senior and juniorqualified members who competed in a previouscompetition four years earlier. However, the twocandidates whose LOS marks were being challengedwere not qualified to compete, and were not in factcandidates, in the previous competition.

The ODF found that the Complainant, along withall other candidates, was not aware, at the time ofthe competition, of the DHRMS decision to awardLOS marks in accordance with the unimplementedCCR 447, rather than Admin Instr A15. Incircumstances where the impact of the award of

such marks was so significant, this lack of awarenessreflected an absence of transparency in thecompetition process which was unnecessary,procedurally unfair and contrary to fair and soundadministration.

The ODF found that the two other candidatesshould not have been awarded the maximum LOSmarks, either on the basis of their length ofcommissioned service or on the basis of theirassociation with any other class of candidate as“junior qualified”. There was no authority tosupport their marks, even if the provisions of CCR447 had been transposed into the promotionframework.The ODF therefore upheld the complaint, findingthat the Complainant had not been recommendedfor promotion due to an administrative error in thepromotion competition. The ODF recommendedthat the administrative error be acknowledged withregret and that some gesture be made to theComplainant in respect of the wrong that he hadsuffered. In particular, the ODF recommended thatthe losses particularised by the Complainant beconsidered by the military authorities. However, theODF was not in a position to recommend the natureof the appropriate gesture.

The ODF also recommended that CCR 447 be fullytransposed, if not yet done, without delay and beforeany further promotion competition. He furtherrecommended a review of the administrativemethodology for the incorporation or transpositionof agreed proposed measures into the promotionframework.

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Case Summary 3

Complaint arising out of handling of prior complaint – No evidence of incorrect handling – Issues shouldhave been raised during investigation of prior complaint – Interview with COS – Entitlement to personalinterview on occasion of general inspection – Official visit but not general inspection – Lack of clarity

Complaint Findings: Not upheld

The Complainant submitted six complaints inrelation to five of his superior officers. Five ofthe complaints concerned the handling of aprevious complaint by each such superior officer,while the sixth concerned a refusal by one of thesuperior officers to allow the Complainant tohave a personal interview with the COS duringan official visit by the COS to the Complainant’smilitary base.

The previous complaint related to an annualperformance appraisal. The ODF had found thatthe Complainant had to accept responsibility forhis informed acceptance of the appraisal when hesigned his AF 451 without question orreservation. However, the ODF found that thecomplaint was, in any event, outside the timelimit provided for under s.6(3) of the 2004 Actand therefore outside the ODF’s terms ofreference. The Complainant had based thecomplaint on an academic paper which heclaimed to have only become aware of recently.

Despite the Complainant’s previous experience ofcomplaints to the ODF, five of the six complaintswere submitted to the military authoritiesbetween 10 and 12 months after the allegedactions complained of. Having regard to s.4(2)(d) of the Act, which provides that a mattercannot be referred to the ODF until a period of28 days has expired since the complaint and onlywhere it is “not likely to be resolved”, and s. 6(3)of the Act, which excludes the ODF from hearinga complaint if more than 12 months have passedfrom the date of the action concerned, themilitary authorities were left with very little timeto deal with the complaints.

This was compounded by the fact that, given theComplainant’s rank, the nature of the complaintsand the history of his previous complaint, the

authorities had difficulty appointing members todeal with the complaints. In the event, theComplainant sought to refer three of hiscomplaints “directly” to the ODF. One suchcomplaint was submitted just before the expiryof the 12 month period, while the other two wereafter that period. The other three complaintswere referred to the ODF by the authorities afterthe expiry of the 12 month period. However,following consultation with the parties, and asdictated by the equity of the situation, it wasagreed, on an exceptional basis, that the ODFwould deem each complaint to be within thestatutory time frame. Further, time was given tothe authorities to attempt to resolve thecomplaints.

Arising from the unique difficulties ininvestigating the complaints due to theComplainant’s seniority and the nature of thecomplaints, the authorities appointed the DeputyChief of Staff (Support) (D COS (Sp)) as, ineffect, final military adjudicator in relation to thecomplaints. In the opinion of the ODF, this was afair, reasonable and pragmatic approach,however he recommended that a review shouldbe carried out to establish procedures for suchsituations in the future. The ODF furtherrecommended that consideration be given toensuring that Complainants are kept apprised ofthe progress of the investigation of theircomplaints by the military authorities.Furthermore, the ODF recommended that theauthorities would be more pro-active in keepinghis office informed of such progress, perhaps bythe appointment of an appropriate ‘point ofcontact’ at Formation level.

The first complaint was against the MilitaryInvestigation Officer (MIO) in the priorcomplaint. The Complainant contended; (1) that

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the MIO’s findings had been incorrect andmisleading; (2) that while the MIO read hisreport to the Complainant he had declined toallow him to read it or have a hard copy of same;(3) that the MIO had made an unreasonable leapof logic in asserting that the Complainant shouldhave known of the existence of the academicpaper before he said he had; (4) that the MIOought not to have raised the issue of the ODF’sjurisdiction in his report (even if his commentwas correct). The D COS (Sp) found that theComplainant had not been wronged.

The ODF took the view that any issues theComplainant had with the MIO’s report shouldhave been raised immediately (rather than almosta year later) so that the GOC could considerthem in his considered ruling. Further, there wasa second opportunity to raise the issues when thecomplaint was referred to the COS. In this case,the Complainant did in fact set out his concernsin a letter to the COS and they were consideredby the COS in his considered ruling. The ODFfound that the MIO’s report did not pre-determine the outcome of a complaint. It wassubject to both internal and external review. TheODF further found that the Complainant had, ineffect, reformulated elements of his priorcomplaint which had been determined to beoutside the jurisdiction of the ODF. It would bequite exceptional to allow a Complainant to re-open such a complaint through a later complaint.The ODF was satisfied that the MIO had notmislead the COS, had acted entirely within theauthority given to him and had not wronged theComplainant in any way. The ODF thereforedecided to exercise his discretion under s. 4(6) ofthe Ombudsman (Defence Forces) Act 2004 todiscontinue investigation of this complaint on thebasis that the Complainant had not takenreasonable steps at the relevant time to seekredress in respect of the subject matter. However,the ODF did recommend that consideration begiven to the adoption of a standard practicewhereby, with the GOC’s consent, a copy of theMIO’s report is given to a Complainant at thesame time as it is furnished to the GOC.

The second complaint was against the officer towhom the MIO’s report was provided, as thehigher authority, for considered ruling. The

complainant claimed that that officer hadwronged him by simply finding that he was in“general agreement” with the MIO’s findings. Heclaimed that the officer was obliged to addresseach complaint and the grounds upon which itwas made, and to provide an analysis of and ajustification for his ruling on each complaint.The D COS (Sp) did not uphold the complaint,finding that the officer had based his rationalefor his decision on the MIO’s report, whichprovided sufficient analysis and justification forthe ruling.

The ODF did not uphold this complaint.However, he acknowledged that the term“general agreement” was potentially confusingand recommended that officers express fullagreement with the MIO’s report if that is theirfinding. In this case, the ODF was satisfied thatthe officer was in agreement with the MIO’sreasoning and was not required to re-state same.Further, the ODF found that any concerns withthe content of a GOC’s considered ruling shouldbe dealt with in the context of the complaint, notby way of separate complaint at a later stage.

The third complaint was that a particular officershould not have been on a promotion board for acompetition in which the Complainant was acandidate. The Complainant claimed that theofficer had a personal and professional interest inthe outcome of the competition as he was theofficer who had given the appraisal, the subjectof the prior complaint by the Complainant. Theprior complaint remained under investigation bythe Chief of Staff (COS) at the time of thepromotion interview. The D COS (Sp) foundagainst the Complainant on the basis that theboard was constituted correctly and carried outits procedures within the terms of the relevantpromotion agreements and regulations.

The ODF could find no evidence that theMinister, the D COS (Sp) or the officer concernedhad not acted in accordance with the provisionsof the promotion framework. The ODF agreedwith the D COS (Sp) that the Redress of Wrongs(ROW) procedure was an administrativeprocedure separate and distinct from that of apromotion framework. The ODF was notpersuaded that there was any conflict of interest

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or bias, especially in circumstances where theofficer would have carried out assessments of allof the candidates and he had recommended theComplainant for promotion.

The fourth complaint was about the refusal togrant the Complainant a personal interview withthe COS. The Complainant relied in this regardon para. 11C of Defence Forces Regulation A7(DFR A7) which provides that “any personsubject to military law may submit personallyany grievance to any of the officers mentionedhereunder on the occasion of a general inspectionby such officer of a unit or military installation”.The officer to whom the request had been made(who was also the subject of the third complaint)refused the request on the ground that the visit ofthe COS was not a “general inspection”, butrather an “official visit”. The D COS (Sp) agreedand found that the Complainant had not beenwronged.

The ODF found that the COS’s branch hadadvised that the visit was not “to inspect theformation”. Further, there had not been a fullformation on parade, as would normally beassociated with, and indicative of, a generalinspection. The ODF did, however, find somemerit in the complaint as there was a lack ofcommunication from the COS branch as to thenature of the visit. He therefore concluded thatthe Complainant’s sense of grievance wasunderstandable. However, the ODF found thatthe personal interview which his office hadarranged for the Complainant with the D COS(Sp) was a sufficient and effective redress to thiscomplaint. The ODF recommended that in futureany “general inspection” by the COS be clearlyflagged as such and that any other official visitbe flagged accordingly.

The fifth complaint was that another officerauthorised the removal of a document from theComplainant’s sub-file for a promotioncompetition, without his consent, withoutauthority and contrary to section 2A(1)(a) of theData Protection Acts 1988-2003. The documentwas a letter which had been placed on his file tosatisfy a previous complaint by the Complainant.The Complainant contended that the removal ofthe letter had the effect of reversing an agreed

solution to the previous complaint. The D COS(Sp) found that the officer had not removed theletter, rather the letter had not been placed in theComplainant’s sub-file. Further, he found that theofficer, as the relevant data controller, had theauthority to refuse to allow the letter to beplaced on the sub-file. Finally, he found that thecontents of a promotion sub-file were prescribedby A Admin Instr A15, para. 31d. He thereforecould not find that the Complainant had beenwronged.

The ODF found that the alleged actions of theofficer were consistent with the provisions of theAdmin Instr and the legislation. In not upholdingthe complaint, the ODF noted that the D COS(Sp) had, at the interview with the Complainant,advised him as to how the content of the letter(which remained on the Complainant’s file) couldbe included in the interview process.

The sixth complaint was that an officer failed toprocess the prior complaint in a timely mannerand in accordance with Admin Instr A7, Chapter2, para. 206. He claimed this had a detrimentaleffect on a promotion competition he wasinvolved in. The D COS (Sp) did not uphold thiscomplaint either, finding that the delay had nothad the effect claimed.

The ODF could find no evidence that the delayalleged, or the existence of the prior complaintitself, had acted to the Complainant’s detrimentor disadvantage. Again, the ODF found that theROW procedure was an administrative processwhich did not interfere with or impact on otherongoing routine procedures, including theholding of promotion competitions. Thecomplaint was not upheld.

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Case Summary 4

Complainant redeployed to main unit after detachment – Allegation that redeployment due to reportingincidents – Allegation of no action taken on foot of complaint - Redeployment found reasonable -Interpersonal issues unsubstantiated – Absence of Independent Witnesses – Extra hour guard duty notinordinate in the circumstances - A Admin Instr A7 Ch.1 more appropriate than ROW - Allegations ofactions warranting referral of certain complaints to MP – Jurisdiction

Complaint Findings: Partially OTOR, not upheld.

The Complainant took issue with beingredeployed to his main unit after a period ofdetachment, which redeployment, he maintained,was due to his reporting a number of incidents tohis superiors on the 26th May 2013. Hemaintained that no corrective action was takenon foot of his reporting those incidents.Furthermore, the Complainant alleged that:

1. Correspondence from him to his CO waswithheld by persons at unit HQ, whichprevented him from meeting his CO.

2. A senior NCO inappropriately subjected himto unsubstantiated allegations, harassmentand abrasive comments.

3. His detachment commander engaged inactivity in relation to alleged verbalstatements about a superior NCO whichshould have been subjected to militaryjustice.

4. He was left on gate guard duty for aninordinate period of time without relief onthe 26 May 2013.

5. His detachment commander asked anotherNCO to make a false report in relation tothe alleged destruction of electronic data ona computer.

6. His CO made a decision in relation to theComplainant being moved to Dublin, basedon his character, and on false statements bya Senior NCO and an equal rankingcolleague.

By way of redress the Complainant sought: a. A thorough independent investigation into

his allegations. b. That consideration be given to a potential

detachment from his present unit until theinvestigation was completed.

c. If his complaint was upheld, that he beallowed transfer to another unit.

In respect of each of the allegations, MIOconcluded:

1. The delay in the Complainant’s interviewwith his CO was due to the deployment ofthe CO and the demands of his appointmentand not the result of any inappropriateactivity.

2. It was impossible to substantiate theComplainant’s allegations, as there were noindependent witnesses to the allegedunsubstantiated allegations, harassment orabrasive remarks.

3. No such comments were made. 4. One extra hour on the gate on the night in

question could not be considered aninordinate period.

5. It was impossible to substantiate theComplainant’s allegations, as both thedetachment commander and another equalranking NCO denied that one asked theother to make a false report about theComplainant.

6. There was no evidence of any falsestatements by anyone having influenced theComplainant’s CO in his decision to movethe Complainant back to his main unit or asto his opinion of the Complainant’scharacter. CO stated that he was redeployedbased exclusively on the Defence Force’srequirements.

MIO proposed that the Complainant’s concerns

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might, more appropriately, have beeninvestigated under A Admin Instr A7 Ch.1, asopposed to ROW. GOC concurred with thefindings of the MIO. COS directed that allegations relating to themaking of a false report by two serving membersin respect of the alleged destruction of electronicdata on a computer (allegation 5), and relating toverbal statements made by a serving member,that the complainant contended should besubject to military justice (allegation 3) werematters more appropriate for an investigation bythe Military Police (MP).

In respect of the balance of the issues, COSconcurred with the findings of the MIO, and thatthe matter would, more appropriately have beeninvestigated under A Admin Instr A7 Ch.1. Hefound that the Complainant had not beenwronged in respect of any of the issues raisedand so no redress was appropriate.

The Ombudsman upheld the finding of therebeing no wrong requiring redress and opined:

1. Regarding the redeployment of theComplainant to his main unit, no specifictime frame was sought or fixed for thedetachment. CO acted within his authorityand competence, and redeployed theComplainant for reasons that the COconsidered adequate, and which did notappear unreasonable. The detachment didnot carry with it any promise or undertakingas to its duration, and did not create anyreasonable administrative expectation, rightor entitlement for the Complainant tocontinue to serve indefinitely in thedetachment. There was no evidence ofmalfeasance, unfairness, maladministrationor abuse of authority. The Complainant wasnot wronged by the termination of hisdetachment. Moreover, the Ombudsmanopined that a complaint concerningdetachment was probably outside the remitof his Office, by virtue of section 5(1)(d)(ii)of the Ombudsman (Defence Forces) Act2004 (‘the Act’).

2. The Ombudsman deemed furtherinvestigations by him in respect of thecomplaint relating to false allegations, to be

unwarranted, unnecessary and inappropriatewhere the complaint was the subject of aninvestigation by the MP, and thereforerefused jurisdiction.

3. Regarding the balance of the allegation, theOmbudsman considered those matters to beoutside the statutory time limit forcomplaint that could be investigated by theOmbudsman, pursuant to section 6(3) of theAct. In any event, the Ombudsman exercisedhis discretion, pursuant to section 4 of theAct, not to further consider those matters, ashe considered satisfactory measures to havebeen taken by the COS to investigate thoseallegations.

The Ombudsman recommended that theComplainant reconsider his approach to hissuperior authorities’ opinions as to how best hemight resolve any remaining interpersonal issueswithin his unit, and perhaps undergo careercounseling or coaching by a suitable HR officer.The Ombudsman opined that the Complainant’stransfer to another unit, as mooted by theComplainant, might be in his best interests,however, it might also result in some careerdisadvantages. The Ombudsman alsorecommended that the Complainant consideraccepting career counseling or coaching from asuitable HR officer from outside his unit beforehe decided what course of action to adopt in thisregard and before he submitted any applicationfor a transfer to another unit.

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Case Summary 5

Discharge – Apprentice scheme – Failure of exams – Disciplinary charges – Sick record – Refusal oftransfer to line – No breach of fair procedures – No breach of Act or Regulations.

Complaint Findings: Not upheld, recommendation that military authorities review the Complainant’sservice since the discharge decision.

The Complainant, a member enlisted under atechnical training apprentice scheme, was orderedto be discharged from the Defence Forces pursuantto paragraph 58(r) of Defence Forces RegulationA10 (DFR A10). He was furnished with an AF 97Bsetting out the grounds for his proposed dischargeas follows; (1) failure to pass the FÁS course; (2)unacceptable sick record while on the course; (3)unsatisfactory conduct as an apprentice; (4) hehad been the subject of three disciplinary charges.The Complainant challenged the discharge andsought to be allowed to transfer and serve as a linesoldier.

The Complainant stated that his conduct ratingwas “good” and his medical classification was thehighest appropriate. He claimed that he failed hisexams because of an illness which requiredhospitalisation and surgery. He further claimedthat his application to transfer from technicaltraining to the line should be recommended andthat his continued service as a line soldier wouldnot be jeopordised. As regards the disciplinarycharges, the Complainant stated that they wereminor in nature and that he was never warned thatthey could jeopardise his continued service in theDefence Forces. The Complainant complained thathe was not allowed to transfer to the line, despiteothers who had failed technical exams beingpermitted to do to. Finally, he complained that thereliance upon paragraph 58(r) of DFR A10 todischarge him was inappropriate as it was adiscreditable discharge disentitling him toentitlements and protections in his statutorycontract.

The Military Investigation Officer (MIO) foundthat the Complainant’s proposed discharge hadbeen due to the cumulative effect of the fourreasons given in the AF 97B. The Complainant hadbeen given ample opportunity to pass the exams,sitting them four times and was warned of the

consequence of failing them. The MIO furtherfound that the Complainant had an unacceptabledisciplinary record for an apprentice. Heconcluded that the Complainant had not beenwronged. The GOC and the Chief of Staff (COS)agreed with the MIO. The COS noted that theComplainant’s primary function in theorganisation was to pass his exams andsuccessfully complete his apprenticeship, which hehad failed to do. This was the principal reason forthe discharge decision, with the poor disciplinaryrecord and the amount of time on sick leave alsobeing taken into consideration. The COS furtherstated that there was no obligation on the DefenceForces to transfer an individual who failed hisapprenticeship to the line. Rather, the ArmyApprentice Scheme (TI 7/2007) made clear that theapprenticeship was a probationary period ofservice and unsatisfactory performance might leadto discharge.

The Complainant had brought a judicial review inthe High Court challenging the decision todischarge him, however the parties had, with theapproval of the court, decided to strike out theproceedings and instead to process the complaintthrough the Redress of Wrongs procedure. In thecircumstances, the ODF took the view that he wasnot excluded from considering the matter under s.5(1)(a)(i) of the 2004 Act. Further, the ODF foundthat the period taken up by the court proceedingsshould be discounted in considering whether theapplication was out of time.

The ODF found, on the balance of probabilities,that the Complainant had been briefed on thecontents of TI 7/2007. Further, he was at all timessubject to the provisions of the Defence Act andthe Defence Forces Regulations. The ODF madeclear that he could not substitute his view for thatof the military authorities as to theappropriateness or otherwise of a decision to apply

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for the discharge of a serving member. The role ofthe ODF was to consider whether the authoritieshad complied with the applicable provisions of theAct and Regulations, as well as the requirements offair procedures.

The ODF did not find support for theComplainant’s contention that he was told thathe would be allowed to transfer to the line if hefailed his exams, nor for his holding anexpectation that he would be allowed to do so.Rather, the ODF found, on the balance ofprobabilities, that the Complainant had been puton notice that he would not be eligible fortransfer to the line without his CommandingOfficer’s recommendation and that the reasonsfor refusing his transfer request werecommunicated in writing and were notunreasonable. The authority to transfer him tothe line was discretionary rather than mandatoryand the authorities were not persuaded that itwould be in the best interests of the service totransfer him to the line. The provisions of TI7/2007 meant that a member who did notcomplete his or her apprenticeship could bedischarged without any additional reasons,provided fair procedures were followed.

While it was a matter solely for the authorities todecide the statutory basis for a proposed discharge,the ODF expressed the view that paragraph 58(r),“services no longer required”, was an appropriatebasis. The ODF did not share the view of theComplainant that that constituted a “discreditabledischarge”, but recommended that the reasons forthe discharge would be amplified, as was allowedfor under that provision.

The ODF could find no procedural unfairness inthe decision to refuse the Complainant’s transferrequest and the decision to discharge, nor could hefind any breach of the Act or the Regulations. Inthe circumstances, the ODF did not uphold thecomplaint. However, he noted that there had beeninordinate delay in disposing of the complaint withthe result that the Complainant had served anadditional five years in the Defence Forces sincethe Complainant’s discharge was proposed. TheODF recommended that the authorities review theComplainant’s service in that period, but notedthat he was again out on long-term sick leave andhad been restricted in carrying out his dutiesbefore going on leave. These factors would, theODF acknowledged, likely weigh heavily againstreviewing the decision to discharge him.

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Case Summary 6

Medical fitness to perform military duties - Alteration of Medical Book (LA30) - “Fit for HQ guard, andgate duties only” amended to “Fit for HQ guard, and gate duties only” – Failure to inform ofamendment to LA 30, contrary to fair or sound administration – Lack of adherence to DFR A8paragraph 65 - Care and custody of Medical Documents – Range of medical notations - Appropriatecontent of LA 30s

Complaint Findings: Not Upheld, recommendation to review medical notations available to MO’s.

The Complainant claimed that in the course of amedical review by a Medical Officer (MO), it wasrecorded in the Complainant’s Medical Book (LA30) and clinical notes within his medical file (AF722), that he was “Fit for HQ guard, and gateduties only”. The Complainant claimed that he wassubsequently informed by a senior NCO that he was“not fit for guard duties”. Upon reviewing the LA30, the Complainant found the entry to have beenamended with the word ‘Guard’ struck through. TheComplainant claimed that he received noinformation as to how this alteration had occurredand he was concerned that the alteration of the LA30 could impact on his future in the Defence Forces,or that an adverse inference might be taken by afuture MO regarding the Complainant’s handling ofhis LA 30.

An informal investigation revealed the MO amendedthe LA 30 and AF 722 and subsequently initialed theamendment. Dissatisfied with those informalfindings, the Complainant requested a formalinvestigation. When that request went without aresponse for almost three months, the Complaintsubmitted a ROW application, in which he sought,by way of redress:

• A formal investigation into the circumstances

surrounding the defacement/alteration of his LA30.

• Answers to various questions posed in previouscorrespondence.

• A written apology from the person who alteredhis LA 30 without his knowledge.

• If the person who alters the LA 30 did not haveAuthority to do so, the Complainant requestedthat disciplinary action be taken against him toreflect the seriousness of his actions.

The delay in dealing with the complaint before andduring the ROW process was due to thereorganisation of the Defence Forces during thatperiod.

The MIO made the following findings:

• The LA 30 was amended by the MO on theevening of the initial entry, and that it wasamended in the presence of the Medical NCO,by reason of the Medical NCO’s explanation tothe MO that a person who is excused fromwearing a helmet and flak jacket could not be fitto perform guard and security duty; and

• The MO did not alter the entry in theComplainant’s AF 722A until later, as thealteration on the LA 30 did not alter theComplainant’s medical status. However, the AF

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722 was altered to justify the MO’s decision toamend the LA 30.

The Complainant took issue with the lack of signingin or out record for LA 30’s in his unit. The MIO recommended that the unit address theproper signing in and out of official administrativerecords and the Complainant should have beenmade aware of the changes made to his LA 30 by hisunit authorities. GOC agreed with MIO’sconclusions and found the Complainant had notbeen wronged.

When referring his complaint to COS, theComplainant raised a number of issues, mostnotably, DFR A8, paragraph 65 or Admin Instr A8,paragraph 235, pertaining to the care and custody ofMedical Documents.

COS agreed with the conclusions of the MIO andfound that the Complainant had not been wronged.With regard to the redress sought by theComplainant, COS determined:

• A full formal investigation had taken place andthe issues raised by the Complainant clearlyaddressed;

• The Complainant’s CO had initiated a formalinvestigation, as sought by the Complainant,before ROW was submitted;

• MO altered the LA 30, was authorised to do so,and did so in the best interests of theComplainant having regard to the organisation’sduty of care to all of its members;

• MO was not aware, when he made the originalnotation regarding duties in the Complainant’sLA 30, that the Complainant could not performarmed duties where he was excused fromwearing a helmet and flak jacket;

• The Complainant was not wronged by MO’s

failure to inform him of the amendment andthat the redress sought was not appropriate.

COS directed that his unit acknowledge to theComplainant the failure to parade and inform himof the alteration to his LA 30. COS noted theComplainant’s concern at the lack of adherence toDFR A8 paragraph 65, specifically, the lack of careand custody of Medical Documents. The Ombudsman was satisfied with the findings ofMIO, and concurred with the reasoning anddetermination of COS in finding that theComplainant suffered no wrong requiring redress.However, the Ombudsman recommended:

• A review of procedures regarding the alterationof LA 30’s;

• A review of the current administrative controlsof important and personal medical records atunit level, and in particular the Complainant’s,where there was a lack of adherence to DFR A8,paragraph 65;

• A more fulsome expression of regret for theadministrative and communications failures atunit level be given to the Complainant by hisCO, together with a full acknowledgement ofany worry and angst he may have been causedby the lack of appropriate and timelycommunication with him;

• Consideration be given to reviewing the range ofmedical notations available to MOs whenmaking an entry in LA 30s having regard to allthe professional medical requirements and themilitary demands on members of the DefenceForces. MOs should then be briefed onappropriate content to record on LA 30s andother medical documents, as therecommendation is to COs with regard to themilitary employment of service personnel.

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Case Summary 7

Detachment from MP Coy to Infantry Battalion - Compliance with Admin Instr 1/96 Ch. (2) and (3) -Taskings given on return to MP Coy – Medical Disposals – “Light Duties” – Treatment by and taskingsgiven before and after detachment – Alleged Bullying and Harassment – Opportunity to Address underAdmin Instr A7 Ch1 - Jurisdiction under section 6(3) of the Act

Complaint: Majority OTOR, with residue of complaints not upheld.

The Complainant took issue with: 1. His detachment to an Infantry Battalion from

his parent unit, a Military Police Company(MP Coy);

2. The taskings given to the Complainant afterhis return to the MP Coy;

3. His treatment by, and the taskings he receivedfrom, a Sgt of his unit, before and after hisdetachment to the Infantry Battalion.

By way of redress the Complainant sought: a. A full apology for the way the Capt 2 i/c of his

unit had treated him. b. A full apology from the Sergeant and that he

refrain from placing the Complainant on tasksuntil he was cleared by a MO of the DefenceForces to carry out such tasks.

c. That a comprehensive investigation be

undertaken into the circumstances surroundinghis posting to the Infantry Battalion and thathe be given a copy of any report generated.

The Complainant was discharged, at his ownrequest, from the Defence Forces before the matterwas considered by COS.

COS offered the Complainant an apology for thetime frame within which his complaint wasprocessed, and noted his recent discharge from theDefence Forces. In respect of each of the issuesraised by the Complainant:

1. COS noted the considerations on which theCO based his decision to detach theComplainant from his parent unit to aninfantry unit in the same barracks having

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regard to his medical status at the time andthe need to find him gainful employment inthe same location during the period he wasrestricted to ‘Light Duties’. It was noted thatthe Complainant’s move to an infantry unitwas in accordance with procedures laid downin routine orders and Admin Instr 1/96 Ch. (2)and (3).

2. COS noted the CO considered the tasks givento the Complainant to be non-arduous innature and to be appropriate and in line withhis medical condition and were given to himin an attempt to ensure that he remainedengaged as a member of his unit. The taskswere identified at unit level and they were notmanual in nature, or armed, or requiring ofphysical exertion. COS was satisfied that theDetachment Commander had carried outsufficient liaison with his unit HQ in thatregard prior to detailing the Complainant.

3. COS acknowledged the difficultiesencountered by the MIO in verifying theallegations made by the Complainantregarding the treatment the Complainantcontended he received from his DetachmentCommander. COS was satisfied that theComplainant had been apprised by the MIOand GOC of the opportunity to address thisissue under Admin Instr A7 Ch1.

COS found that the Complainant had not beenwronged in respect of any of the issues raised bythe Complainant and so no redress wasappropriate.

In his submission to the Ombudsman, theComplainant alleged that he had been moved fromhis unit to an infantry unit because he had beenmedically downgraded; he had been bullied andharassed by his unit commander and hisDetachment Commander; and the investigationwas not properly executed, witnesses were notinterviewed and evidence had been ignored. Headded that he believed that he had evidence that hewas bullied and harassed and that he was giventasks that were contrary to the MO’s orders. The Ombudsman was satisfied with the findings ofMIO, and concurred with the reasoning anddetermination of COS in finding that theComplainant suffered no wrong requiring redress.However, he recorded that the DFR provisions did

not appear to provide adequate guidelines forMOs in the recording of their medical disposals,and he opined that clarification of the appropriateentries to be made by MOs would help avoidfurther such difficulties.

The Ombudsman deemed the complaint in relationto the Complainant’s detachment to the InfantryBattalion from his parent unit, a Military PoliceCompany (MP Coy); the taskings given to theComplainant before his return to the MP Coy; andthe complaint in respect of his treatment by andthe taskings he received from the Sgt of his unit,before his detachment to the Infantry Battalion tofall outside the jurisdiction of the Ombudsman, asbeing complaints in respect of matters whichoccurred outside the statutory time limits ofsection 6(3) of the Act.

The Ombudsman deemed the complaint in respectof his treatment by and the taskings he receivedfrom the Sgt of his unit, after his detachment to theInfantry Battalion to fall within the jurisdiction ofthe Ombudsman. The Ombudsman did not upholdthe Complainant’s claim that he was wronged bythe nature of the taskings given to him after hisreturn to his parent unit. The Ombudsman opinedthat the position should have been properlyexplained to the Complainant by an appropriatesuperior and he recommended that furtherclarification of medical disposal be considered. Anymisunderstandings by the Complainant regardinghis taskings or treatment after he acquired his non-service related injury could and should have beenimmediately clarified by his unit superiors for him.

The Ombudsman recommended: • In addition to the apology of COS regarding

the five-month delay in dealing with his ROW,an expression of regret that the Complainantmay not have fully understood theemployment implications of his medicaldisposal be offered to be Complainant;

• Consideration be given to offering him a letterof appreciation for his 26 years’ service in theDefence Forces;

• An expression of regret be offered to him thatit was not possible to finalise or resolve hisROW complaint prior to his discharge date;

• Wishing him well in his retirement.

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Case Summary 8

Jurisdiction - promotion competition - timing of competition - legitimate expectation - competitionarising due to expected retirement of another member - date ultimately set rendered Complainantineligible - anomaly in regulations - Conciliation and Arbitration (C&A) scheme - Ombudsman (DefenceForces) Act 2004 section 6(1)(c) - of the Defence Act 1954 section 114 - DFR A 15, Appendix AFootnote Number 2

Complaint Findings: Not upheld.

This Complainant submitted a complaint to ODFunder the provisions of section 6(1)(c) of the Acthaving been advised by the DF that his complaintwas outside the scope of the Redress of Wrongsprovisions. Section 6(1)(c) of the Act provides forthe making of a complaint to ODF by a servingmember of the Defence Forces concerning anaction if it has affected that member and wastaken by or on behalf of a civil servant of theDepartment of Defence.

The Complainant’s grievance related to adecision setting the closing date for acompetition for promotion. The decision as tothe closing date was apparently taken by a civilservant within the Department. This promotionarose because of a retirement and theComplainant maintained that he had a legitimateexpectation that the other member would retireby a given date because of the potential adversepension implications for that member in servingafter that time. He stated that the member inquestion had indicated his intention to retirebefore this date. The Complainant maintainedthat, arising from a Government decision toextend the grace period for retirement under theHaddington Road Agreement, the other membercontinued to serve until his retirement on agegrounds. The Complainant maintained that hehad been disadvantaged by this because, as aresult, the closing date that would be setrendered him ineligible to compete for thepromotion due to his age. A relevant birthdayhaving passed in the intervening period meant hewould not be in a position to complete therequired level of service in the vacated position.The Complainant stated that the particular dateappeared to have been set on the basis ofFootnote Number 2 of Appendix A to DFR A 15,which he stated was only applicable to

competitions for promotion to another rank andhad no relevance to the intended competition. By way of redress, the Complainant sought to beincluded in the particular intended competitionand to have the eligibility date for thecompetition in question set on the earlieranticipated date.As the intended promotion competition date wasthen fast approaching, the ODF sought an urgentresponse from the Department of Defence to thematters complained of and the Department wascommended for its prompt and comprehensiveresponse to that request.

After consideration of the relevant provisions ofDFR A 15, the ODF noted that the regulationwas silent on the manner in which a closing dateshould be determined and that reliance onfootnotes in the DFR for authority as to how aclosing date was to be set could not besatisfactory. The ODF also noted how, ratherstrangely, the Complainant nonetheless remainedeligible to compete for promotion to an evenhigher rank for a further year, notwithstandingthe passing of the key birthday in question. Italso appeared to be the case that to compete forthe even higher rank the Complainant would,firstly, have to compete for the lower rank, forwhich he was no longer actually eligible. Thisappeared to the ODF to be anomalous.

The Department stated that the DFR clearlyprovided that for a person to be eligible forpromotion to the particular rank they must, onthe closing date of the competition, have servedfor a set period in the rank of eligible candidatesand be able to serve a set period in the rankapplied for. The Department advised that thepolicy requirement was that a person shouldhave served a period in the lower rank, against

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which their potential for advancement could bemeasured, and have the capacity to serve aminimum period in the higher rank, duringwhich they could contribute to the strategicmission of the organisation. While the servicetime periods actually required were specified inthe DFR, the ODF found that it would be usefuland prudent to include full particulars of these orany further, policy requirements in the DFR.

The Department expressed a concern that in theabsence of a fixed procedure for setting the date,management could materially and arbitrarilyadjust the date in a manner which might includesome and exclude others. The Department alsostated that in consulting with the RepresentativeAssociation on the scheme, this was a specificrequirement on which both parties agreed. TheODF found that the agreed objectives in thisregard were fair and reasonable. Unfortunately,the arrangements at issue in this case allowed forthe possibility of such arbitrariness, which couldadversely affect potential candidate(s). Thepresent provisions of the DFR and the footnotesthereto permitted a degree of uncertainty andarbitrariness, which potential candidates couldnot predict until a vacancy actually occurred, ormust occur on age grounds. The ODFrecommended that the DFR should ensure thatsuch service criteria were clear and unambiguousin the interests of fairness and the avoidance ofarbitrariness. This was particularly so in thedetermination of a key date such as that at issuein this case. The ODF further recommended thatthe existing uncertainty or ambiguity be clarifiedby an appropriate amendment of the DFR itselfand not by reliance on an existing footnote orthe addition of a further footnote.

Having considered the complaint, the ODF foundthat there was no basis within the framework forpromotion on which the Complainant’s proposedclosing date could have been warranted orsustained.

The ODF further found that the Complainantdid not have a ‘legitimate expectation’, as thatphrase is defined by case law, of eligibility tocompete in the promotion competition. However,the ODF found that the fact that theComplainant, who had forty years’ service in the

Permanent Defence Force, was left in such anuncertain situation as he approached the finalyears of a long and successful career wasunsatisfactory. After forty years of service amember deserved a more considered approach to,what for the individual was a very important andperhaps final such opportunity for promotion.This was not, in the opinion of the ODF,reflective of good, fair or efficient HRmanagement or sound administration of anysuch promotion scheme.

The Department also raised a jurisdictionalconcern to the effect that “Promotion Schemesare a matter of policy in relation to terms andconditions of employment and that thedetermination of promotion policy and theprocedures therefor clearly fall outside the remitof the ODF”.

The ODF fully accepted that the determinationof Promotion Policy is outside of its remit.Promotion Schemes which as a matter of policyin relation to terms and conditions ofemployment, negotiated and agreed withRepresentative Associations pursuant to aconciliation and arbitration (C&A) scheme, arealso not within the remit of the ODF. However,such schemes must clearly be administered withinthe parameters of and not be inconsistent withthe aforementioned legal framework and once ithas been decided to hold a promotioncompetition pursuant to such a policy, themanner in which it is done must be in conformitywith the provisions of the DFR. The arbitrarinesswith which a decision could be made on a‘closing date’ for any promotion competition andthe imprecision in the DFR as currently draftedwith regard to when, how and by whom such a‘closing date’ could be decided as well as theearlier mentioned ambiguity associated with theservice period requirements, resulted in anundesirable, and in the opinion of the ODF,unnecessary degree of uncertainty with regard tomembers’ career expectations. Any sucharbitrariness could, in the opinion of the ODF, beconsidered to be ‘unreasonable’, ‘based onundesirable administrative practice’ or ‘contraryto fair or sound administration’.

The letter purporting to set the closing date for

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the competition, from its content, appearedclearly to have been an administrative actiontaken by a civil servant subsequent to the makingof a decision, by or on behalf of the Minister, tohold the competition at that time. While such adecision was, on that account, not reviewable, allsubsequent administrative actions pursuant tothe provisions of the DFR must, logically, bereviewable by the ODF to ensure that they werein conformity with the terms of the DFR, incircumstances where any such action affected acomplainant. Nonetheless, in the circumstances,the ODF limited its determinations with regardto this complaint to the administrative actions ofthe promotion competition in question havingregard to the existing statutory and regulatorypromotion framework.

The ODF found that the Complainant was notwronged by anything contained in the letterissued by the Department purporting to set aclosing date for the promotions competition. TheComplainant did not have a ‘legitimateexpectation’ of an earlier date. The ODF foundthat this complaint fell within its jurisdictiononly in so far as it concerned the alleged actionof a civil servant of the Department of Defence inrespect of an administrative act in the setting ofthe ‘closing date’ for the promotion competition. However, the functions of the ODF and itsoversight role clearly comprehend administrativeactions, those taken or not taken, as the case maybe, by both Departmental and Military officialsin that regard.

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Staffing

The staffing of the ODF consists of:

• Brian O’Neill, Head of Office• Michael O’Flaherty, Case Manager • Lauren O’Donovan, Administrative Assistant

Review of Internal Financial Controls

In common with other publicly-funded Officesthe ODF conducted a formal review of InternalFinancial Controls in 2015. This review has beenprovided to the Comptroller and AuditorGeneral. A comprehensive budgetary system is inoperation and expenditure trends are reviewedon a quarterly basis in association with theODF’s external accountants.

Data Protection

The Office of the ODF is registered with theData Protection Commissioner.It should also be noted that secrecy ofinformation provisions are applied to the ODFunder section 10 of the Ombudsman (DefenceForces) Act 2004 as follows:

10.— (1) The Ombudsman or a member of thestaff of the Ombudsman (including aninvestigation officer) shall not discloseany information, document, part of adocument or thing obtained by theOmbudsman or an investigation officerin the course of, or for the purpose of, apreliminary examination or aninvestigation under this Act except forthe purposes of—

CorporateAffairs

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(a) the preliminary examination or theinvestigation concerned,

(b) the making, in accordance with thisAct, of any statement, report ornotification on that preliminaryexamination or that investigation, or

(c) proceedings for an offence under theOfficial Secrets Act 1963 that is allegedto have been committed in respect ofinformation or a document, part of adocument or thing obtained by theOmbudsman or an investigation officerby virtue of this Act.

(2) The Ombudsman or a member of the staffof the Ombudsman (including aninvestigation officer) shall not be calledupon to give evidence in any proceedings,other than proceedings referred to insubsection (1)(c), of matters coming to hisor her knowledge in the course of apreliminary examination or aninvestigation under this Act.

(3) (a) The Minister may give notice inwriting to the Ombudsman, withrespect to any document, part of adocument, information or thingspecified in the notice, or any class ofdocument, part of a document,information or thing so specified, that,in the opinion of the Minister, thedisclosure (other than to theOmbudsman or a member of his orher staff including an investigationofficer) of that document, that part ofa document, that information or thatthing or of documents, parts of adocument, information or things ofthat class, would, for the reasonsstated in the notice, be prejudicial tothe public interest or to security.

(b) Where a notice is given under thissubsection, nothing in this Act shall beconstrued as authorising or requiringthe Ombudsman to communicate toany person or for any purpose anydocument, part of a document,information or thing specified in thenotice or any document, part of a

document, information or thing of aclass so specified.

(4) Where a notice is given under subsection(3)(a), the Ombudsman or a member ofthe staff of the Ombudsman (including aninvestigation officer) shall not discloseany—

(a) document, part of a document,information or thing specified in thenotice, or

(b) class of document, part of a document,information or thing specified in thenotice, to any person or for anypurpose and nothing in this Act shallbe construed as authorising orrequiring the Ombudsman or amember of the staff of theOmbudsman (including aninvestigation officer) to disclose to anyperson or for any purpose anythingreferred to in paragraph (a) or (b).

Bar Council of Ireland

The ODF is registered under the DirectProfessional Access Scheme of the Bar Council ofIreland. The ODF utilises the services of barristersto review case files in appropriate circumstances.

Health & Safety

The ODF has a Health & Safety Statement inplace. The Health & Safety Policy regarding thebuilding, in which the ODF is accommodated in, isprimarily the responsibility of the Department ofForeign Affairs and Trade.

Freedom of Information

Under the provisions of the Freedom ofInformation (FOI) Act 2014 individuals have aright to:

• Access records held by a GovernmentDepartment or certain public bodies, includingthe ODF;

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• Request correction of personal informationrelating to an individual held by a GovernmentDepartment or certain public bodies, includingthe ODF, where it is inaccurate, incomplete ormisleading;

• Obtain reasons for a decision made by aGovernment Department or certain publicbodies, including the ODF, where the decisionaffects an individual.

What records can I ask for under FOI?

Subject to the provisions of the Ombudsman(Defence Forces) Act 2004 detailed below, anindividual can ask for the following records heldby the ODF:

• Any records relating to an individualpersonally, whenever created;

• Any other records created since theestablishment of the ODF in December 2005.

A ‘record’ can be a paper document, informationheld electronically, printouts, maps, plans,microfilm, etc.

Information precluded under Section10 of the Ombudsman (DefenceForces) Act 2004

Section 10 deals with the secrecy of informationgathered by the ODF in relation to complaintsinvestigated or being investigated. It states:

10.— (1) The Ombudsman or a member of thestaff of the Ombudsman (including aninvestigation officer) shall not disclose anyinformation, document, part of adocument or thing obtained by theOmbudsman or an investigation officer inthe course of, or for the purpose of, apreliminary investigation or aninvestigation under this Act except for thepurposes of-

(a) the preliminary examination or theinvestigation concerned,

(b) the making, in accordance with thisAct, of any statement, report or

notification on that preliminaryexamination or that investigation, or

(c) proceedings for an offence under theOfficial Secrets Act 1963 that isalleged to have been committed inrespect of information or a document,part of a document or thing obtainedby the Ombudsman or aninvestigation officer by virtue of thisAct.”

In simple terms, the Freedom of Information Actapplies only to the administrative files held by theOmbudsman for the Defence Forces. Investigationfiles are not subject to the provisions of the FOIAct.

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Annual Report 2015

Ombudsman for the Defence Forces15 Lower Hatch StreetDublin 2, Ireland

T: +353 1 663 3222F: +353 1 663 3223W: www.odf.ie E: [email protected]