There would have been disruption in the Department of Health had Ms Dolores Moran been appointed to a principal officer position over the heads of many others, it was claimed in the High Court yesterday.
A decision by the secretary-general to appoint Ms Moran, an assistant principal officer, to a PO post could have possibly resulted in industrial action, Ms Bernadette Cronin SC said.
Ms Cronin, for the Ministers for Health and Finance, was making closing submissions on the fifth day of judicial review proceedings taken by Ms Moran against both Ministers.
Ms Moran, of Temple Road, Dartry, Co Dublin, is seeking an order directing her appointment to the position of PO and claims she is entitled to such an appointment on foot of an agreement with Mr O'Dwyer of December 23rd, 1996.
In the context of the time when the promotion was being sought - when the Department was dealing with the hepatitis C crisis - such disruption would have been "catastrophic", counsel said.
Ms Moran, an assistant principal officer, and Mr Donal Devitt, assistant secretary, had virtually pursued the secretary-general, Mr Jerry O'Dwyer, on a daily basis regarding Ms Moran's promotion to PO.
But Mr O'Dwyer made no agreement that Ms Moran would be promoted within a certain time scale and she had misinterpreted a commitment from him to accelerate her promotion as an appointment, counsel said.
She said the management advisory committee of the Department and Mr O'Dwyer formed a collegiate management of the Department. Mr O'Dwyer could not go outside established procedures and promote Ms Moran over the heads of others.
The respondents deny Ms Moran's claims, and Mr O'Dwyer has denied reaching any agreement with Ms Moran that he would appoint her to the substantive post of PO. He has also denied his failure to promote her was the result of personal animus related to a conflict between evidence given by her and himself to the hepatitis C tribunal.
In closing submissions yesterday, Ms Fidelma Macken SC, for Ms Moran, said the Department's MAC, or its determinations, could not be in any way binding on the agreement between Ms Moran and Mr O'Dwyer.
If Mr O'Dwyer believed Ms Moran's appointment was subject to MAC, he was misdirecting himself, counsel submitted. When a civil servant held that position, and was on the promotional ladder, there was nothing in statutes to suggest the terms and conditions of promotion did not give rise to a contractual employment binding the minister.
If Mr O'Dwyer exercised a discretion to appoint Ms Moran, he could not later lawfully fetter it by abdicating that discretion to the MAC, Ms Macken argued.
Ms Macken said Ms Moran, on foot of the agreement of December 23rd, 1996, had a legitimate expectation that she was entitled to an acting-up allowance, an allowance which would place her on the promotional ladder. Ms Moran was claiming she was promised such an allowance by Mr O'Dwyer.
But the true nature of the allowance paid to Ms Moran, under the merit awards scheme, was "masked" in the manner in which it was paid because Ms Moran had already refused to be paid by means of a merit award, counsel submitted.
Ms Macken said a supernumerary PO post was sought by Mr O'Dwyer for Ms Moran, and sanction for that was secured. Mr O'Dwyer could not now say the post was no longer available, and Ms Moran was willing to take up such a post in the blood unit. The failure to appoint Ms Moran to a PO post was irrational and extreme.
In her submissions, Ms Cronin said Ms Moran was claiming she and Mr O'Dwyer had entered a legally binding contract on December 23rd, 1996, a time when the post to which Ms Moran sought promotion did not even exist. From Mr O'Dwyer's viewpoint, their meeting was simply a discussion.
She said Mr O'Dwyer had stretched himself beyond normal limits to give Ms Moran an allowance under the merit awards scheme which Ms Moran chose to see as an acting-up allowance. She could not expect the court to accept that she could not read her payslip.
The hearing is expected to conclude today.