Ex-soldier fails to have discharge overturned

A FORMER soldier with “an exemplary record” in the Defence Forces has lost her High Court challenge aimed at overturning her discharge as a result of failing fitness tests.

Sandra Dunne (28), Tullow Rd, Carlow, attached to the 2nd Eastern Brigade before her discharge in August 2009, had brought judicial review proceedings against the Minister for Defence aimed at quashing the discharge and securing her reinstatement.

In July 2000, Ms Dunne enlisted in the Defence Forces for five years. When that period expired in July 2005, she applied for a service extension but was not recommended because she failed a fitness test in May 2005. She became pregnant and was exempted during pregnancy from undergoing a fitness test. She gave birth in 2006.

She suffered post-natal depression and, while she returned to work in November 2006, was unable to cope. An Army psychiatrist prescribed leave with medication.

In January 2007, she was served with a health-related fitness assessment, having failed the earlier fitness test. Because her body mass index was beyond the limit permitted for soldiers to take fitness tests, she was not allowed to undergo a test then.

She was on sick leave again from April 2007 to July 2007 when she was told she would not be recommended for re-engagement. She appealed and was told her service would be extended to February 2008 to allow her to try to reach the required fitness standard.

Between January 2007 and February 2008, she reduced her weight from 95kg to 90kg but her body mass index remained above the maximum limit and she was not allowed to attempt a fitness test in February 2008. She appealed a decision not to recommend her for extension of service, her service was extended to January 2009 and she was served with another health-related fitness assessment.

Her application for a further extension of service was granted to March 2009 when she was told no further extension would be granted. She failed two fitness tests in March 2009 and was discharged in August.

In her action, Ms Dunne claimed breach of natural justice and fair procedures. She alleged breaches of the Defence Forces training instructions on several grounds, including alleged failure to give her a tailored fitness programme and adequate assistance.

She also alleged the instructions entitled her to eight weeks assisted training before being subject to a further fitness test, but she was not afforded that when subject to two tests in March 2009.

In her judgment, Ms Justice Elizabeth Dunne said the substantive issue in the case related to the circumstances in which a member of the Defence Forces may be discharged and the extent to which statutory provisions on discharge may be circumscribed by the training instructions.

She found the discretion of a commanding officer in relation to extending service could not be curtailed by training instructions, which were not a prescriptive set of rules for every case. In this case, there was no breach of natural justice or fair procedures.

The judge also noted Ms Dunne had “an exemplary record” in the Defence Forces and wanted to remain. She had suffered a number of unfortunate circumstances, including post-natal depression and being in hospital with pneumonia in January 2007.

However, over a significant period of time, Ms Dunne was given “every possible opportunity” and “every practical facility” to overcome her difficulties in relation to weight, fitness and body mass index, the judge said. She failed her first fitness test in 2005 but had served a further four years.

In those circumstances, even if there was a breach of fair procedures or natural justice, the judge said she would exercise her discretion to refuse a judicial review.