Gao v The Commissioner of an Garda Síochána
| Jurisdiction | Ireland |
| Judge | Mr. Justice Coffey |
| Judgment Date | 20 April 2018 |
| Neutral Citation | [2018] IEHC 244 |
| Docket Number | [2017 No. 909 J.R.] |
| Court | High Court |
| Date | 20 April 2018 |
[2018] IEHC 244
THE HIGH COURT
Coffey J.
[2017 No. 909 J.R.]
Practice & Procedure – Certiorari – Judicial review – Sickness absence – O. 84. r. 23(3) of the Rules of the Superior Courts – Extension of time – S. 11.37 of the Garda Síochána Code
Facts: The applicant sought an order of certiorari for quashing the decision of the respondent for reclassification of his sickness absence from 'injury on duty' to 'ordinary sickness'. The applicant further sought an order for extending the period within which an application for leave to apply for judicial review might be made pursuant to o. 84. r. 23(3) of the Rules of the Superior Courts. The applicant had challenged both the decisions primarily on the basis of an alleged failure on the part of the respondent to give reasons for the impugned decisions. The respondent argued that no decision could be made on the classification of the applicant's sickness absence pending the completion of an investigation by the respondent of the applicant's complaints of bullying in the workplace. The respondent contended that such decisions were fully and properly explained to the applicant. The respondent argued that the impugned decisions were not amenable to judicial review as they were the rectification of a prior error. The respondent also submitted that the alleged refusal to restore the original classification was no more than a reiteration of the fact that the applicant's sickness absence classification must await the completion of an investigation into the applicant's complaints of bullying.
Mr. Justice Coffey made an order of certiorari and thus, quashed the determination made by the respondent to the effect that the Code 11.37 certificate issued by Chief Superintendent was issued in 'error'. The Court held that the aforesaid order was made without prejudice to the entitlement of the respondent to rectify any error that was made in issuance of the Code 11.37 certificate. The Court held that the failure of the respondent to explain the 'error' made by the Chief Superintendent amounted to a failure to comply with the constitutional requirement of fair procedures.
The applicant is a serving member of An Garda Síochána. It is common case that on 1st November, 2016 he was wrongfully subjected to verbal abuse by a colleague, who has since been disciplined. On 2nd November, 2016 the applicant reported unfit for duty citing work related stress arising from the incident of the previous day. He remains out of work but it would now appear that he attributes his work related stress and its severity to bullying in the workplace which is alleged to have occurred prior to the incident of 1st November, 2016 and of which he first made a formal complaint to the respondent on 13th February, 2017.
In order to avail of its enhanced benefits, the applicant on 14th November, 2016 applied to have his sickness absence classified as being due to an 'injury on duty' as opposed to 'ordinary illness'. On 17th January, 2017 the applicant's Divisional Officer issued a certificate pursuant to s. 11.37 of the Garda Síochána Code ('Code 11.37 certificate') with the result that the applicant's absence was recorded and treated as an 'injury on duty'. On 28th March, 2017 the respondent determined that the Code 11.37 certificate had been issued in error with the result that the applicant's injury was reclassified as 'ordinary sickness' with effect from 27th April, 2017 and backdated to 2nd November, 2016.
The applicant was not informed of the decision and only became aware of it in the course of a telephone conversation that he made to the respondent's Human Resources Directorate ('HRD') on 10th May, 2017. Thereafter he made numerous attempts to seek an explanation for the alleged error and purported to appeal the reclassification of the status of his sickness/absence. At the request of the Chief Medical Officer ('C.M.O.') the applicant's case was reviewed at a case conference on 28th August, 2017, arising from which the Executive Director of the HRD made a 'decision' on 11th October, 2017 that the applicant's sick leave should remain classified as 'ordinary illness'.
On 20th November, 2017 the applicant obtained leave to seek, inter alia, an order of certiorari quashing the reclassification of his sickness absence. As the application for leave to apply for judicial review of the said decision was not made within three months from the date when the grounds for the application first arose the applicant further seeks an order extending the period within which an application for leave to apply for judicial review may be made pursuant to O. 84. r. 23(3) of the Rules of the Superior Courts. The applicant also seeks an order of certiorari quashing such 'decision' as was made by the respondent on 11th October, 2017, which the applicant characterises as a 'decision refusing to restore the original classification of the applicant's injury.'
The applicant challenges both decisions primarily on the basis of an alleged failure on the part of the respondent to give reasons for the decisions which are impugned.
The respondent opposes the application and contends as follows:-
(1) that no decision has or can be made on the classification of the applicant's sickness absence pending the completion of an investigation by the respondent of the applicant's complaints of bullying in the workplace;
(2) that the impugned decisions are not amenable to judicial review by reason of the fact that the alleged reclassification of the applicant's sickness absence was no more than the rectification of a prior error and that the alleged refusal to restore the original classification was no more than a reiteration of the fact that his sickness absence classification must await completion of an investigation into the applicant's complaints of bullying;
(3) that such decisions as were made were fully and properly explained to the applicant.
Sick leave entitlements for all members of the Public Service, including members of An Garda Síochána, are regulated by the Public Service Management Sick Leave Regulations 2014 ('the Regulations'). The Regulations provide for a basic entitlement to a maximum of 92 days sick leave on full pay in a year, followed by a maximum of 91 days sick leave on half pay, subject to a maximum of 183 days paid sick leave in a rolling four year period.
The application of the Regulations to An Garda Síochána is governed by the An Garda Síochána Code ('the Code') as supplemented and amended by HQ Directive 139/2010 (1st December, 2010)('the Directive'). The Directive makes a distinction between 'injury on duty' and 'ordinary illness', the significance being that a member's absence due to 'injury on duty' will entitle him/her to sick leave with full pay together with premium payments for a period that exceeds the basic entitlements attaching to sickness absence due to 'ordinary illness'.
Section 11.37 of the Code sets out the manner in which a 'personal injury' is to be considered and provides as follows:-
'(1) If a member suffers personal injury, and is rendered non-effective or otherwise, a full report of the circumstances should be submitted immediately to the member's Divisional Officer. When non-effectiveness as a result of an injury exceeds 60 days in any period of 90 days, the report will be forwarded to Assistant Commissioner, Human Resource Management ['HRM']. A decision regarding culpability will be made locally by the Divisional Officer except in cases where:-
(a) The Divisional Officer is of the opinion that the injuries were due to wilful default or negligence on the part of the member.
(b) The Divisional Officer has a doubt about the matter. In such cases the file will be forwarded to the Assistant Commissioner, Human Resources Management for directions.'
The Directive provides for a marginal note to be made at s. 11.40 of the Code which provides for the classification of sickness absence as 'injury on duty' as follows:-
'Injury on Duty Classification:
Where there is any doubt that an injury on duty occurred, Divisional Officers should refer the matter to Assistant Commissioner, Human Resources Management who will seek the advises of the C.M.O. The C.M.O. will take into account all relevant information arriving at his/her advises.
A decision regarding injury on duty will be based on:
• A complete investigation filed on to the incident;
• Management views and recommendations;
• The assessment and opinions of the C.M.O.;
Ordinary illness/injury on duty
Where there is a doubt as to whether the member's sickness absence is due to ordinary illness or an injury on duty the member's absence will be treated on ordinary illness pending a decision of the classification of the injury and in particular the C.M.O.'s advice. If it is determined that the absence does relate to an injury on duty, the member's pay will be retrospectively adjusted as soon as practicable'.
The Directive provides for the making of a further marginal note at s. 11.37 of the Code which provides as follows:-
'Investigation
Where members report non-effective for duty as a result of injury on duty or work related stress, a thorough investigation should be carried out immediately and the outcome reported to the Assistant Commissioner Human Resources Management for the attention of the C.M.O. The member concerned shall be advised of the Employee Assistant Service Peer Support and any other support deemed necessary. Local management shall address the issues causing the member's stress.'
The applicant was born in China on 5th August, 1981. He is now a naturalised Irish citizen and married with an infant child....
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