John Barrett v The Commissioner for an Garda Síochána and The Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Ms. Justice Stack
• Judgment Date: 14 February 2022
• Neutral Citation: [2022] IEHC 86
• Court: High Court
• Docket Number: [Record No. 2020/ 5336 P]

Between

John Barrett

Plaintiff

and

The Commissioner for an Garda Síochána and The Minister for Justice and Equality

Defendants

[2022] IEHC 86

[Record No. 2020/ 5336 P]

THE HIGH COURT

Interlocutory relief – Protected disclosures – Disciplinary procedures – Plaintiff seeking interlocutory relief – Whether disciplinary procedures invoked against the plaintiff were connected with statements made by the plaintiff on earlier occasions which the plaintiff claimed were protected disclosures

Facts: The plaintiff, Mr Barrett, sought the following orders in the notice of motion: (i) restraining the defendants, the Commissioner for An Garda Síochána and the Minister for Justice and Equality, their respective servants or agents from taking any or any further steps whatsoever, in relation to, on foot of and/or in reliance upon the purported recommendation by the first defendant to the second defendant on or about 16 December, 2020 to immediately terminate the plaintiff’s employment; (ii) restraining the defendants, their respective servants or agents from taking any or any further steps whatsoever, including publishing of any statement, whether verbal or written, internally or externally concerning, in relation to, on foot of and/or in reliance upon the purported “relevant manager’s Report” of the Commissioner furnished to the plaintiff on or about 16 December, 2020; (iii) restraining the Minister from terminating the employment of the plaintiff; (iv) restraining the defendants, their respective servants or agents from taking any or any further steps whatsoever that may cause any or any further detriment, including professional reputational damage, to the plaintiff. The following reliefs were claimed in the plenary summons: (i) a declaration that one or more disclosures which the plaintiff made on or about 29 June and/or 1 August and/or 20 August, 2018 are “protected disclosures” within the meaning of s. 5 of the Protected Disclosures Act 2014, as amended; (ii) a declaration that, in breach of s. 6 and/or s. 8 of the 2014 Act, the Commissioner and/or the Minister, their respective servants or agents have and/or have attempted to limit and/or restrain the manner by which the plaintiff is entitled to have made one or more protected disclosures on those three dates; (iii) a declaration that, as a result of the plaintiff having made one or more protected disclosures on the three named dates, the Commissioner and/or the Minister, their respective servants or agents have caused “detriment” to the plaintiff, within the meaning of and/or in breach of s. 13 (3) of the 2014 Act; (iv) a declaration that the commencement and/or the maintenance of disciplinary proceedings against the plaintiff by the Commissioner, his servants or agents on or about 3 May, 2018 and/or 17 October, 2018, was in breach of contract, unlawful and/or in breach of the plaintiff’s right to natural constitutional justice; (v) a declaration that the suspension of the plaintiff by the second defendant on or about 25 October, 2018, and/or its continuance is unlawful, in breach of contract and/or in breach of the plaintiff’s right to natural and constitutional justice; (vi) an order restraining the Commissioner and/or the Minister, their respective servants or agents from causing any continued and/or further detriment to the plaintiff as a result of the plaintiff having made one or more protected disclosures; (vii) damages pursuant to s. 13 of the 2014 Act; (viii) damages for breach of contract and breach of duty to include damages for breach of statutory duty; (ix) damages for conspiracy; (x) damages for malicious falsehood. The usual claims for interest pursuant to the Courts Act, further or other relief, costs, and interim and/or interlocutory relief, were also included.

Held by the High Court (Stack J) that there was no evidence that the disciplinary procedures invoked against the plaintiff were connected with statements made by the plaintiff on earlier occasions which the plaintiff claimed were protected disclosures, and three letters which were material to the inclusion in the disciplinary investigation of further complaints against the plaintiff were not protected disclosures. Stack J held that there was no basis for granting an injunction to restrain those procedures on the basis that they constituted "detriment" within the meaning of s. 13 of the 2014 Act.

Stack J refused the application.

Application refused.

JUDGMENT of Ms. Justice Stack delivered on the 14th day of February, 2022.

Introduction

1 The plaintiff is employed as Executive Director, Human Resources and People Development in An Garda Síochána, and his appointment is subject to, inter alia, the Civil Service Regulation Acts 1956 to 2005. The plaintiff is a member of the Senior Leadership Team, reporting to the Chief Administrative Officer of the Gardaí.

2 The proceedings arise out of a formal disciplinary process initiated by the Commissioner pursuant to the Civil Service Disciplinary Code, provided for in Circular 19/2016 (“the 2016 Code”) on foot of a formal complaint made by Assistant Commissioner Fintan Fanning, who has since retired. This Code sets out the arrangements for dealing with disciplinary matters in the Civil Service and establishes a six step disciplinary procedure for civil servants, and was the Code by reference to which the disciplinary proceedings against the plaintiff, with which this application is concerned, were conducted.

3 The 2016 Code sets out the procedure to be commenced where concern has arisen, or an allegation has been made, that misconduct may have occurred on the part of a civil servant. Examples of misconduct and serious misconduct are provided in Appendix A to the 2016 Code.

4 Step 1 in the process is the commencement of the procedure by the “Relevant Manager”. In the case of the procedures applied to the plaintiff, the Commissioner acted as Relevant Manager, and the issue raised by the plaintiff in relation to this is discussed later in this judgment. While a complaint of misconduct had been made against the plaintiff prior to the appointment of the Commissioner on 3 September, 2018, the Commissioner added further complaints arising out of the sending by the plaintiff of letters dated 29 June, 2018, 1 August, 2018, and 20 August, 2018, to his predecessor, Acting Commissioner Ó Cualáin and to another member of the Senior Leadership Team. These additional complaints were added by letter from the Commissioner to the plaintiff dated 17 October 2018.

5 On 25 September, 2018, the Minister, on the recommendation of the Commissioner, suspended the plaintiff on full pay pending the determination of the disciplinary procedures.

6 Step 2 of the procedure is the factual investigation. In this case, the investigation was conducted by an independent senior counsel, Mr. Ó Braonáin S.C. (“the Investigator”). The Terms of Reference governing the matters to be investigated in this instance included competence to make findings as to whether the plaintiff was guilty of “serious misconduct” within the meaning of the 2016 Code. In the course of the investigation, the Commissioner gave evidence and was cross examined by counsel for the plaintiff. However, just before the plaintiff was due to give evidence, he withdrew from the investigation complaining that it was unlawful. The fact that the investigation had at that stage been ongoing for a period of approximately two years is an issue in the proceedings as the defendants say that the plaintiff is guilty of delay and acquiescence, such as to deprive him of relief.

7 The Investigator issued his findings in a written report to the Commissioner dated 9 November, 2020. These included a finding that the plaintiff was guilty of “ serious misconduct”. These were furnished to the plaintiff by the Commissioner under cover of letter dated 16 November, 2020, and the plaintiff was invited to a disciplinary meeting on 30 November, 2020, but the plaintiff failed to attend. Preparation for that meeting, the meeting itself, and the outcome of it, are steps 3, 4 and 5 of the procedure established by the 2016 Code.

8 The plaintiff having declined to attend the disciplinary meeting or to make any submissions on the findings of the Investigator, the Commissioner proceeded to consider the report of the Investigator without the benefit of the plaintiff's submissions, and drew up the Relevant Manager's Report in which he stated that, in light of the Investigator's findings, he could no longer repose trust and confidence in the plaintiff or have him as a member of the Senior Leadership Team and he recommended that the plaintiff be dismissed with immediate effect. This decision as to the appropriate disciplinary sanction was step 6 of the procedure. Thereafter, the procedure provides for internal and external appeals. The appeal relevant to the plaintiff was the appeal to the Civil Service Disciplinary Code Appeals Board (“the Appeals Board”), and this is discussed further below.

9 The plaintiff was informed of the outcome of the disciplinary meeting by letter dated 16 December, 2020 and furnished with a copy of the relevant Manager's Report recommending dismissal. The plaintiff was informed in this letter that he had a right of appeal from that recommendation which might be lodged with the Appeals Board within five working days from the date of that letter.

10 The plaintiff chose not to avail of his right of appeal pursuant to the 2016 Code. As a result, the next step is for the Minister to consider the recommendation of the Commissioner that the plaintiff be dismissed. The Minister is not bound by the recommendation and the plaintiff had the right to make representations to the Minister as to why the recommendation should not be accepted. The plaintiff has indicated that he does not intend to make any such representations.

11 I return to the disciplinary procedures in more...