The Garda Representative Association and Another -v- The Minister for Public Expenditure and Reform

• Jurisdiction: Ireland
• Judge: Kearns P.
• Judgment Date: 17 October 2014
• Neutral Citation: [2014] IEHC 457
• Docket Number: [2014 No. 199JR]
• Court: High Court
• Date: 17 October 2014

[2014] IEHC 457

THE HIGH COURT

[2014 No. 199JR]

BETWEEN

THE GARDA REPRESENTATIVE ASSOCIATION AND AMY BOURKE

APPLICANTS

AND

THE MINISTER FOR PUBLIC EXPENDITURE AND REFORM

RESPONDENT

An Garda Siochana – Public Service Management (Sick Leave) Regulations 2014 – Fair Procedure – Legitimate Expectation – Duty to Consult – Interpretation

Facts: The applicant sought a declaration that the Public Service Management (Sick Leave) Regulations 2014 (‘the Regulations’) should not apply to An Garda Siochana. The applicant contended that the inclusion of An Garda Siochana in the range of public service employees to be effected by the Regulations constituted a breach of fair procedures, the duty to consult, and the legitimate expectations of the applicant that certain procedural steps would be taken. The applicant submitted that the Respondent considered irrelevant information and failed to have regard to relevant information when deciding to include An Garda Siochana in the Regulations. They also contended that the Regulations were legally incoherent. The applicants challenged the applicability of the Regulations on five grounds:

a) Legitimate expectation;

The applicants argued they were led to believe they would have derogation from the Regulations and/or receive different treatment from other public servants. At the very least they expected the consultation process to continue and conclude before the Regulations applied to them. The court did not accept this contention. The court stated that the applicants were aware of the respondent’s intention to adopt a sick pay scheme across the public sector and furthermore were informed that it would include An Garda Siochana. The applicant’s claim based on legitimate expectation failed.

b) Failure to consult;

The applicants contended that the Respondent did not adequately consult with them prior to the Regulations being brought into force. The court did not accept this proposition as the applicant’s views had been articulated through various mediation and conciliation mechanisms over a substantial period of time. If the court was to uphold the applicant’s submissions as correct, the consultation would have continued until the applicants’ demands to be excluded from the process, or be treated differently, were met. In the courts view, such a fettering of the Minister’s power and duty to legislate was unjustifiable and could be seen as a breach of the separation of powers principle enumerated in Article 6 of the Constitution. The court held against the applicants on this aspect of the case.

c) Taking into account an irrelevant consideration or failing to take into account a relevant consideration;

The applicants claimed that the respondent considered irrelevant matters due to the intervention of the General Secretary of IMPACT and the Chairman of the Public Services Committee of the ICTU. The court reviewed emails relied upon by the applicants to determine whether anything improper, reprehensible or unlawful took place without their knowledge affecting the validity of the Ministers decision to bring them within the scope of the Regulations. The court was satisfied that the emails failed to substantiate the applicant’s suggestions. It was alleged that the Minister failed to consider the fact that An Garda Siochana a) engaged in shift work, (b) had no occupational injury scheme, and (c) the health concerns of the employee’s in An Garda Síochána. The court said this limb of the applicants must also fail.

d) Was inclusion of the applicants warranted by reference to the criteria enumerated at Section 58(B) of the Act?

It was suggested that the Minister failed to acknowledge or appreciate the differentiation between the Gardaí and other public servants for example the health difficulties facing its members and the fact they had no occupational injury scheme. The court was satisfied that the Minister did not fail to consider the need to protect the health of Garda members. Furthermore there was nothing in the legislation that required the Minister to provide the level of protection asserted by An Garda Siochana. The Minster was obliged to have regard to the factors set out in s. 58B(4) and there was no evidence that he failed to do so. S. 58B(4) did not impose an obligation to consider representations made by public sector workers to be exempted from any envisaged scheme. The applicants also alleged that the Ministers considerations under s. 58B(4) were flawed or relied upon a material mistake of fact as to the true nature, substance and effect of the sick-leave scheme. The court failed to see how any mistake of fact could be such as to render the Regulations irrational or capable of being set aside for that reason by the Court.

e) The Regulations are themselves incoherent.

It was suggested that Regulations 9 and/or 10 were legally incoherent. The applicants claimed that proper interpretation of the Regulations led to a completely inconsistent result. The respondent contended that the Regulations achieved their aim of reducing eligibility to absence due to sickness on full pay to a period of three months, followed by a further three months on half pay. The court agreed with the respondent and said that their interpretation of the Regulations accorded with the basic principles of statutory construction and purposeful interpretation.

Held by Kearns P: The court concluded that the applicants’ case resulted in a limited form of procedural relief that would defer the application of the Regulations to An Garda Siochana until a consultation process concluded. The court viewed this as tantamount to the imposition of a serious limitation on the power to legislate. The court did not believe that information arising from emails supported any contention that underhand or wrongful communications took place between the Secretary General of IMPACT and the respondent Minister. The court was concerned with the delay in the discovery of these email communications and made provision to hear any application in respect of the costs of those proceedings.

Reporter: LLJ

Kearns P.

JUDGMENT of Kearns P. delivered on the 17th day of October, 2014

1 The first named applicant is the Garda Representative Association (‘GRA’), a body established pursuant to the provisions of the Garda Síochána Acts 1923 to 1977 and the Garda Síochána (Associations) Regulations 1978, as amended, as continued in force by virtue of s.128 of the Garda Síochána Act 2005. The GRA represents rank and file members of An Garda Síochána, presently some 10,700, in all matters affecting welfare, efficiency, and conditions of employment. The second named applicant is a member of An Garda Síochána. The respondent is the Minister for Public Expenditure and Reform in the Department of Public Expenditure and Reform (‘DPER’).

2 The applicant seeks a declaration that the provisions of the Public Service Management (Sick Leave) Regulations 2014 ( S.I. 124 of 2014) (‘the Regulations’) should not at this stage apply to members of An Garda Síochána. The Regulations provide for the payment of remuneration during a period of sick leave on a basis or upon terms other than those effective, in place and in operation prior to the commencement date of the said Regulations in March, 2014. The applicant contends that the inclusion without differentiation of An Garda Síochána in the Regulations was in breach of fair procedures, the duty to consult, and the legitimate expectations of the applicant that certain procedural steps would be concluded before any question of including An Garda Síochána in the range of public service employees affected by the Regulations would occur. It is submitted that the respondent, in bringing forward the Regulations, considered irrelevant information and failed to have regard to relevant information when arriving at his decision to include An Garda Síochána in the Regulations. It is further submitted that the Regulations are legally incoherent.

BACKGROUND

3 The application is grounded on the affidavit of Mr. P.J. Stone, General Secretary of the applicant. Mr Stone states that, pursuant to the provisions of the Garda Síochána Acts, the GRA is prohibited from joining an umbrella organisation such as the Irish Congress of Trade Unions (‘ICTU’) and is therefore not party to any negotiations that ICTU conduct on behalf of their members in relation to matters such as salary and sick leave. It is submitted that the first named applicant is therefore the only body permitted by law to make and be recognised by the Minister for Justice and Equality and the Government as capable of making representations in respect of issues such as pay, pensions, or conditions of service of An Garda Síochána members with the rank of Garda.

4 On the 14th May, 2012 a briefing was held at the Department of Justice and Equality (‘DOJE’) with representatives of the applicant, the respondent, and the other Garda staff associations (namely the Association of Garda Sergeants and Inspectors, the Association of Garda Superintendents and the Association of Garda Chief Superintendents) in attendance. This meeting was said to be part of a consultative process with all staff associations in the public service in relation to proposals to change sick leave arrangements in the public sector. These proposals were apparently a response to the State’s obligations to the Troika in relation to cost saving. Ms. Louise McGirr, Principal Officer in the Department of Public Expenditure and Reform, in her first replying affidavit states that costs to the State associated with public service sick leave amounted to an estimated €500m in 2011 while Garda sick leave alone cost €27m in 2012. Mr. Stone contends however that this figure constitutes a “ gross over-estimate” and fails to have regard to the unique nature of police work...