Court of Appeal: Garda out of work since bullying and harassment complaint loses appeal
A former member of An Garda Síochána whose case against the Commissioner of An Garda Síochána was described as one of the saddest to come before the Court of Appeal since it was established, has lost her appeal against the order of the High Court dismissing her claim at the conclusion of her evidence.
Sympathising with the woman’s “sad and tragic” position, Ms Justice Mary Irvine found that all grounds of appeal raised by the woman as a lay litigant were without foundation.
Marie O’Reilly joined An Garda Síochána in 1994, and in September 2006 she was transferred to Manorhamilton Garda Station at her request.
In December 2009 she made a formal complaint, running to “some ninety pages” of bullying and harassment and sexual harassment against fifteen members of An Garda Síochána based at Ballymote and Manorhamilton Garda Stations.
Her complaint was investigated by a Chief Superintendent, and submitted to the Assistant Commissioner, however it was not upheld.
Describing the circumstances as “sad and tragic” Justice Irvine explained that Ms O’Reilly had no income since the 31st December 2009, and that the “great hardship and distress” of the circumstances surrounding the proceedings had the knock on effect of her home being repossessed.
In the High Court, Ms O’Reilly’s principal concern was that the hearing before the Board of Inquiry concerning her alleged breach of discipline within the meaning of the Garda Síochána (Discipline) Regulations 2007 would not take place until such time as she had possession of her Garda Personnel and Medical File.
Ms O’Reilly maintained that the Commissioner of An Garda Síochána had failed to investigate the complaints she had made in December 2009 and had impermissibly failed to transfer her to a Garda station where she would not be subjected to the impugned conduct. As such, Ms O’Reilly submitted that she was entitled to damages for breach of contract and the payment of her wages since 2008.
Ms O’Reilly also sought orders:
- restraining the Commissioner from proceeding with any inquiries under the Garda Síochána (Discipline) Regulations 2007 until such time as she had been provided with a medical and personnel file;
- directing that any such pending inquiries would be heard together;
- removing any mention of disciplinary proceedings from her personnel file.
By way of a preliminary objection, the Commissioner maintained that the Statement of Claim failed to disclose a reasonable cause of action.
The Commissioner denied breach of any legal duty, claimed full compliance with the Garda Síochána (Discipline) Regulations 2007; asserted that Ms O’Reilly’s complaint had been fully investigated; that Ms. O’Reilly had failed to engage with the Garda Occupational Health Service to facilitate her return to duty; and that the Court had no jurisdiction to consider any issues concerning the posting transfer request.
In April 2017, Justice O’Connor found favour with the Commissioner and dismissed the claim.
Court of Appeal
Appealing the High Court decision, Ms O’Reilly advanced 5 grounds of appeal:
- Objective bias due to the trial judge’s failure to disclose the fact that he was a member of the same Mental Health Tribunal/Commission as a psychiatrist who had provided a medical report in connection with the inquiry into her complaint of bullying and harassment
- Demonstrable bias due to the trial judge’s:
- Refusal to direct the production of certain CCTV footage which she maintains was material to her claim
- Refusal to stay all of the of the disciplinary proceedings pending against her, notwithstanding his knowledge of her appealing his decision to the Court of Appeal.
- Failure to take into account that he had been misled by counsel for the Commissioner.
- The trial judge erred in law in concluding that the evidence Ms O’Reilly adduced was inadequate to prove her case.
- That she was not afforded any of the legal protections provided for under the Protected Disclosures Act 2014.
- Because of 1-4 above there had been a miscarriage of justice.
Considering Bula Limited v. Tara Mines Limited (No. 6) 4 I.R. 412, Justice Irvine stated that the ground of objective bias must fail – and added that “even if Ms O’Reilly had produced an affidavit which established that the trial judge and had been members of the same Tribunal/Commission that would not have given rise to a valid claim of objective bias”.
On the CCTV footage, Justice Irvine sympathised with Ms O’Reilly as a lay litigant, and explained that this should have been the subject of an application for discovery.
Justice Irvine dismissed all grounds of appeal, and explained that it was “important for Ms O’Reilly to recognise that the appeal that she brought against the decision of the High Court judge was one which was extremely limited”, that she raised no grounds on any of the substantive issues, and therefore it was inappropriate for the Court of Appeal to engage with the substance of her claims before the High Court.
Furthermore, she did not appeal the inquiry into her complaint in 2009, nor did she challenge the fairness of the procedure adopted. As such, Justice Irvine said that she had “no further avenue by which she may pursue that particular complaint”
Dismissing Ms O’Reilly’s appeal, Justice Irvine reiterated that it was “indeed one of the saddest cases to come before this Court since it was established”.
- by Seosamh Gráinséir for Irish Legal News