Richard Grogan on employment law: Garda chief’s threat to discipline strikers is an empty one
Employment law solicitor Richard Grogan of Richard Grogan & Associates Solicitors explains why the threat of disciplinary action against gardaí is unrealistic.
The Garda Commissioner Nóirín O’Sullivan has issued an order to gardaí to attend at work on Friday. There are some 10,500 GRA members.
If a garda does not follow an order, that garda is subject to the normal disciplinary processes, which ultimately can end in anything from a warning right up to dismissal.
It is administratively impossible to discipline 10,500 individuals. Each of them would have to have the full disciplinary process and the full appeal process gone through. Even at a rate of five disciplinary panels hearing two disciplinary matters each day, it would take nearly four and a half years to process the disciplinary actions. Taking it that each member would then be entitled to an appeal, this would take another four and a half years. The disciplinary process itself would tie up huge resources of senior gardaí. The threat of disciplinary action is therefore not a realistic option.
The Garda authorities cannot decide to make an example of a small number of gardaí. This is due to a decision in the High Court in the case of Bank of Ireland v Kelly, which was heard in 2015. In that case, a number of individuals had allegations made against them of similar misconduct. One of them only was investigated and dismissed. The High Court ordered that individual be reinstated because he had been treated differently from others who allegedly had been similarly at fault. So a small number of gardaí cannot be disciplined as an example, because this is not fair procedure and is unlawful.
There is a legal prohibition on gardaí going on strike, although this has never been tested. However, prosecuting gardaí under this law would clog up the court system, because for each garda there would need to be a full court hearing and possibly an appeal. The administrative headache in trying to do this makes it equally an unrealistic option.
There are some worrying industrial relations issues in relation to the current dispute. Any competent employment solicitor or industrial relations consultant would have advised against an employer, such as An Garda Síochána, issuing an order to a large number of employees without advising that employer that they would have to be prepared to carry that through to the disciplinary process.
An employer in this case would be told “do not issue it unless you are prepared to carry it out”. The threat of disciplinary action is an empty threat because it is impossible to carry out 10,400 disciplinary processes within any reasonable time scale. The whole matter of issuing this instruction is ludicrous.
It has simply been done for the purposes of being seen to do something. Everybody knows it is an unrealistic threat of disciplinary action and could not be implemented.
It is extremely worrying that in the middle of negotiations where matters are going to the Labour Court, a threat would be issued immediately in advance of matters going to the Labour Court. It is standard industrial practice that going to the Labour Court is for the purposes of trying to resolve a dispute. The basis of industrial relations cases is that those negotiations are done in good faith. It is standard practice that nothing is done that could jeopardise negotiations or increase tension. Certainly you do not issue any threats.
A further worrying issue is the cancellation of holidays. Where an employee has been granted time off for holidays, then it is not acceptable that any employer would cancel those holidays. Any garda who had a holiday approved and who did not turn up to work on Friday and was subsequently disciplined could have a claim under the Organisation of Working Time Act 1997 for penalisation, where there is unlimited jurisdiction to award compensation.
It is extremely unusual that any employer would issue an instruction that could be in breach of the Organisation of Working Time Act, particularly as that Act is health and safety legislation.
As an employment solicitor I find it extremely worrying that threats would be made against any group of workers. There are legal obligations on members of An Garda Síochána. They are fully aware of their legal obligations. We are towards the end of negotiations seeking to avert a strike. Issuing threats, particularly threats that everybody knows cannot be carried out, is unproductive. Equally it has the detrimental effect of undermining the authority of the Garda Commissioner if the GRA members do not follow her instructions.
- Richard Grogan is principal solicitor at Richard Grogan & Associates Solicitors. This article first appeared in The Irish Times.