High Court quashes ‘unfair’ decision of Garda Commissioner in transfer dispute

About this case:

• Judgment:
  External link

On the 5th June, 2012 the applicant, Sharon Maybury, was directed by the Chief Superintendent in Killarney Garda Station to take up duties in Tralee Garda Station on the following day, the 6th June, 2012.

The applicant did attend at Tralee Garda Station on the 6th June, 2012 but asserts that she did so as a matter of courtesy, not with a view to accepting the transfer, and as she so communicated to the Assistant Commissioner.

The applicant went on to appeal the transfer, to refer the matter to the Garda Commissioner, and to apply for a review by the Transfer Review Body.

She asserted that at each stage of review and appeal the decision of the relevant body came to its decision on an erroneous view that she was seeking to retrospectively appeal what had been a valid transfer.

The respondent argued that the applicant had agreed on the 4th May and again on the 5th June to transfer from Killarney to Tralee as part of a compromise reached with the assistance of her representative association, arising from so-called “performance issues”, and because she would be subject to a greater degree of supervision in Tralee Garda Station.

The respondent also argued that the application was not brought in time, as time began to run when the applicant was directed to transfer to Tralee on 5th June, and the application was not brought until 4th November 2013.

However, the Court found that it was the last decision by the Transfers Review Body which was being subjected to judicial review, and that had only been determined on 17th October 2013.

The applicant made three complaints against the Transfers Review Body: that its decision was premised on a wrong view of the law; that its process was tainted by bias; and that it failed to give reasons.

In relation to the first complaint, the applicant asserted that the Transfers Review Body had wrongly found that the Garda Síochána Code made no provision for retrospective review.

However, the Court found that this had not formed the basis of the Body’s decision, and therefore its decision was not tainted by an incorrect view of the law.

In relation to the second complaint, the applicant argued that the Transfers Review Body is tainted by bias in that Fintan Fanning, the Assistant Commissioner Human Resource Management, was involved in a number of stages in the review and appeal process.

It was asserted in those circumstances that the respondent has breached one of the fundamental keystones of fair procedure namely the rule of nemo iudex in causa sua.

However, the Court found that this argument was misplaced, as Garda Fanning’s role required him to engage with issues relating to the contract of employment of a member of the Force, and he merely acted as conduit to communicate the decisions and transmit paperwork to the relevant bodies.

As he did not make the decisions, there was no evidence of objective bias.

In relation to the third complaint, the Court noted that it was well established that a person whose interest is affected by a decision is entitled to reasons for that decision, and that the authoritative decision of the Supreme Court in Meadows v. Minister for Justice, Equality and Law Reform 2 I.R. 701 has been followed in a number of cases.

The Supreme Court in the later decision of Kelly v. An Garda Commissioner IESC 47 quashed the decision of the Garda disciplinary appeals board for want of reasons, and in his judgment, O’Donnell J. accepted a general position that “reasons are required as a matter of the general law” (para. 30).

It was found that the applicant was clearly affected by the decision of the Transfers Review Body, and the decision to transfer her was one that impacted on her daily life.

She was entitled as a matter of natural and constitutional justice to know the reason why her final appeal has failed and the Court considered that she succeeded on that ground alone, as the decision communicated to her by the letter of 17th of October, 2013 was so devoid of reasons as to give her no idea of the basis of that decision.

The Court then considered whether it could make a determination that the applicant was estopped from denying in the application that she agreed to the transfer.

The affidavit evidence of Chief Superintendent Patrick Sullivan was that in an attempt to move the applicant out of her probationary status, she had been offered confirmation as a member of the Force on the strict condition that she would agree to a transfer to Tralee Garda Station where an additional element of support and supervision would be available to her.

The exhibited minutes of the meeting of the 4th May, 2012 showed that a clear proposition was outlined to the applicant at that meeting that she would not be confirmed in her position were she to remain in Killarney.

The applicant put much of the Chief Superintendent’s evidence in issue, a conflict of evidence which the Court found impossible to resolve.

It was noted that it was not the function of the judicial review to determine whether the applicant willingly transferred to Tralee Garda Station, but to determine whether the process of transfer was one made in accordance with fair procedures.

Thus, the Court did not make a determination on that issue, but made a declaration that the decision communicated to the applicant on 17th of October, 2013 was contrary to fair procedures and in breach of natural and constitutional justice for failure to give reasons, and made an order of certiorari quashing that decision.

However, the Court refused to quash the primary decision to transfer the applicant from Killarney to Tralee Garda Station.