The High Court has quashed a determination that a serving garda’s sick leave had been wrongly classified as an injury on duty, finding that management failed to explain what error had been made.
Mr Justice Coffey ruled on 20 April 2018 that the failure to describe or explain the alleged error breached fair procedures and natural justice. He extended the time for the judicial review challenge and made an order of certiorari quashing the determination made in or about 28 March 2017.
The order does not prevent the Garda Commissioner from correcting an actual error if it is properly explained. It also leaves the Commissioner free to review whether the certificate applies to periods of absence caused or contributed to by psychological illness predating 1 November 2016.
The applicant, Deming Gao, had been absent from work since 2 November 2016, after reporting work-related stress following verbal abuse by a colleague the previous day. The colleague was later disciplined. Gao applied to have his absence treated as an injury on duty, a classification that carried enhanced sick-leave benefits.
His divisional officer issued a certificate on 17 January 2017 stating there was no reason to believe the injury was due to Gao’s wilful default or negligence. His absence was then recorded as an injury on duty. After Gao made a formal bullying complaint on 13 February 2017, Garda management concluded in or about March that the certificate had been issued in error. The absence was reclassified as ordinary illness, backdated to 2 November 2016. Gao was told he had to repay €13,050.
The court said the certificate concerned the 1 November incident and that there was no evidence the divisional officer had doubted, when issuing it, that the injury arose from that incident. The later bullying complaints were relevant to the cause of Gao’s continuing absence, the judge said, but did not explain why the original certificate was erroneous. Letters referring to an error, an ongoing investigation or a possible future review did not identify what the error was.
The judge rejected Gao’s argument that an October 2017 decision by the HR Directorate executive director was the outcome of an appeal. No appeal process existed under the applicable code or directive, and the October decision merely confirmed the position that his absence should remain classified as ordinary illness pending the bullying investigation. The court held that decision was not amenable to judicial review.
The judgment did not decide whether Gao’s absence should ultimately be classified as an injury on duty. The court said the Commissioner could review the classification and, if an error had occurred, rectify it with an adequate explanation. It was to hear further submissions on the form of the order and any consequential orders.