The High Court has found that Garda authorities acted unfairly and unreasonably by refusing to consider an officer’s appeal against his transfer from Blarney to Gurranabraher, after the transfer took effect too quickly for him to meet the appeal notice period.
In a judgment delivered on 12 November 2012, Ms Justice Iseult O’Malley said the officer was transferred within two days, making it impossible to give the three days’ notice required by the Garda Code. The court found it was reasonable for him to believe the transfer was temporary and that he acted promptly after learning it had been listed as permanent.
The transfer followed a domestic incident at the officer’s home in Ballincollig on 7 September 2009. Gardaí attended after a 999 call and took statements from the officer and his wife, whose accounts differed about how she was injured when a glass door broke. The court did not determine which account was true.
The Garda Síochána Ombudsman Commission investigated and reported that no misbehaviour or misconduct by the officer had been disclosed. The Director of Public Prosecutions concluded there was insufficient evidence to prosecute. The judgment records that GSOC described the initial transfer as appropriate and proportionate in the circumstances at the time.
The court traced conflicting accounts of whether the transfer was intended to be temporary or permanent. The officer, Inspector Gary McPolin and Assistant Commissioner K.G. Ludlow understood it to be pending the investigation. Chief Superintendent William Hayes said he intended it to be permanent but subject to review. Chief Superintendent Michael Finn later made a separate decision in March 2010 that the officer should remain at Gurranabraher, without notifying him.
The officer’s appeal was rejected as retrospective because it was lodged after the transfer. Justice O’Malley held that the short notice had deprived him of a fair chance to appeal and that he had been denied an opportunity to make his case against a permanent transfer. She said it was unnecessary to decide whether the reasons advanced for making the transfer permanent were justified, because those matters should have been considered in an appeal on the merits.
The judgment did not set out a final order. Justice O’Malley said she would hear the parties on the appropriate order.