Today’s article looks at Brian Canavan v The Commissioner of An Garda Siochana, a judicial review issued by a member of An Garda Siochana seeking to prevent An Garda Siochana from continuing a disciplinary investigation on the grounds of inordinate and inexcusable delay and seeking an order preventing An Garda Siochana from continuing to suspend him from working.

CASE NAME AND REFERENCE:
Brian Canavan v The Commissioner of An Garda Siochana [2015] IE HC 225

COURT OR TRIBUNAL:
High Court

JURISDICTION/SUBJECT MATTER:
Suspension, delay, internal disciplinary investigation.

DATE OF JUDGEMENT:
Baker J, 3rd May 2016

Background

Mr Canavan is a member of An Garda Siochana.  He returned to work on 9th May 2014 following an extended period of sick leave.

On 21st May 2014, Mr Canavan notified the Inspector at Pearse Street Garda Station of his wish to commence a grievance against two superior officers.  He indicated that he would provide the specific reasons and causes for the complaint on a date and time that would suit the Inspector.

Two days later the Applicant was contacted by the Inspector on Duty and notified that he was suspended immediately.  Mr Canavan has remained suspended from work since 23rd May 2014 to date on three monthly reviews.  The basis upon which he was suspended from duty includes an allegation that he failed to prosecute certain cases in 2012 and 2013.

It took in excess of one year to obtain clarity regarding the basis for suspension.  It ultimately transpired that Mr Canavan was being investigated for alleged breaches of criminal law and he attended a cautioned interview in relation to those allegations in May 2015.  A file was submitted to the DPP in October 2015 and in early January 2016, the DPP stated that the matters did not warrant prosecution.

Delay in Investigation and Continued Suspension

An Garda Siochana defended the delay in carrying out the disciplinary investigation and continued suspension on the basis that:-

1. The disciplinary inquiry was on hold pending the conclusion of the criminal investigation.
2. An Garda Siochana, through the Commissioner, has the authority to suspend a member from duty and to impose varying degrees of financial or other penalties on the employee.

High Court Decision

Suspension

The Court looked at the suspension first. It acknowledged the Supreme Court’s decision in Flynn .v. An Post [1987] IR 68 wherein it held that a suspension “should in all fairness be disposed of, either by reason of suspension or dismissing the employee, as soon as reasonably practicable”.

It noted the distinction between a suspension required to address an urgent issue, or a purely holding suspension, and a lengthier suspension, which would bring considerations such as fair procedure and unwarranted prejudice into play.

The Court agreed that the principles of natural or constitutional justice or fair procedure are not required in making the decision to invoke a holding suspension.  However, the Court felt that there is a significant difference between a holding suspension and an “open ended suspension” (which would be seen as a severe form of punishment). In such a scenario the employee is entitled to the benefit of procedural fairness.

In this case, Mr Canavan was suspended for almost two years. During that time he suffered a reduction in pay and a limitation on his ability to work to earn additional income between 9am and 5pm daily.

The Court was critical of the fact that the people who chose to invoke the suspension had failed to file any Replying Affidavits. The Court ultimately held that the balance for procedural fairness between employer and employee tilted such that “the requirements of justice require expedition in the conduct of the inquiry”.  Accordingly, the suspension had ceased to be a holding suspension and in the circumstances the principles of “fairness and due process” come to be engaged”.

In noting that none of the renewals of the suspensions provided to Mr Canavan contained any reason for why he was suspended, nor did it detail any reason why it was considered necessary, the Court held that the suspension was not valid and reinstated the employee to full pay and allowances.

For completeness, the Court did not grant the application for recovery of the lost salary in the two year intervening period and she felt that that was a matter that warranted the conclusion of the inquiry.

Delay in Disciplinary Investigation

Finally the Court considered Mr Canavan’s request to prevent the inquiry from continuing on the grounds of inordinate and inexcusable delay.

The Court referred to other cases in which the disciplinary inquiries have taken a significant length of time (Gillan v The Commissioner of An Garda Siochana took over five years and was not considered unreasonable or excessive in those particular circumstances).  The Court felt that a distinction could be made between a situation where an investigation had commenced and was progressing slowly, to that of a situation where the investigation had not started within a reasonable time frame.

In these circumstances it was clear that the criminal investigation commenced at the same time as the disciplinary investigation and so it was not “sufficiently egregious” to annul the inquiry.  In the circumstances she refused the relief sought by Mr Canavan to prohibit the inquiry.

Legal Review

1. While there is no requirement to notify or explain the reasons why a decision is made to impose a suspension, best practice is to ensure that an employee is provided with a detailed letter as soon as possible setting out the allegations against them and the reason why it is necessary to suspend the employee pending the outcome of an investigation.

1. A suspension should not be used as a form of punishment.  An investigation should proceed as soon as reasonably possible in order to arrive at a decision to lift the suspension or dismiss the employee.