Background:

The Applicant is a sworn member of An Garda Síochána. On 15 March 2017, the Applicant was alleged in a complaint to have engaged in a sexual act while on duty and in the course of taking a statement of evidence from a woman, related to the arrest of that woman’s sister the prior day. As a result of this complaint, a Board of Inquiry was convened to investigate these allegations, pursuant to the Garda Síochána (Discipline) Regulations 2007. In September 2018, when the Board of inquiry met to hear the allegations, the Applicant admitted the facts as alleged. The Board of Inquiry completed its investigation and recommended to the Commissioner, inter alia, that the Applicant be required to retire or resign from the force. The Commissioner accepted this recommendation and made this decision.

However, the 2007 Regulations provide for an appeal mechanism, and the Applicant availed of this, making an appeal to an Appeal Board. The Appeal Board heard the case and decided the penalty imposed by the Board of Inquiry was disproportionate, instead substituting the requirement to retire or resign with a reduction of pay for four weeks. The 2007 Regulations obliged the Commissioner to abide by this decision, which he did. After doing so, however, the Commissioner then placed the Applicant on further suspension, and ultimately told the Applicant that the Commissioner intended to invoke his separate power under section 14 of the Garda Síochána Act 2005 to unilaterally dismiss the Applicant, notwithstanding the decision of the Appeal Board. The Applicant applied for judicial review, arguing that this decision was ultra vires and in violation of his constitutional right to fair procedures and to not be “twice vexed for one and the same reason”.

Outcome:

Faherty J (with Donnelly and Noonan JJ concurring) found the purported exercise of the Commissioner’s powers to unilaterally dismiss the Applicant under section 14 of the Garda Síochána Act 2005 was ultra vires and thus contrary to law. The Appeal Board had considered the impact of the Applicant’s continued service to public confidence in the service as part of their deliberations, and it was insufficient to claim that the Commissioner held a residual, absolute power to dismiss after the Applicant had gone through a formal process and was not required to resign or retire.

Practical Guidance for Employers:

An employee cannot be “twice vexed for one and the same reason” – if someone has been disciplined through a formal process, it is unfair to then punish them again outside that process, even if the decided discipline appears too lenient.

The full case is here:
https://www.courts.ie/view/judgments/9acc2212-d876-4dce-afd3-7e34f5f8a8f7/040d721c-6906-4d7d-8e5a-ded4b8b994c4/2023_IECA_266.pdf/pdf