Complainant

Respondent

Anonymised Parties

A former Garda

An Garda Siochana.

Representatives

  In person

Mr James McDermott BL instructed by Aideen O’Brien CSSO.

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00053432-001

25/10/2022

The Complainant is a former member of An Garda Siochana, the Complainant was attested into An Garda Siochana on 8th December 2017 and resigned on 3rd May 2022.

This complaint was received by the Workplace Relations Commission on 25th October 2022.

The following is a letter sent by the Complainant to the Respondent in June 2022. The Complainant contends that this letter provides a comprehensive summary of his complaint.

The Respondent replied stating that as the Complainant is no longer a member of An Garda Siochana they do not have to explain or justify his complaint with any investigation or explanation. The letter is addressed to Garda Commissioner with a copy sent to the Minister of Justice.

Dear Commissioner, I am a former member of An Garda Síochána who resigned on 03rd May 2022. I am writing this letter to you to highlight the reasons for my resignation. I feel I had no choice but to resign and was effectively forced out of the job I loved and worked so hard to attain. I was attested on the 08th December 2017 and stationed at Store Street Garda Station for the duration of my time in An Garda Síochána. I was attached to Unit C core at the time, my supervisory Sergeants were Sgt CD and Sgt NG. I want to outline the timeline of events that led to my resignation. I met with my Superintendent on the 12th November 2021 along with my GRA representative to try to resolve the issues I had been experiencing on my unit. I initiated this meeting after failing to reach a resolution with my sergeants and liaising with the Employee Assistance Service.

Attached is a copy of the report I produced at this meeting: “Private and Confidential for Superintendent C” Garda W wishes to outline some matters he wishes to discuss in the scheduled meeting: On the 25th of October 2021, my mandatory rest day, at 15:04 I received a phone call from my unit sections sergeant, Sergeant NG. The conversation related to an assault incident that I attended and reported on that occurred on the 25th of October 2021 at 1:42am. PID XXXXXX  for reference. Sergeant G’s manner on the phone was immediately condescending and passive aggressive. He informed me that he told me the assault would get “media attention” and he has “Supers and Cigs” ringing him from everywhere about it. I believe he was making reference that the injured party was a GAA player for Mayo. He informed me that my report was “Shite” and that it was “noticed”. I wasn’t happy with the manner in which I was being spoken to and having only finished my nightshift was extremely tired. I apologised to Sergeant G if he felt the report wasn’t up to standard, but it did contain all the required details of the occurrence and was reported prior to my tour of duty ending at 5am. I firmly reminded Sergeant G that I had a lot of personal stuff to attend to on my days off and my wife was pregnant with our first child. I informed Sergeant G that I didn’t need him putting stress on me as I had enough going on. I said stress like this could bring my brain tumour back and I was worried about not being around for my child being born. This was not meant in the literal sense and was said owing to the tone of the conversation constructed by Sergeant G.

Clarity relating to my previous and current health will be outlined later in this report.

Sergeant G continued with a barrage of language, mainly using “shite” as a way of describing my report. I felt it necessary to terminate the call as it was upsetting. I was left feeling bemused and worried for the remainder of the day. My initial feeling was that this was a heated discussion between two adults, and it would be resolved when I returned to work the 29th of October 2021. Later that day I also received a phone call from Sergeant D relating to the assault incident on the 25th of October. She asked if I was available to come in on the 26th of October and complete a number of enquiries relating to the assault incident. I said I would, however I was in court that morning but would be available in the afternoon. We agreed I would contact her after court to see if I was still required. On the 26th of October 2021, I received a second phone call from Sergeant G that he was referring me to employee assistance and I would receive a phone call from SF on Thursday. After this call and after I had finished in court, I contacted Sergeant D to say I was available for enquiries into the assault. She informed me that everything was covered, and I wasn’t required.

I had no work-related contact on the 27th of October 2021. On Thursday, the 28th of October I received an email from the District Office that my CBD1 Driving assessment would be taking place on Tuesday the 2nd of November 2021 at Westmanstown. I contacted Sergeant D by text toascertain if this course was going ahead. Sergeant D responded by text to call her when suited. Shortly after this I phoned Sergeant D. I was informed by Sergeant D that I would not be attending the CBD1 training as I had been referred to the Chief Medical Officer. I asked her what she meant by the referral and what did it mean for my duties on the unit. She told me I could forget about driving and that they needed to establish if I was “fit to deal with the public”. This was the first time I was informed that a report had been sentto the Chief Medical Officer. I found this conversation confusing and deeply upsetting as there was no detail asto why the referral had been made. I was in complete shock. I believed this was relating to the assault incident and conversation with Sergeant G, but this all seemed excessive and unnecessary.

On the 28th of OctoberI had a brief phone call with S F from the Garda Employee Assistance Service but was unable to discuss in detail what had occurred. I returned to duty on the 29th of October 2021 at 7am. I was detailed forfiles and reliefs. I carried out work on my files before attending a court hearing. I returned to the station and carried out the unit reliefs including taking up duty as gaoler and attending to prisoners. Later in the tour I spoke withSergeant Drequestingacopyofthereferral madetotheCMO.IhadbeenadvisedtodosobyS F from The Employee Assistance Service and was informed I was entitled to a copy under GDPR regulations.Sergeant Dinformedmethatshedidnotmakethereferral andifIwantedacopyofthereport, Ishouldrequest itfromtheDistrict Office.Sergeant DismyPULSEandPALFsupervisor.Ilatersentthe request to the District Office via my work email, these correspondences are available if required but basically, I was informed to request the copy through the appropriate channels. I left work at 7pm no better informed of the situation and contents of the referral to the CMO. I found this deeply upsetting. I spoke to my wife who became increasingly distressed resulting in a difficult night’s sleep for her on the 29th of October 2021. I myself felt physically unwell and reported sick and unfit for duty. On the 30th and 31st of October I felt physically unwell and still unable to report fit for duty. I contacted my GP to make an appointment and following this consultation she certified me sick with a recommended further consultation prior to returning to duty.

Following further discussions with the Employee Assistance I became aware that Sergeant G referred me to the Chief Medical Officer as he believed I had told him my brain tumour was back. This was during the conversation outlined at the beginning of this report. I categorically deny ever saying this, as outlined I stated I was worried stress could bring it back. I was encouraged to contact Sergeant G and speak directly to him about the issue and clarify the matter as this appeared to be a misunderstanding.

On the 1st November 2021, I contacted Sergeant G by phone to clarify the misunderstanding. I almost immediately regretted doing this as the tone of the conversation quickly became dismissive and hostile. I firstly apologised about how the original phone call went, and then asked about details of the referral and if it could be withdrawn. He informed me he had a duty of care towards me and would not be withdrawing the referral. I pointed out that nobody had spoken to me or approached me to clarify anything or speak to me about this referral. This could have occurred when I returned to work on Friday the 29th of October 2021. He informed me that he was not obliged to inform me before aggressively stating “I’m not going to sit here and listen to you tell me how to do my job”. I was aware the conversation appeared to be on speaker phone and was uncomfortable by the direction it was going. That was the last contact I have had with either of my supervisors.

As I write this report I am still unaware of the contents or reasoning behind the referral to the Chief Medical Officer. I am also questioning the sincerity behind the referral as no approaches were made to me by any senior staff in Store Street to clarify my personal health, particularly as it was mistakenly reported I have a brain tumour. It was merely left open to my own interpretations that I am not be fit to deal with the public, however I was allowed to attend court and carry out gaoler duties on the 29th of October 2021. I missed an opportunity to complete CBD1 that would be considered progressive in my development within An Garda Síochána.

On the 10th of July 2016 following an emergency MRI scan, I was diagnosed with an 8cm Ependymoma. This was a large brain tumour. On the 11th of July 2016, I underwent emergency surgery as there was an immediate risk to my life. The surgery left me with a significant amount of physical injuries, including speech and movement of my arms and legs that required me to attend the National Rehabilitation Hospital. This trauma also took a significant toll on my mental health as my career prospects seemed diminished at the time and doctors could not guarantee a full recovery. I was on phase one of Garda Training in Templemore when this occurred. Through the assistance of friends, family and colleague’s I was able to fund private rehabilitation and over the course of the next 11 months I recovered fully to continue with my Garda training. I was deemed fit for duty by the Chief Medical Officer in early 2017 and returned to phase 1 training in The Garda College Templemore in May 2017. I required annual MRI scans until January 2021, and now it will be every two years.

I am acutely aware of how lucky I was at the time to survive such a major surgery. I am also like any person who goes through this kind of trauma, worried that it may someday return. I take certain steps in my life to ensure I remain in the best physical and mental condition possible. I am also due to become a father for the first time in January 2022, a prospect that didn’t seem realistic in 2016. I am genuinely questioning the sincerity of this referral as it has no grounding and stemmed from an irate conversation with a Sergeant on my unit. There was zero engagement to clarify my current health relating to my brain tumour re- occurring. I can clarify again, this is not the case and I never stated my tumour is back.

The personal treatment I have received over the last number of days has re-traumatised my wife and caused her deep distress. It has caused her concern about my career and ability to earn money to support her and our baby. I am seeking this meeting today for an intervention to occur so I can continue with my duties as normal. I am unsure at this point if I have confidence in rebuilding a working relationship with Sergeant G as all trust and understanding has diminished. I am seeking an informal resolution at this time so I can return to work in a positive manner.” During this meeting, Superintendent C empathised with my situation and assured me that he would “pave the way for me to return to work.” I left this meeting feeling confident and positive that there would be a resolution. I returned to work to conduct my normal duties. As the weeks progressed a number of things came to light. The first being that my colleagues in Store St. knew about the CMO referral that Sgt G made and the reasons behind it. This was a serious breach of my privacy and data protection as this information was in the public domain. On 3rd of January 2022, I became aware that there were upcoming CBD-1 driving courses. I spoke to my supervisory Sgt CD  who informed me that there were “no CBD-1 courses being allocated to Unit C’’ I later discovered that there were three other members on my unit nominated for this course ahead of me. This was contrary to the assurances that Superintendent Costello had given during our previous meeting.

The main reason for my resignation was attributed to the mistreatment that I received from my supervisors. I left the meeting in November 2021 with Superintendent C believing that the issues I had raised were going to be addressed and my morale was going to be restored. Another reason for resigning was that I had been stationed in Store St. since December 2017 and had applied for various courses and units throughout my service. I had been keen to upskill and engage in CPD, however, I was rarely afforded this opportunity. Frustratingly, no feedback was given on any of my applications. It was impossible to progress within the job and my morale was at an all-time low. I am unaware of any other sector where feedback or appraisal is not standard practice on a regular basis. I also feel that there is a bias in the selection process for various roles and that I was side-lined as a result of the previous negative interactions with my superiors.

Shockingly, I was denied the CBD-1 driving course despite having driven for over a year and a half on Chief Superintendent’s Permission throughout the Covid-19 Pandemic! I worked very hard to get back to training in An Garda Síochána and get back to full physical and emotional health after my illness in 2016. I was enthusiastic about my career and exceeded all the odds to resume training in Templemore. Throughout my whole training and probation period I never failed any academic or fitness assessments and was exemplary in my conduct and duties. I never faced my superiors for any disciplinary action. Moreover, I have serious grievances as to how the referral to the Chief Medical Officer was made without any consultation with me. The rationale of which was never explained. It feels as if the referral was done in haste and anger on the sergeant’s behalf. There was no linear protocol followed during the process, I still to this day am not clear about the exact reasons behind it.

Surely, in an era when GDPR is paramount in every facet of society, practices in An Garda Síochána would be no different? I do not believe best practice was carried out in this regard.

When I eventually received a copy of the referral there were a number of discrepancies surrounding it. After formally handing in my resignation, I received no communication from any of my superiors in Store St. questioning my decision to resign nor any persuasion to stay. This is astonishing as it is regularly published on the media about the need for more Garda resources! In my experience, management did not care and it was ‘easier’ for them to allow me to step down. There was no further contact from any member of management (which one would assume would be standard protocol) as to the reasons for resignation. No exit interview was conducted. I contacted SF from Garda Employee Assistance by text message a few days in advance of the meeting with Superintendent C (11th March), she returned my call on the morning of the meeting advising me to call her after, I telephoned her back on 14th March and there was no response. There has been no contact from EAS to date. In addition, I am still receiving phone calls from the Director of Public Prosecution’s, State Solicitor on my personal mobile phone regarding upcoming court cases. This is despite having conducted a handover of all necessary documentation (files, CCTV etc.) on my sergeant’s request prior to resignation. Proving again the incompetency of Garda management to effectively manage their resources. To summarise, the silence and inaction from management in Store Street and the Garda Employee Assistance service is utterly shocking. To this day, I am still deeply upset and frustrated that having spent so many years training and conducting a job I was so passionate about could end so abruptly without any wrongdoing on my part. It has profoundly affected both mine and my family’s emotional wellbeing. There are still so many unanswered questions as to the integrity of a sensitive referral made about me and the way in which my resignation was dealt with. I am determined to seek clarification on all aspects of the matter, and I look forward to hearing your response. Thank you for taking the time to read this letter. Yours sincerely,

PRELIMINARY OBJECTION

In the letter sent out by the Workplace Relations Commission on the 8th June 2023 notifying the parties of this hearing under the heading ‘Written Statements/Submissions’ it states at bullet point 4 that

Note: Submissions are required from the Complainant in Employment Equality and constructive dismissal cases, from the Respondent in all other Unfair Dismissal complaints, or when requested by an Adjudication Officer. (emphasis added)

In this case it appears that the Complainant has not filed his required submissions with the Workplace Relations Commission and has instead indicated that he simply intends to rely on the information provided in his Complaint Form.

Although not obliged to do so the Respondent wishes to file written submissions in this case but in preparing these submissions the Respondent does not know the exact nature of the case being made by the Complainant as he has not had the opportunity to read and consider legal submissions of the Complainant in advance of the hearing as would ordinarily be the case.

In the circumstances the Respondent can only make these replying submissions in general terms based on the limited information available and explicitly reserves the right to submit more detailed written submissions if the Complainant delivers his own submissions and/or completes his oral evidence to the Workplace Relations Commission.

CONSTRUCTIVE DISMISSAL

Strictly without prejudice to the foregoing, the Respondent submits as follows:

A Complainant alleging a constructive dismissal must get over a very high legal and evidential burden. In Murphy and Regan ‘Employment Law (Second Edition) the authors note that:

In constructive dismissal claims, because the employee has terminated his contract of employment, the fact of dismissal is in dispute. In cases of alleged constructive dismissal, the employee goes into evidence first and he bears the burden of proof as to dismissal. He must persuade an Adjudication Officer or the Labour Court that his resignation was not voluntary. [at para. 18.110]

Constructive dismissal is defined in Section 2 of the Unfair Dismissals Act as:

“the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer in circumstances in which because of the conduct of the employer, the employee was or would have been entitled or it was or would have been reasonable for the employee to terminate the contract of employment without giving prior notice of the termination to the employer”.

It is submitted that this provision requires the court to carry out an objective assessment of the reasonableness of the behaviour of the employer and the response of the employee to the behaviour complained of. Support for such an objective approach is to be found in the judgment of the Supreme Court in Berber v Dunnes Stores [2009] IESC 10 where Finnegan J held as follows:

“That being the history of interaction between the appellant and the respondent and looking at each event individually and at the events cumulatively, I am satisfied that the conduct of the appellant judged objectively was not such as to amount to a repudiation of the contract of employment. The conduct judged objectively did not evince an intention not to be bound by the contract of employment”.

In Western Excavating (ECC) Ltd v Sharp [1978] 2 WLR 344, Lord Denning MR described the reasonableness test as posing the question of whether the employer

“conductshimselforhisaffairssounreasonablythattheemployeecannot fairly be expected to put up with it any longer, [if so] the employee is justified in leaving”.

This passage is cited with approval by Redmond Dismissal Law in Ireland 2nd Edition at paragraph 19.07.

Accordingly, it is submitted that the onus of proof resting on the Complainant in a case such as this is a stringent one. It is necessary for him to demonstrate that his employer has behaved in a fashion which is objectively so unreasonable that no employee could reasonably be expected to tolerate the conduct complained of any longer.

In this case, it is submitted that there was simply no dismissal. Neither was there a constructive dismissal. The employment relationship between the Complainant and the Respondent was instead terminated by the voluntary resignation of the Complainant on the 17th April 2022 (later amended to 3rd May 2022 at the request of the Complainant to incorporate his leave entitlements). There was no oppressive behaviour of any kind by the Respondents that left the Complainant with no reasonable alternative but to resign. The decision to resign made by the Complainant was an entirely a personal decision made by him to take up an alternate employment opportunity elsewhere which he did less than two weeks later.

Failure to utilise Grievance Procedure.

In addition, in a constructive dismissal case it is well established that it is incumbent upon an employee to utilise any available grievance process to a conclusion before resorting to resignation. Authority for this proposition is to be found in Conway v Ulster Bank UD [1981] 474. This principle has recently been affirmed by the determination of the Labour Court in Caci Non-Life Limited v Daniela Paone where the Labour Court concluded as follows:

“It is well settled law that a complainant who is advancing a claim of constructive unfair dismissal under the act, must demonstrate that his or her employer has acted so unreasonably and/or committed a fundamental breach of contract such that it was not possible for that person to remain in their employment any longer. Whether or not this test has been satisfied on any particular case has to be considered from an objective perspective. Furthermore it is incumbent on an employee to avail himself or herself of the employer’s grievance procedure before resigning so as to put the employer on notice of the employee’s issues and to permit the employer an opportunity to address them”.

Here the Complainant did not make any use of the internal grievance procedures that were available to him. In particular, the Complainant did not make any attempt to use the ‘An Garda Siochana Disputes Resolution Procedures’ which has an entire section entitled ‘Individual Grievance Resolution Procedure’. This document also indicates that there are other specific areas where An Garda Siochana has in place policies and procedures for the management of certain employee issues. The failure of the Complainant to invoke any of these resolution procedures is consistent with the fact that he voluntarily resigned from the Respondent to take up employment elsewhere.

Strictly without prejudice to the foregoing it is submitted that the Complainant has not provided any evidence of loss to entitle him to compensation which is the only relief that he is seeking. On his ‘Workplace Relations Complaint Form’ when it comes to the question of redress the Complainant only selected a single option – ‘Compensation’. However, the Complainant has not provided any supporting documentation to show what financial losses, if any, have arisen out of his voluntary resignation from his employment with the Respondent. Such supporting evidence is important in any case under the Unfair Dismissals Act but particularly in a case like this one where compensation is the single relief being sought by the Complainant.

Remedy being sought by the Complainant.

This issue is of particular significance in this case as the Complainant indicates on his Complaint Form that he has taken up employment since his dismissal and such employment was taken up on the 16th May 2022 which is less than two weeks after his voluntary resignation from the Respondents. The Respondent is unaware of Complainant’s starting salary with his new employer but it is likely that the Complainant’s salary in his new job would be at least as high, and possibly considerably higher, than his salary with the Respondent. It is noteworthy that the Complainant has not, to date, provided any documentary proof of any financial loss suffered by him arising out of his resignation from his employment with the Respondent on which to base any claim for compensation which is the only relief being sought by him.

The version of events set out by the Complainant in his complaint form is not accepted by the Respondent. Factual disputes are properly a matter for evidence rather than legal submissions and the Respondent intends to call a number of witnesses at the hearing of this matter to deal with these factual disputes.

Respondent disputes in its entirety the version of events as set out by the Complainant in his Complaint form. This version of events simply does not set out a true or accurate picture. Subject to the permission of the Adjudication Officer, further oral submissions will be made on this point at the hearing of the matter.

For the avoidance of doubt, the suggestion made by the Complainant that he was the subject of a constructive dismissal is absolutely refuted in its entirety.

6.  CONCLUSION

Strictly without prejudice to the foregoing the Respondent concludes as follows:

         i.      It is submitted that the constructive dismissal claim advanced by the Complainant is misconceived in circumstances where there was no dismissal, nor was there a constructive dismissal. Instead the reality is that the Complainant’s employment with the Respondent was terminated by his voluntary resignation from his employment with the Respondent.

       ii.      Further, and without prejudice to the foregoing, it is submitted that the reasons for the Complainant’s resignation are not objectively reasonable and do not relate to any fundamental breach of contract on the part of his employer and do not come remotely close to satisfying the test for a constructive dismissal in Irish employment law.

     iii.      The Respondent will make oral submissions to demonstrate, if required, that the Respondent in fact, made various attempts to accommodate the Complainant. It is also clear that the Complainant made no attempt to invoke the internal grievance procedures of An Garda Siochana that were available to him. This failure is consistent with the fact that his employment with the Respondents was ended voluntarily by him to enable him to take up a different job elsewhere.

     iv.      In relation to the only redress being sought by the Complainant (compensation) there is no documentary or other evidence of any financial loss suffered by him arising as a consequence of his voluntary resignation from his employment with the Respondent. In the absence of such evidence, his claim for such redress simply cannot succeed.

       v.      For all of the reasons outlined above the Claimant’s case of constructive dismissal simply cannot succeed and ought to be dismissed in full.

If one is to read the letter sent by the Complainant to the Garda Commissioner, it becomes very clear what his desired outcome was:  There are still so many unanswered questions as to the integrity of a sensitive referral made about me and the way in which my resignation was dealt with…

The Complainant was not looking for financial compensation, he was looking for answers to unanswered questions he had. After hearing legal submissions from the representative of the Respondent those present attempted to answer the questions raised by the Complainant, I thank them for their efforts.

The representative for the Respondent has clearly stated the following:

In a constructive dismissal case it is well established that it is incumbent upon an employee to utilise any available grievance process to a conclusion before resorting to resignation. Authority for this proposition is to be found in Conway v Ulster Bank UD [1981] 474. This principle has recently been affirmed by the determination of the Labour Court in Caci Non-Life Limited v Daniela Paone where the Labour Court concluded as follows:

“It is well settled law that a complainant who is advancing a claim of constructive unfair dismissal under the act, must demonstrate that his or her employer has acted so unreasonably and/or committed a fundamental breach of contract such that it was not possible for that person to remain in their employment any longer. Whether or not this test has been satisfied on any particular case has to be considered from an objective perspective. Furthermore, it is incumbent on an employee to avail himself or herself of the employer’s grievance procedure before resigning so as to put the employer on notice of the employee’s issues and to permit the employer an opportunity to address them”.

I cannot overlook this point. In the instant case the failure to utilise a grievance procedure is fatal to the complaint. It is for this reason that I can find no alternative but to conclude that the complaint as presented under the Unfair Dismissals Act, 1977 is not well founded and therefore fails.

I can find no alternative but to conclude that the complaint as presented under the Unfair Dismissals Act, 1977 is not well founded and therefore fails.

Unfair Dismissals Act, 1977.