ADJUDICATION OFFICER Recommendation on dispute under Industrial Relations Act 1969

Investigation Recommendation Reference:  IR - SC - 00002171

Parties:

Dispute:

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Date of Hearing:              09/05/2024

Procedure:

In accordance with Section 13 of the Industrial Relations Act 1969 (as amended) following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any information relevant to the dispute.

Background:

The dispute concerns the handling and outcome of a competition held in relation to a position of Sergeant-in-charge of a station.  A further dispute raised concerns the handling and outcome of the application in relation to the sick pay scheme arising from injury on duty.   In this case the Worker is referred to as ‘Complainant’ and the individuals and locations involved are not identified.

Summary of Workers Case:

The dispute concerns two issues: 1) Competition for a vacant post of Sergeant-in-charge in Station B and 2) the manner in which the Respondent has conducted itself in relation to his Code 11.37 application (for sick pay scheme when on sick leave from injury on duty) was fundamentally unfair, improper and in breach of protocol.

The vacant post 

In January 2019, another employee Sgt L left the role he was in and took up an acting role as Divisional Clerk of the Respondent. Thereon, the Sergeants of B Garda Station split his responsibilities as Sergeant in Charge (‘SIC’).

On 8 December 2020, the position of SIC, Station B became vacant on the promotion of L to the rank of Inspector (‘the post’).

On 13 May 2021, Principal Officer of the Respondent confirmed to the Chief Superintendent for the Region that a competition to backfill the vacancy for Sergeant in Charge, Station B could proceed and a reserve panel could be created for various posts including the post.

On 1 June 2021, a competition for the vacant SIC position was advertised by HRM of the Respondent. Same confirmed that the position was vacant (‘the competition’). Same confirmed that the competition was governed by the Commission for Public Service Appointments (‘CPSA’) Code of Practice.

By 2 July 2021, the Complainant had submitted an application for the post.

On 19 October 2021, Chief Superintendent for the Division, via MHRM of the Respondent, emailed Head of Talent Acquisition of the Respondent regarding the competition. Therein, he stated that “This division is not currently in a position to nominate a suitable interview board for the above competition”. No reason for this failure was proffered. The Complainant maintains this was the first act in a campaign of obstruction adopted by the Respondent to unfairly return Sergeant L to his former post despite the existence of an extant competition for that post.   

On 24 November 2021, Sergeant L returned to Station B Garda Station and immediately resumed the post. As of that date, he had been stationed away from Station B Garda Station and not performing the SIC role for 23 months. The Complainant understands that his return was precipitated by his refusal to be transferred to an inspectorate role in Letterkenny and being demoted to the rank of Sergeant.

On 2 December 2021, correspondence was forwarded on behalf of Chief Superintendent of HRM, to Chief Superintendent M, stating that: ‘Sergeant L should be returned to his previous role as Sergeant in Charge, Station B Garda Station. In the circumstances, the necessary liaison should take place with HRM Competitions Office to have the competition cancelled as the position advertised is no longer vacant.’ The Complainant maintains that, as the post had been vacated and advertised as vacant and open for competition by the Respondent, it was unfair and in breach of procedure to seek to unilaterally return Sergeant L to the post.

On 3 December 202, Superintendent D telephoned the Complainant informing him of the above-mentioned correspondence.

On 8 December 2021, Assistant Principal Officer of MHRM applied to the Head of Talent Acquisition to cancel the competition for the post as the post was “no longer vacant”.

On 22 December 2021, Superintendent D wrote to the Complainant, outlining the decision to appoint Sergeant L to the post. In response, the Complainant requested copies of correspondence in respect of this decision.

On 3rd January 2022, the Complainant met with Superintendent D. Therein, he highlighted the fact that there had been no transparency throughout the process and that the process had wronged all applicants for the post. Superintendent D agreed with same. Superintendent D showed the Complainant the email of 2 December 2021, but refused to give him a copy of same.

On 4 January 22, the Complainant made a request through local channels for a copy of all correspondence relating to the competition for the post. No such documentation was ever received by the Complainant who was subsequently required to make FOI requests to receive documentation regarding same.

On 18 January 2022, Superintendent D issued an updated list of roles and responsibilities for Sergeants at Station B Garda Station. The list detailed Sergeant L as being responsible for SIC duties.

On 8 February 2022, MHRM extended the closing date for a number of competitions, which were advertised at the same time as the competition for the post. Therein, there was no mention of the vacancy for post.

On 8 February 22, Chief Superintendent F issued an email regarding the competition for the post. Therein, he stated: “the key issue to clarify is whether there is an open competition for [the post] through competitions office? This competition can still proceed but the issue of who has or still can apply needs to be confirmed.”

On 10 February 2022, as his request for access to correspondence regarding the competition for the post had been ignored by the Respondent, an FOI was issued in relation to same.

On 4 March 2022, the Respondent’s response to this FOI was received by the Complainant. Thereon, the Complainant determined that a HR & PD Advisory Group Meeting had been scheduled for the 8 February 2022 with the Acting Executive Director of HR & PD and that the competition for the post was to be discussed at this meeting. The Complainant later learned that the discussion about the competition was taken off the meeting agenda.

On 07 March 2022, Sergeant M of Station B Garda Station wrote to the Superintendent on behalf of all applicants for the post asking if the competition was open or closed.

On 8 March 20 22, the competitions office of HRM responded, confirming that the “competition has not been closed by the competitions office”.

On 9 March 2022, HRM wrote to the HRPD Executive Director regarding the competition. Therein, it asserted that the competition did not fall under the remit of the HRM Divisional office.

On 10 March 2022, Sergeant M, acting on behalf of all applicants for the post, requested an update on the progress of the competition via email.

On 16 March 2022, Head of Talent Acquisition, stated that the competition was governed by the CPSA Code of Practice.

On 16 March 2022, following the return of correspondence from the Competitions Office which stated “the Competitions Office has not received further direction on this issue [of the competition for the post] to date”, Ms G advised that “All developments will be reported as they arise”. Despite same, the Complainant was not informed of developments in a timely fashion or in most instances at all. In fact, the majority of information received on the matter were obtained via FOI requests.

On 22 March 2022, acting on behalf of all applicants in the competition, Sergeant M issued a complaint regarding the competition with HR & PD pursuant to Section 8 the CPSA Code of Practice. Therein, he outlined that evident interference, contrary to Section 1.6 of the CPSA Code of Practice, had taken place during this competition, and requested the matter be forwarded to the CPSA for investigation.

On 4 April 2022, the CPSA wrote to Sergeant M stating that, as the post did not incur an increase in pay or allowance, it does not come under the remit of the CPSA Code of Practice.

On 22 May 2022, Sergeant M, acting on behalf of all applicants to the competition, requested an update on the progress of the competition via email.

On 26 May 2022, Sergeant M, acting on behalf of all applicants to the competition, requested an update on the progress of the competition via email.

On 31 May 2022, as it was nearing 6 months since Sergeant L’s improper resumption of the post, the Complainant lodged a complaint with the WRC pursuant to section 13 of the Industrial Relations Act, 1963. This investigation into this dispute was subsequently objected to by the Respondent.

On 31 May 2022, in response to the Complainant’s solicitor informing him of same, Chief Superintendent F wrote to him confirming that: “the Competitions Office will be scheduling interviews for [the post] in due course”

On 29 July 22, Ms K of the Respondent’s HRM Competition Office, wrote to Sergeant M, confirming that the Competitions Office had “directed” MHRM to “proceed with interviews for the vacancy as soon as possible”.

On 29 July 2022, Ms K wrote to MHRM stating ‘HR&PD senior management have instructed that the competition for one (1) Sergeant in Charge, Station B Garda Station, M Division be completed as per procedure… While members have the right to revert in rank, they are not entitled to a previous position once that position has been advertised as vacant and applications have been received. The candidates for this vacancy should now be interviewed and the successful applicant assigned at the earliest possible date. Please submit the Division’s interview board nominations, or alternatively, this office will be happy to source an interview board on your behalf’. The Complainant maintains that the contents of this email are unequivocal and the Complainant’s assertion that the unilateral return of Sergeant L to the role was unfair, incorrect and in breach of procedure. This correspondence denotes clear instruction to MHRM to proceed with the competition for the post. These instructions were not acted upon promptly, as they should have been, or, ultimately, at all.

On 7 September 2022, the interview board for the competition for the post was approved. This information was not made known to the Complainant; however, he discovered same following an FOI request.

On 22 September 2022, conscious of the Respondent’s failure to contact the applicant regarding the competition despite explicit instructions from the Competitions Office of HRM, Sergeant M wrote to the Competitions Office on behalf of himself and the applicant seeking their assistance in relation to the appointment of an interview board. In response, Sergeant M was advised by the Divisional Office that the matter had been forwarded to MHRM for the attention of Ms G.

On 23 September 2022, MHRM wrote to Mr M stating they were “seeking the appointment of an interview board”. This was the first that the Complainant had heard about MHRM appointing an interview board as no correspondence had been received other than that from the Competitions Office on 29 July 2022. Same amounted to an 8 week delay and demonstrated that MHRM had little or no regard for the integrity of the competition, which by this stage had been mired with delay after delay.

On 11 October 2022, MHRM wrote to the Complainant issuing him with an interview date of 20 October 2022 in respect of the competition for the post along with details of the interview board.

On 20 October 2022, the complainant was interviewed and subsequently, HRM was informed that the Complainant was the successful candidate in the competition for the post. Given that permission to run the competition was given to MHRM on 31 May 2021, same amounted to an inexcusable delay.

On 20 November 22, the Complainant wrote to Superintendent W requesting that the results of the interview be made known to him without further delay. In response, Superintendent W stated that he would speak with Chief Superintendent M about same and that he was the only one who could move the Competitions Office along on the matter. He agreed with the Complainant that it was ridiculous that he had not yet been informed of the outcome of the competition.

On 25 November 2022, the Complainant attended with his GP with symptoms of stress and anxiety brought about by this process. He was duly issued with a sick cert.

On 6 December 2022, the official result of the competition was issued from the Competitions Office. It stated that the Complainant was the successful candidate and that ‘there is a five (5) year tenure in respect of this position’. The correspondence further stated “The panel will be in place for a maximum of two years from the date on which it is created”. The Complainant maintains that same implied that he was to take up the post with Sergeant M, as the only other candidate for the post, to be added to the panel. Same is in line with the application form for the role as originally advertised. The Complainant’s success at interview was ultimately not made known to him until the 14 December 2023, a further inexcusable delay of 8 days.

On 7 December 2022, Superintendent W contacted the Complainant by phone and asked if there was anything he could do for him. The Complainant requested that he obtain the interview results. The Superintendent asked the Complainant who would tell Sergeant L to vacate his position. The Superintendent agreed that it was “disgraceful” the way the competition had been handled and the way in which the applicants for the role had been treated.

On 8 December 2022, Superintendent W forwarded correspondence to the Chief Superintendent of C stating that the Complainant and Sergeant M were “absent from duty as a result of work-related stress illness” and requesting that “an investigation is conducted as per agreed procedures where work related stress is the illness absence caused”. Superintendent W further requested, “that the results of interview on 20th October 2022 are immediately communicated to (the Complainant) and Sergeant M”.

On 9 December 2022, MHRM wrote to the Competitions Office requesting further instruction in relation to “which Sergeant in Charge is to be appointed to the role”, given the fact that the Complainant was successful in the competition for the role and that Sergeant L was currently occupying the role. The Complainant maintains that MHRM had already unequivocally instructed them as to the Complainant’s appointment to the role as the successful candidate of the competition.

On 13 December 2022, Chief Superintendent M informed the Complainant of his success in the competition, some eight weeks after the interview date. Same amounted to a further inexcusable delay in this process. The contents of his notification should be compared with original notification of the outcome of the competition on 6 December 2022. The more recent notification does not refer to the tenure of office of the position of the role and states that ‘this panel will be in place for a period of 2 years’. This notification is in contrast to the correspondence issued by HRM on 6 December 2022 and appears to incorrectly place the Complainant on a panel. This demonstrates the level of intent by entities within the Respondent, to disrupt and interfere with the competition process and its outcome to ensure Sergeant L retained his role in the post. The Complainant maintains that the correct course of action following competition was that one candidate should have been appointed to the post, and the unsuccessful candidate should have been placed on the panel for 2 years and that Sergeant L vacate the post.

On 15 December 2022, Superintendent W contacted the Complainant to inform him that he had submitted a Code 11.37 application in relation to the Complainant’s sick leave on his behalf. Code 11.37 applications relate to application for access to a paid sick leave scheme in relation to medically certified absences from work caused by an injury sustained while on duty.

On 24 January 2023, Solicitors acting for and instructed by the Complainant, wrote to Chief Superintendent M querying the results of the competition. The letter called on Chief Superintendent M to appoint the Complainant to the post in accordance with the instructions of the 29 July 2022. No substantive response was received in reply to this letter.

On 18 May 2023, the Complainant wrote to MHRM seeking answers to the questions regarding the delay in the competition, the appointment to the role, the failure of HRM to comply with directions and a decision on his Code 11.37 application. To date, the Complainant has not received a substantive reply to same.

On 26 June 2023, the Complainant wrote to Superintendent W, stating:

With reference to the above I wish to report that on this date I am requesting that An Garda Síochána’s Dispute Resolution Procedures are initiated as per HQ Directive No. 3/2020. The matters of concern raised by the Sergeant (including, but not limited to, the contents of (the Complainant’s) email of 18th May 2023 below, email of 22nd December 2021, and email of 4th January 2022) to Superintendent’s office Station B touching on all well-documented aspects of the competition for the role of Sergeant In Charge, Station B and the installation of another Sergeant to the role of Sergeant In Charge, despite (the Complainant) being successful in the competition have not been addressed. (the Complainant) will respectfully submit Form ERB1 in course if the matters of concern raised by him to date cannot be informally addressed. Thereafter, the Complainant received an acknowledgement from MHR; however, no further response was received.

On 16 August 2023, the Complainant applied for the following documents via Superintendent, Station B: a) The report of the Chief Medical Officer dated 24 January 2023; b) The report from Chief Superintendent M dated 16 May 2023; c) The reports from Inspector M dated 21 February 2023 and 31 March 2023.

On 13 September 2023, the Complainant met with Superintendent B and informed him that he was submitting Form ERB1 in relation to his internal complaint regarding these matters.

On 14 September 2023, the Complainant submitted Form ERB1 to the Respondent.

On 10 October 2023, Chief Superintendent M wrote to the Complainant, denying him access to the documentation requested on the 16 August 2023.

On 11 October 2023, the Complainant was forced to make a further FOI request for the documents he had requested on 16 August 2023.

On 17 October 2023, the Complainant met with Chief Superintendent R at Stage 1 of the Dispute Resolution Process, presenting him with the contents of his report and associated exhibits. Following the meeting Superintendent R stated that he was going on holidays for 2 weeks and would need a further 2 weeks to consider the matter. The Complainant informed Chief Superintendent R that he was unhappy with this further delay, considering that Form ERB1 had been submitted on 14 September 2023. The Complainant pointed out that there were timelines incorporated into the Dispute Resolution Process.

On 24 October 2023, the Complainant received a ‘schedule of records and HRM Records’ from the FOI office in relation to his FOI request. In this heavily redacted FOI response, Chief Superintendent M, in his report of 16 May 2023, states that the competition was completed as per the instructions of Head of Talent Acquisition dated 29 July 2023. However, it makes no reference to the remaining important and very relevant contents of that document. Neither does it make reference to the entire contents of correspondence from the principal officer HRM dated 06 December 23. The Complainant maintains that this report is lacking in important and necessary detail and is extremely misleading. The report goes on to imply that the Complainant’s application pursuant to code 11.37 stems from an ‘unfavourable outcome’ in a competition, completely ignoring all that went on before the outcome was ever made known to the Sergeant.

On 24 November 2023, Chief Superintendent R issued his decision on stage one of the Dispute Resolution Process. The Complainant maintains that this unfavourable decision was based on an ‘interpretation’ by Chief Superintendent R, a flawed and misleading response from Chief Superintendent M and an incorrect and misleading response from Chief Superintendent F. There is an indication by senior ranks within the Respondent that the competition was one to create a ‘panel’ to fill future vacancies. This was never the case. It is certain that the competition was advertised to fill a ‘vacancy’. The Complainant was never informed that he was being interviewed with a view to joining a ‘panel’. The idea of a ‘panel’ was construed as an attempt to camouflage a flawed procedure and to ensure Sergeant L’s continued performance of the role.

On 14 December 2023, as part of stage 2 of the internal dispute resolution process, the Complainant attended a meeting with Assistant Commissioner R.

On 22 December 2023, Assistant Commissioner R issued a decision following stage 2 of the Dispute Resolution Process refusing to uphold the Complainant’s complaint.

On 28 December 2023, the Complainant requested that the internal dispute be moved to the next stage. This request was acknowledged by Industrial Relations Officer Mr H on that date.

On 28 January 2024 having not received any further direct correspondence from Mr. H or from senior ranks within the Respondent touching on the internal dispute resolution process, the Complainant submitted this complaint to the WRC.

LEGAL BASIS FOR CLAIM

Preliminary Issue: the fact of a trade dispute

In its submission to the WRC, the Respondent has contended that these issues to not amount to a trade dispute for the purposes of section 13 of the Industrial Relations Act, 1969 and section 23(1B)(e) of the Industrial Relations Act 1990. This is a fundamentally misconceived assertion.

Section 23(1B)(e) states that, in relation to members of AGS, ‘a reference to a trade dispute shall be read as a reference to any dispute or difference between members of [AGS] and the Garda Commissioner that is connected with the appointment or non-appointment of any such member, or with the terms and conditions on which such members serve’.

The current dispute before the WRC relate to the conduct of an internal competition for a vacant post and the Complainant’s eligibility for a paid sick leave entitlement. As such, they self-evidently relate to the terms and conditions of the Complainant’s service vis-à-vis promotion and sick leave entitlements and protocols.

The competition issue

The Complainant maintains the manner in which the Respondent has conducted itself in in its competition for and placement of the role is fundamentally unfair, improper and in breach of protocol as follows:

1. a) The Respondent wilfully or negligently described the CPSA Code of Practice being applicable to the competition; when same was, in fact not. Same significantly delayed and impaired the Complainant’s ability to pursue this matter;
2. b) Contrary to explicit instructions from the Respondent’s Competition Office, Sergeant L was improperly returned to the role despite having vacated same, the vacancy for the role being advertised and applications being received. For the avoidance of doubt, it is reiterated that Ms K of the Respondent’s Competition Office explicitly stated to MHRM on 29 July 2022:

‘While members have the right to revert in rank, they are not entitled to a previous position once that position has been advertised as vacant and applications have been received. The candidates for this vacancy should now be interviewed and the successful applicant assigned at the earliest possible date. Please submit the Division’s interview board nominations, or alternatively, this office will be happy to source an interview board on your behalf’

1. c) Contrary to explicit instructions from the Respondent’s Competition Office, the Respondent initially sought to close the competition to allow Sergeant L to improperly remain in the role. The quote of Ms K of 29 July 2022 refers.

The Respondent ultimately proceeded with this competition, it only did so on foot of the Complainant’s referral of a trade dispute to the WRC, to which it subsequently objected. Same further delayed and impaired the Complainant’s ability to pursue this matter;

1. d) The Respondent repeatedly and extensively delayed the competition process and outcome;
2. e) Having eventually reached a conclusion to the competition process, the Respondent sought to disrupt and interfere in the outcome of same to ensure Sergeant L’s continued placement in the role through, inter alia, unilaterally altering the vacancy as advertised and placing the Complainant on a sham panel;
3. f) Despite repeated request, the Respondent repeatedly refused to furnish the Complainant with documentation regarding the conduct of this competition, severely delaying and impairing his ability to pursue the matter;
4. g) Having initiated a stage 1 internal complaint to pursue this matter, the Respondent delayed in its processing of same; and
5. h) Having appealed the stage 2 outcome of his internal complaint to a stage 3 level, the Respondent failed to arrange for, conduct or conclude any stage 3 investigation at all.

The Code 11.37 issue

The Complainant maintains the manner in which the Respondent has conducted itself in relation to his Code 11.37 application was fundamentally unfair, improper and in breach of protocol as follows:

1. a) The Respondent failed to inform the Complainant of medical documentation required by its CMO, resulting in the CMO’s investigation into his application not being progressed and ultimately being unsuccessful. There was no consultation between the CMO and the Complainant.
2. b) Despite the Complainant’s request, the Respondent failed to consult with him regarding his application;
3. c) Despite the Complainant’s request, the Respondent failed to provide him with supports in relation to his application;
4. d) The Respondent repeatedly and extensively delayed in investigating and reaching an outcome in relation to this application;
5. e) Despite repeated request, the Respondent repeatedly refused to furnish the Complainant with documentation regarding the conduct of this assessment.
6. f) The findings of Ms C were based on an inaccurate report from Chief Superintendent M.

RELIEF SOUGHT / QUANTUM

The Complainant is seeking redress in the form of a recommendation setting forth an opinion as to the merits of the dispute, a just and equitable course of action to resolve same and just and equitable compensation.

Summary of Employer’s Case:

On 1st June 2021 the position of Sergeant-in-charge was advertised.  This position is in effect senior Station Sergeant and carries additional administrative responsibilities but no financial benefit.  It was wrongly set out in the advertisement that the CPSA Code of Practice applied to the competition.  The position had become vacant on the promotion of the holder (Sgt L) to the rank of Inspector.   On 19th November 2021 an application to revert from the rank was acceded to and he was returned to the role of SIC.

On 8th March 2022 the Competitions Office confirmed that the competition was not closed and on 31st May 2022 that interviews would be held.  The interview was held on 20th October 2022 and the Complainant was advised of the outcome of the competition on 13th December 2022.

 Preliminary Arguments – Trade Dispute?

Section 13 (3) of the Industrial Relations Act 1969 requires that an Adjudication Officer (provided that the conditions set out in the subsection are met) investigates a ‘trade dispute’ referred and empowers him or her to ‘make a recommendation to the parties to the dispute’.

Section 23(1B)(e) of the Industrial Relations Act 1990 which provides in relation to members of AGS,

‘a reference to a trade dispute shall be read as a reference to any dispute or difference between members of [AGS] and the Garda Commissioner that is connected with the appointment or non-appointment of any such member, or with the terms and conditions on which such members serve’.

It should be common ground that this aspect of the present dispute does not concern the appointment of the Complainant and it is submitted neither does it concern the ‘terms and conditions on which such members serve’.  It does not therefore fall within the statutory definition of trade dispute.  It is further submitted that the advertisement of 1 June 2021 makes no reference to any change in terms and conditions, but rather to a change in role.

Main arguments – no vacancy

The Ad of 1 June 2021 referred to the establishment of a panel.  The factual position was that at the time of interviews and result of the competition no vacancy existed.  It is understood that by December 2021 the Complainant knew that the vacancy did not exist and could have withdrawn at that stage if the prospect of an immediate move into a vacant position was of decisive importance to him.

The Complainant stated that he was deemed the successful candidate but another Sergeant had the position bestowed on him.  Having regard to the history of the matter, even given its unusual circumstances, it is inaccurate to depict events as the bestowal of a vacancy on another Sergeant.   In addition, it is quite usual for successful candidates in Public Service appointments to wait on panels pending a vacancy, typically for 18 months to 2 years.  Sergeant L was not allocated the vacancy referred to in the advertisement of 1 June 2021.  He was not an applicant.  The direction that he be returned to the position previously held by him had the effect of ending the vacancy.

The allegation that Management refused to give the Complainant is refuted.  No employer is obliged to give a running commentary on matters in dispute.  Employees, including members of An Garda Siochana have rights under Data Protection and Freedom of Information which he utilised in the present dispute.  It is nevertheless true that, as found in the outcome of the grievance procedures, that the Complainant and the other candidates should have been informed, especially when Sgt L returned to the SIC position.

The Complainant asserts that he has been subject to stress, reputational damage and his attendance in the workplace record negatively affected.  The assertion regarding workplace attendance record is no more than provided by the Public Service sick pay arrangements.  It should be noted that in the outcome of his grievance he was assured by the most senior police officer in the Region that he was a valued member of An Garda Siochana and her team.

It is not contended that the conduct of the competition in the case where Sgt L reverted to the SIC position was a Masterclass in public administration in An Garda Siochana. It is however, suggested that the circumstances were very unusual and probably unprecedented.  It is easy to understand the Complainant’s disappointment and frustration at the handling of the matter.  However, no wrong was done to him and no redress warranted.    

Since the position of SIC is unremunerated, no financial compensation would be appropriate.

It is also submitted that a recommendation that Sgt L be removed from his position would be inappropriate.  The Garda Commissioner has the responsibility to direct and control the service under Section 26 (1) (a) of An Garda Siochana Act 2005.  More generally, the Labour Court has clearly stated that it is ‘of the view that it is the role of management to decide on the allocation of resources and service delivery’ and that it is no part of its role on how to direct a management as to how they manage’.

Injury on duty benefit

The application of the 2014 regulations of An Garda Siochana is governed by An Garda Siochana code as supplemented and amended by HQ Directive 139/2010.

The 2010 Directive makes a distinction between ‘injury on duty’ and ‘ordinary illness’.  It also results in a member’s sick leave record being unaffected by the absence.

The Complainant was absent on sick leave from 27 November 2022 to 31 December 2022 and it is this period of absence he is seeking to have re-classified as having been occasioned by injury on duty.   As provided in the 2010 Directive, the matter was investigated and a decision made by a member of An Garda Siochana Senior Leadership team.   The 2010 Directive and Code predates the application of the Industrial Relations Act to members of An Garda Siochana.  A process of collective engagement is underway with An Garda representative bodies to agree a new sickness management policy which will include an appeal procedure. It is submitted that no substantive recommendation be issued on this aspect of the dispute; a fair and objective procedure has been followed and a reasonable conclusion reached.   In particular the Garda Commissioner asks that no recommendation be made that might impinge on the collective process underway.

Conclusions:

Recommendation:

Section 13 of the Industrial Relations Act 1969 requires that I make a recommendation in relation to the dispute.

I recommend that the Complainant accept that the competition is now over.   He should accept that he has been successful in the competition where he could be appointed to the position should it become vacant by December 2024.  I recommend that in order to compensate him for the delays and some errors in the process, the Employer offers him a sum of €3,000 as a gesture to close this dispute.

Dated: 14th June 2024.

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Key Words: