Lawyers acting for Garda analyst Lois West in a claim for whistleblower penalisation have said she wants the Workplace Relations Commission (WRC) adjudicator hearing the matter to step aside – alleging she has received an unfair hearing from the tribunal.
Ms West, who was deputy head of the Garda Siochána Analytics Service when she testified to the Oireachtas in 2018 on errors in official homicide data, claims she has suffered ongoing penalisation since – including bullying, harassment and sexual harassment as well as having her career held back and her pay cut.
Ms West, who remains on long-term sick leave, is pursuing complaints under the Protected Disclosures Act 2014, the Safety, Health and Welfare at Work Act 2005, and the Payment of Wages Act 1991 against the Commissioner of An Garda Siochána, the Minister for Public Expenditure and Reform, and the Government.
At a hearing today before the WRC, her barrister, David Byrnes BL, instructed by Felix McTiernan of Noble Law, referred to a letter from the adjudicator, Roger McGrath, to the parties last Thursday.
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‘I am back in the workplace full-time and it is unbearable. Managers have become mistrustful’
In it, he said, Mr McGrath had turned down an application to have a retired senior manager, Ms Y, summoned as a witness. The press has been directed not to report the name of this individual or those of a number of other current and former senior gardaí and civilian staff referred to during the case, which has been heard over the course of six days this year.
The adjudicator had also declined to grant an order for the disclosure of certain correspondence sought by the State involving Ms West’s treating psychologist, Dr Elizabeth Cryan. He also directed the complainant side to hand over copies of the transcript of the WRC proceedings it had commissioned, Mr Byrnes said.
The last direction was in the context of the State agreeing to pay half the cost, the tribunal heard.
Mr Byrnes said his client “does not accept” the first and third decisions by the adjudicator.
He said Ms West, who had been certified unfit to attend the hearing, had instructed her legal team to look for the proceedings to be paused and a new date fixed so that a motion for the recusal of the adjudicator could be heard.
Mr Byrnes went on to say that he only wanted to address other reasons the recusal was being sought in the context of a full application. He said the intention was to instruct senior counsel for the application.
“She’s anxious to have her complaints fairly heard and decided, and she’s of the view now that that’s not going to happen in this particular hearing,” Mr Byrnes said.
State counsel, Lorna Lynch SC, said it was not open to a litigant to “sit on their hands” in respect of such a motion until an interim decision was made and there was “very clear” case law that any procedural difficulties were not sufficient to ground a recusal application.
She said it was unclear whether the case was going to end up in a “holding pattern” until Ms West was certified fit to attend – and whether Mr Byrnes was “making an allegation of bias in some form”.
Mr Byrnes said a claimant “can put up the red flag at any point”.
“Yes, bias is going to be a matter in issue, and there’s many grounds for an unfair hearing, in my submission, that the complainant is entitled to rely on for the purpose of the recusal application,” he said.
After further legal argument and an adjournment of half an hour, Mr McGrath asked Mr Byrnes to make submissions in writing on the motion for his recusal and the need for another hearing day to consider the matter.
He said the State would have an opportunity to make responding submissions.
Mr Byrnes said his client was “entitled to make full oral submissions” on a motion for recusal and it was her choice whether to provide them in writing.
Mr McGrath later closed the hearing by saying: “I just want to put it on the record that despite our ups and downs, my job is to apply the law independently and impartially. I said earlier on in these hearings that my major concern was Ms West. You may not accept that, but I repeat it: my concern is for Ms West.”
He adjourned the matter and wished the parties “a very happy Christmas”, asking Ms West’s husband, who was present for the matter, to pass on his regards to his wife.
Directions were made to the press in late 2023 not to name the senior official implicated in the sexual harassment allegations, Mr X, along with any Garda legal department personnel, and certain other sworn members of the force. Mr McGrath also gave directions in March that certain statements made during the course of the hearings that month could not be reported.
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