Gardaí were deprived of their legal entitlement to a “genuine” consultation process before the Government cut their sick pay three years ago, the Supreme Court has been told.
The five-judge court has reserved judgment on an appeal by the Garda Representative Association (GRA) arising from a Government decision to halve the paid sick leave entitlements of all public servants from March 2014. The association wants the court to overturn the relevant regulations.
Similar challenges by other Garda representative associations are dependent on the outcome.
Gardaí previously had a more generous sick pay scheme. The GRA argues that due to the additional risk of their occupation, gardaí should have been exempted from the new restrictions.
Before 2012, sick pay was the responsibility of the Minister for Justice, but in 2012 the then minister for Public Expenditure and Reform, Brendan Howlin, initiated a process to alter payment of sick leave for all public servants.
After the GRA sought different treatment for gardaí, Mr Howlin set up a working group but later decided against treating gardaí separately from other public servants.
The GRA claims it was led to believe gardaí would be exempted from the cuts, but that Mr Howlin changed his mind. It claims the inclusion of gardaí was decided upon on December 5th, 2014, two days after Mr Howlin got an email from Shay Cody, general secretary of the largest public service union Impact, warning of serious industrial relations consequences if gardaí were not included.
The GRA lost its challenge to the new regulations in the High Court, but Mr Justice Nicholas Kearns ruled the Department of Public Expenditure and Reform (DPER) should pay the GRA’s costs because it failed to disclose relevant material – the Cody email – until late in the hearing.
Further appeal
The Court of Appeal upheld the High Court’s decision, but the Supreme Court later agreed to permit the GRA to bring a further appeal after deciding the case involved issues of general public importance. The Minister has cross-appealed the costs decision.
Opening the GRA’s appeal, Feichin McDonagh SC said the association was entitled to a “fair, adequate, reasonable and genuine” consultation process before Mr Howlin exercised his delegated power to introduce the statutory instrument regulating sick pay terms for all public servants.
The entitlement to such a process was a matter of law but his clients were deprived of it, he argued.
The Minister for Justice and DPER had started a consultation process and should have ensured this had continued as a fair and genuine one which involved all the Garda representative bodies, but that was not done, he said.
Eileen Barrington, for the Minister, said the Oireachtas does not have to justify its actions and, when conferring a broad policy power on the Minister, there was no obligation to consult. The rules of fair procedures do not apply in the same way to policy decisions, she argued.
‘No objective justification’
The issues raised by gardaí concerning their sick pay were not radically different from those affecting other shift workers or HSE workers and there was “no objective justification” for a different regime for gardaí, she said.
When Mr Justice Donal O’Donnell asked counsel was she “seriously suggesting” the Cody email had not sparked a “U-turn” by the Minister concerning exemption of gardaí, she said she was not saying it was not connected – there was “certainly a change of position”, but “not a complete reversal”. There was “a series of issues” involved and a whole range of issues were still considered after the email.
Ms Justice Elizabeth Dunne remarked there was an issue concerning the Minister’s entitlement to make the decision when there was no statutory power for him to be involved in the consultation process.
