Saturday 7 December 2019

GRA loses injunction bid over €27m sick pay regulations

GRA loses injunction bid over €27m sick pay regulations
GRA loses injunction bid over €27m sick pay regulations

Tim Healy

THE Garda Representative Association (GRA) has failed to obtain a High Court injunction preventing the Minister for Public Expenditure and Reform bringing in new regulations on sick pay WHICH cost €27m across the force in 2012.

The GRA, along with other associations representing gardai, had sought to stop the introduction of the regulations as they applied to them claiming they were in breach of fair procedures and/or of their legitimate expectation.

They claimed the Minister did not have the power the make the regulations without providing a derogation for them.   They also claimed they were given an assurance, amounting to legitimate expectation, that the regulations would not come in prior to the conclusion of negotiations which began in September 2013 and not due to conclude until next month.

The Minister rejected the case for a derogation and also said there was sufficient time and opportunity for consultation.

Today, Mr Justice Michael Peart said the court could only grant an injunction of this nature to an individual garda affected by the regulations and not to an association.

It was perfectly possible for an individual garda, so affected, to seek to be joined in the GRA's injunction application, but the GRA does not have the legal standing (locus standii) to do so, he said.

It would be "sage to assume" the GRA would continue to fund proceedings with one of its named members on board in the case, he said.

Alternatively, the member could bring an individual injunction application under which the court could then deal with the usual legal tests governing the granting of injunctions.

However, the judge said, even if legal standing was not a problem for the GRA, he would still not have granted an injunction on the basis that the balance of convenience did not favour it.

The new regulations were introduced by the Minister to reduce very significant cost to the tax payer of sick leave which the judge noted amounted to half a billion in 2011 across the entire public service and for the Garda Siochana alone (in 2012) was €27m.

The Minister was at the same time required to meet the Government's obligations arising from the Memorandum of Understanding entered into with the Troika.

"This must be regarded as a pressing need in the national interest", he said.

While it need not, in all circumstances, trump the interest of any particular litigant seeking to challenge a particular measure, it "must weigh heavily in the balance" when the court comes to consider balance of convenience, he said.

The judge also said the application did not meet the injunction test of whether damages would be an adequate remedy.  Even if an individual was taking the case, the losses which would be suffered by that person would be easily quantifiable and therefore disentitle that individual to an injunction, he said.




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