Garda who claimed racial abuse by colleagues wins sick leave case

Garda Deming Gao had challenged the reclassification of his illness from a work injury

Garda Gao Deming leaving the Four Courts after an earlier High Court action. Photograph: Collins Courts

Garda Gao Deming leaving the Four Courts after an earlier High Court action. Photograph: Collins Courts

 

A garda who went on sick leave following alleged bullying and racial abuse by colleagues has won a High Court challenge to a decision by the Garda Commissioner to reclassify his illness.

Mr Justice Paul Coffey quashed a decision deeming Garda Deming Gao was suffering from an ordinary illness and not from an injury on duty.

Garda Gao, a Chinese native who is a naturalised Irish citizen, has been a garda since 2008.

He had been stationed at Dún Laoghaire and Shankill in Co Dublin but went on sick leave in November 2016 following a verbal attack by a Garda colleague.

He is now back at work, the court heard on Friday. His counsel Mark Harty SC told the judge an “on the ground resolution” has take place.

In his action, Garda Gao complained he had been bullied by other gardaí for some time and alleged, after complaining about that to his superiors, he was avoided, shunned, isolated and branded a “rat” by other gardaí.

The court heard, following the November 2016 incident, he was deemed by his doctor unfit for work due to stress and was assessed by the Garda Occupational Health Service.

His injury was initially classified as an “injury on duty”, entitling him to additional benefits, but in May 2017 he was informed by his employer his injury status had been changed to “ordinary illness” and backdated to the time he went out sick.

He was told the initial classification of “injury on duty” was issued in error and claimed he got no other reason or explanation for the reclassification. He was also asked to repay monies allegedly overpaid, which he claimed caused him and his family to suffer financially.

He sought various High Court orders against the Garda Commissioner, including one quashing the decision to reclassify his injury.

Lawyers for the commissioner opposed the action on grounds including no decision could be made on the classification of the garda’s illness until an investigation into his bullying complaints had been completed.

The commissioner also argued the decision at issue was the rectification of an error and was a reiteration of the fact Garda Gao’s sickness absence classification must await the completion of the bullying investigation. It was also argued the decisions complained of were fully and properly explained to him.

In his judgment, Mr Justice Coffey, who noted the garda who verbally abused Garda Gao had been disciplined, quashed the decision to reclassify the illness.

While the Garda Commissioner is entitled to rectify a mistake, no reason or explanation for making the error was given by the employer to Garda Gao, he said.

Such a failure was contrary to basic fairness and would, if permitted, allow a decision maker to revoke a decision and thereby circumvent judicial scrutiny regardless of the consequences for those affected, he said.

The failure to give reasons for the reclassification of the garda’s injury status had further deprived him of a true understanding of his position and denied him the clarity he is entitled to, he said.

He was satisfied a failure by the commissioner to describe or explain “the error” amounted to failure to comply with the fair procedures and principles of natural justice.

The matter will return before the court for final orders in two weeks.