High Court of Ireland Decisions

1. The Plaintiffs in this action are either serving or retired members of the Garda Siochana. They are attached to the Command and Control division of the force in Harcourt Square Garda Station, Dublin since in or about the month of February 1989 or thereafter. They are required to perform technical duties in the operation and supervision of the Garda Telecommunications network. Historically that network was situated in Dublin Castle - which was not and is not a designated particular Garda Station in its own right. The network facilities save for teleprinting equipment were transferred to Harcourt Square and became operational there from early 1989. There were financial and logistical reasons for leaving the teleprinting facilities in Dublin Castle, they served as a nerve centre for Garda intelligence nationally, internationally and for confidential inter-State communications.

2. The number of Gardai who have the necessary skill and training to operate the teleprinting facilities is small. The facilities are manned throughout the 24 hours of each day in three shifts of eight hours each. Each shift is operated by a lettered unit of the force. In theory this may be perceived as including quite a number of members of the force. In fact

3. The evidence of James Campbell, whose case was said to be typical, in its material elements, of other plaintiffs, was the principal witness for the Plaintiffs. Of his 32 years in the force he had spent 27 years working at Dublin castle. Initially he had been stationed at Clontarf Garda Station and received certain allowances for working at Dublin Castle. He lived and still lives in Raheny. After some years he was transferred to Pearse Street Garda Station. Notwithstanding this formal transfer from one designated Garda Station to another, he continued to attend at Dublin Castle because of his particular skills.

4. Initially, while attached in name to Pearse Street Station he obtained a subsistence allowance when he worked alone in Dublin Castle, this allowance was not paid when he shared the work at Dublin Castle with another member of the force. Some years later, about 1989, he was transferred or assigned to Harcourt Square Garda Station. It is from that time that the claim in these proceedings is made. It appears that for the first eight or nine months after the transfer from Pearse Street to Harcourt Square the pattern that prevailed while stationed in Pearse Street Station continued. Then instead of working almost exclusively at Dublin Castle every day, he worked there almost every second day. On the days he works in Dublin Castle, he is not inconvenienced by having to go through the idle motion of first reporting to Harcourt Square Station - but goes directly from home to Dublin Castle and directly home from Dublin Castle. His case is that notwithstanding working in fact an eight hour day he is by Regulations entitled to be paid for working in theory a nine hour day for fifty per cent of the year. His claim being that he is entitled to travelling time at overtime rates because he "does duty away from his station". There was no question that this witness had to be in anyway flexible or unduly flexible, that he would not know where he had to work; or that his very settled routine was disrupted - his was a clear pattern of work/duties. The frequency of his attendance at Harcourt Square Station and Dublin Castle was wholly predictable and Dublin Castle was a twin centred station in all but name. The work carried on at Dublin Castle was an adjunct to that carried on at Harcourt Square; or as Counsel for the Defendants put it to the witness, that for all practical purposes Dublin Castle was and is (in the context of the issues in this case) an annex of Harcourt Square. The witness and his colleagues in the force have continued to make this claim vis-a-vis Harcourt Square and Dublin Castle since 1989 and equally consistently the 1st Defendant in particular has refused to pay on foot of the claim. The witness said that no reason for refusal was given - but it seemed to me self evident and wholly understandable in the light of the fact that a similar claim for travelling expenses from Pearse Street to Dublin Castle in like circumstances had been made and ultimately withdrawn by the claimants.

5. Garda Desmond Walsh, a Pay Clerk at Pearse Street Station, gave evidence by way of illustration of circumstances when travelling expenses were allowed to members who did duty away from Pearse Street Station; but accepted that where overtime claims arose these were authorised by a member's District Officer. Evidence to a like effect was given by Garda Stone, the Deputy General Secretary of the Garda Representative Association, in respect of claims made in Waterford, Sligo and Kildare. The evidence of these two witnesses was illustrative and indicative as to their experience of how the Regulations have been applied in varying circumstances.

6. Mr. James Gallagher who is retired, having been 30 years in the force, was also originally in Clontarf Station and somewhat like Mr. James Campbell was in effect full time in Dublin Castle. He too was assigned or transferred to Harcourt Square in or about 1989 and worked closely if not exactly in tandem with Mr. James Campbell.

7. Mr. Gallagher was elected to the Garda Representative Association and became the District Representative and in that capacity in 1989 made the claim, which was never conceded by the 1st Defendant. The gist of his evidence was that whether a claim was based on a factual expenditure of private time on public duty or whether it was a mere technical or notional consumption of private time, travelling allowance/expenses were payable in units of one half-hour where a member does duty away from his station.

8. The evidence in the case was directed to a document A.72/30/70 (hereinafter referred to as "the Regulations") which deal with Annual Leave, Rest Days, Hours of Duty, Overtime and Night Duty allowance. The general preamble to the Regulations concludes with the issue of "comprehensive instructions"

9. Agrument was advanced and evidence directed specifically to Articles 17 and 18 of the Regulations which read as follows:-

10. Articles 38 and 39 deal with and illustrate by example the intended application of Articles 17 and 18.

11. Counsel for the Plaintiffs in his submissions drew attention to Article 33 which reads as follows:-

12. In my opinion the Regulations were intended to apply to the real world and to practical circumstances. They were not intended to be a charter for the submission and payment of theoretical claims. They are to be given a purposive interpretation and not a too literal construction.

13. It was agreed at the beginning of the hearing that liability only need be tried and the issue the Plaintiff required to be determined was whether or not the Plaintiffs permanently stationed at Harcourt Square Station are entitled to travelling expenses for duties performed at Dublin Castle.

14. I find as a fact that the Plaintiffs are attached to Harcourt Square Station, but that the work carried on at Dublin Castle is part of the Garda Telecommunications Network and that in reality in this context Dublin Castle is an annex to Harcourt Square Station. I find as a fact that the Plaintiffs' place of duty is as much permanent at Dublin Castle as it is at Harcourt Square, and that de facto Dublin Castle is in all but name as much the Station from which the Plaintiffs discharge their duties as Harcourt Square. The distinction between the two venues is that Harcourt Square is also the de jure Station of the Plaintiff.

15. The Supreme Court decision (unreported 3rd July, 1995) in Kavanagh and Others -v- Ireland and the Attorney General decided that in that case which dealt with subsistence allowances the duty of the Court must be to give effect to the purpose of the Order (S.I. No. 218 of 1965) and that it was manifest that it was never intended that members of the Garda Siochana should be paid subsistence allowances for working in what is de facto their permanent stations. In the instant case I am not concerned with any arrangements these Plaintiffs have concerning subsistence or what inferences might be drawn from same. The Plaintiffs have a regular arrangement of work that is twin centred, the fact that the Station at Harcourt Square is incomplete by reason of the Teleprinter being in Dublin Castle does not mean they are working away from the Station. The expression "away" must be considered in context and must also be a matter of fact and degree. The Teleprinter might be in an adjoining building or a building across the street.

16. In my judgment it would not be proper for this Court in this case to supplant the judgment of the authorising officer referred to in Article 2 of the Regulations.

17. A further document was relied upon in conjunction with the Regulations, to wit, Circular DM 16/52/72 which contains the formula for the calculation of time to distance: it is quite peripheral to the issue formulated in the case. Its relevance is that it contains the calculation formula.

18. Having regard to my findings of fact, I refuse the declarations sought and accordingly dismiss the claim.