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To all the confused HR managers & employment law students: Yes, you are right. If an employee is largely exonerated by an internal review (say a finding they broke the rules but it wasn’t a sackable offence) it is not open to their boss & peers to try to force them to resign. 1/
That is a brand of constructive dismissal, which is usually inherently unlawful. It is strange to see judges stepping into the realm of something they would be unlikely to find acceptable from the management & staff of any other public body. 2/
I agree with @quiatimet on @NewstalkFM today that “stated misbehaviour” for impeaching a judge must be serious & grave. I would group judicial offences loosely into “apology”, “resigning” & “impeachable” categories. 3/
It seems his colleagues saw this as a resigning offence - he should resign to preserve confidence in the judiciary - but he hoped to keep it in the “apology” category. Whatever about whether he should resign, this case definitely does not fall into the “impeachable” category. 4/
There is no reality to any suggestion that the Oireachtas should take the first step in an impeachment process by forming a committee to look into the matter. In particular, an Oireachtas committee would struggle to deviate from the findings of the Denham report. 5/
Some responsibility for this mess rests with politicians for not prioritising the establishment of the Judicial Council. If there were well established guidelines on ethics and conduct for judges, perhaps this would never have happened. 6/
Certainly we could tell immediately if there had been a breach of relevant guidelines & see what the appropriate sanction would be. There would also be proper informal resolution & formal investigation procedures to establish the facts and recommend a sanction if appropriate. 7/
For those for whom the solution to every problem in the news is for someone to resign, remember that judges are not top flight soccer managers, paid a premium to reflect their precarious tenure with the safety net of knowing there is always another team who will hire them. 8/
My main concern is the extent to which collegiality on the Supreme Court might be affected. We don’t have the divisive tradition of some other countries, and appeal decisions are usually reached by consensus. That requires a special atmosphere of trust and confidence. 9/
I also worry about the extent public perception has crept into the analysis of whether a judge should resign. A proper sanction is objective, based fairly on whether a judge is found to have seriously broken judicial rules, not weighed down by subjective issues of perception. 10/
So, HR managers: check both your informal resolution & formal investigation procedures are robust, make sure your ethical guidelines for staff & the possible sanctions for breaches are clear. Law students: enjoy watching a constitutional law exam question unfolding in real-time!