UD1153/2014

EMPLOYMENT APPEALS TRIBUNAL

CLAIM(S) OF:                                                                                               CASE NO.

Gregory Crowe – claimant                                                                            UD1153/2014

Against

An Post – respondent

under

UNFAIR DISMISSALS ACTS 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:       Mr. T. Ryan

Members:       Ms A. Gaule

Mr F. Keoghan

heard this claim at Dublin on 13th October 2015 and 11th December 2015

Representation:

_______________

Claimant(s):               Mr Cormac O’Dalaigh

Communication Workers Union

575 North Circular Road, Dublin 1

Respondent(s):           Mr Seamus Clarke BL instructed by

                                    Ms Freda Mahon

An Post Solicitor's Office

General Post Office, O'Connell Street, Dublin 1

The determination of the Tribunal was as follows:-

Summary of Respondent’s Case:

The fact of dismissal was not in dispute. The claimant was employed as a postman having commenced his employment with the respondent in 1999. In 2011, while on long term sick leave for back pain, he was convicted under the Misuse of Drugs Acts for the sale and supply of drugs and sentenced to a nine-month prison term suspended for 14 months. The claimant’s house had been searched by the Gardaí and a wrapped parcel was discovered which contained €2,500 worth of cocaine. This came to the attention of the company through a newspaper article which reported the sentencing. The claimant was called to a meeting on 13^th September 2011 with his local HR Manager where he confirmed that he was the person referred to in the article. The HR Manager suspended him with pay and forwarded the file to central HR.

An Employee Relations Executive met with the claimant and his Trade Union representative. At the request of the TU representative she made enquiries through the respondent’s Security Services department to the arresting Garda (though on this occasion a Detective Inspector responded). The Garda accepted that the claimant was not a known drug dealer and took a sympathetic view towards him. The head of security services informed her that this was a very serious conviction.

The TU representative sought clemency on behalf of the claimant as he was a recovering heroin addict on a reducing amount of methadone who was coerced by his former drug dealer to hold the drugs in payment for a former drug debt of approximately €350; which the claimant denied he owed. His house was searched by the Gardaí a few days after receiving this package. The claimant had suffered a breakdown, his relationship with his fiancé had ended, a friend and his brother in law had died and his mother was suffering with Alzheimer’s which had led to a breakdown in relationships with his family members concerning her care.

On 18^th January 2012 the Employee Relations Executive recommended that the claimant be dismissed on the grounds of gross misconduct and a loss of trust and confidence in him due to his conviction. She considered that a postman being convicted of the sale and supply of drugs was very serious. She took a dim view of the fact that the claimant was a heroin addict from 2005 to 2010 and had not sought help from the company’s medical support office even though he had been attending for his back problem. The newspaper article reported that the claimant had been a heroin addict since 1997 but this was disputed by the claimant’s representative. Also the claimant had not revealed his criminal conviction to the company which had discovered the situation through a newspaper article. She could not understand why he chose to hold drugs and risk his job over paying the drug debt. Ultimately she could not see how a postman with that conviction could continue in the job. The claimant was notified of his dismissal on 25^th January 2012 and offered the opportunity to appeal which he did.

The appeal was heard on 14^th March 2012. The Appeal Officer ultimately decided to uphold the dismissal. On previous occasions he had overturned dismissals, but on this occasion he felt that it was a risk he was not prepared to take. The claimant had been convicted of a criminal offence and had been coerced by some intimidating and nasty individuals. He viewed this as a continuing risk and considered this alongside the valuable items a postman delivers, the risk of theft and also that a postman has access to thousands of delivery points. The postman is in a position of trust and the respondent had a duty of care to its employees and customers. During his investigation he directed questions to the arresting Garda through the company’s Security Services department. He viewed the Garda as someone who could speak positively about the claimant, but who ultimately had arrested and saw the successful conviction of the claimant. He took all the representations into account and, while he felt sorry for the claimant, trust was the most important quality of a postman. The claimant was paid until March 2014 due to the delay in the appeal being heard and communicated.

Summary of Claimant’s Evidence:

The Garda who arrested the claimant gave evidence. He received a tip-off that drugs were being held in the claimant’s house and subsequently searched and seized a small wrapped parcel containing cocaine with a value of approximately €2,500. He had not previously met the claimant but was aware that he was a heroin user from his associations with other users. He accepted that on this occasion the claimant was not a drug dealer and was likely threatened into minding the drugs. The claimant would not reveal to him who the owner of the drugs was but he was aware of this due to the tip off.

He accepted that the claimant was not attempting to profit from holding the drugs. The drug dealer in question was a bully in the witness’s opinion. Dealers often supply users with free drugs in order to have a hold on that individual. He later asked the claimant if he had been pressurised into paying for the drugs taken in the search, but the claimant denied this though said he had been ignoring calls from the dealer. He was not aware of the situation since.

The claimant was convicted and given a nine-month’s suspended sentence. He did not come to the Garda’s attention after the conviction in this case.

The claimant gave evidence. He began using heroin in 2005. At first he was using every two weeks, but this increased to the point that by 2008 he was using once a day. His 18 year relationship with his partner broke down during this time and his mother was diagnosed with Alzheimer’s in 2008. His relationship with his siblings broke down and he ultimately bore the responsibility for minding his mother and finding her a nursing home, which she was accommodated in from September 2010. In February 2011 he injured his back while gardening and commenced sick leave on 7^th February 2011 which continued until his suspension in September 2011.

He felt that the drug dealer had seen that he was vulnerable and took advantage of him. He believed that if he had not been under such stress he would have seen what was coming. The dealer called to his house late one Sunday evening and said he owed the dealer money. The claimant had not been aware of this debt. The dealer had often called for him and shared the dealer’s heroin, which the claimant smoked unaware that the dealer was tallying this up. He had thought they were friends initially. The claimant said he could not get the money until the next day and so the dealer insisted that he hold a parcel of drugs which he would call for the following day. The claimant accepted this but the dealer did not come back the next day or the following day. The claimant called him several times but there was no sign of the dealer. The following day on returning to his house he found the Gardaí searching for the drugs. He would not say who owned the drugs. He later paid €1,500 to the dealer to compensate for the drugs seized.

Shortly afterwards the claimant’s friend died and then his brother-in-law with whom he had not reconciled before his death. The claimant did not reveal his addiction or impending court case to the company counsellor whom he was attending and instead chose to attend an independent addiction counsellor and doctor. He began using methadone to replace heroin and had managed to get this down to a low dose.

He contended that his drug use had never affected his work. He did not reveal his addiction as he felt ashamed of it. A colleague had revealed to his manager that he had an addiction and assistance had been provided to him. However, this situation became quickly known to all the staff in the office and the claimant felt that this individual was treated differently after admitting his addiction. He agreed that the individual had been given assistance by the company.

Since his dismissal the claimant has been claiming disability allowance and is unavailable for work. He was seeking reinstatement. He was unfit for work but indicated that he would try to resume duties though he could no longer fulfil the duties of a postman. His back still caused him pain as he suffered from repeated episodes on occasion. He felt that there were other positions which he could be suitably placed.

Determination:

There is considerable uncertainty as to whether an employee’s conviction for a crime committed outside the workplace would entitle the employer to dismiss the employee. In such circumstances the employer would argue that the bond of trust had broken down. The matter is not that straightforward. The basic principle is that usually an employer’s jurisdiction over misconduct of the employee ends at the company gate. A dismissal for misconduct outside the workplace can only be justified where there is sufficient connection between the crime committed and the employee’s work, in such a way that would render the employee unsuitable or capable of damaging the employer’s reputation. The guiding principle in cases involving misconduct outside the workplace is that the employer must be able to show a connection between the misconduct and the company’s operational requirements.

As a general rule the employer has no right to institute disciplinary proceedings unless it can be demonstrated that it has some legitimate interest in the conduct of the employee. An interest would normally exist where there is some nexus between the employee’s conduct and the employer’s business. The employer has to demonstrate that it has a legitimate interest in the crime committed to the extent that the misconduct is disruptive to business, employee relations or affects the reputation of the company. The test is: has the out of work conduct of the employee impacted adversely, or is capable of impacting adversely, on the employer’s business? If it has then the employer has the right to institute disciplinary proceedings. Whether this gives the employer the right to impose sanctions, up to and including dismissal, will depend on the particular circumstances of each case. No two cases are the same and each case must be decided on its own particular merits. Because of this it is extremely difficult to have consistency of approach.

The Tribunal’s attention was drawn to a case of Marvin Moore v Tesco Ireland Limited UD2924/2011 where the claimant was held to be unfairly dismissed and awarded €11,500, even though the claimant had been convicted of sale and supply of drugs. The Tribunal distinguishes the Moore case from the case before it, in that in Moore there was no publication in newspapers of the conviction, whereas in the instant case there was prominent publication of the conviction. (The Tribunal is not saying that if there is no publication an employer cannot dismiss an employee. Neither is it saying that if there is publication that the employer is automatically entitled to dismiss an employee). The Tribunal in the Moore case also held that the employer had not given sufficient consideration to alternative sanctions. The Tribunal also reminds itself that no two cases are the same and each case must be decided on its own particular merits.

In summary if a dismissal for out of work conduct is to be fair there must be a genuine connection between the employee’s offence and the employment. The connection must be such that:

• it leads to a breach of trust and/or causes reputational and/or other damage to the company;
• the employee’s offence makes the employee unsuitable to continue in the job -for example if an employee is convicted of theft and his job involved dealing with cash then this could well be sufficient grounds for dismissal;
• the employee’s offence causes the employer to genuinely lose trust and confidence in the employee;
• the employee’s behaviour risks bringing the employer’s name into ill repute;
• dismissal is more likely to be fair if the conviction is reported in the press – for example in Post Office v Liddlard [2001] All ER(D) 46 (Jun) CA the dismissal of a postman, whose conviction for hooliganism at a football match in France was reported in the press in a “name and shame” campaign was held to have brought the company into disrepute and was held to be a fair dismissal.

The Tribunal is satisfied that the claimant’s conduct had destroyed the relationship of trust. The claimant (as postman) held a position of great trust. He was responsible for delivering mail, some of which may be registered mail containing money. A reasonable employer would also be concerned that the claimant might be forced into distribution of drugs (which his position as postman provided ideal cover for), given that he was convicted for having drugs for sale or supply. The Tribunal is fully satisfied that there is a connection or nexus between the claimant’s criminal conviction and his employment. Such a conviction inevitably led to a breach of trust, caused reputational damage, and led to the claimant’s dismissal which the Tribunal holds is fair and reasonable having regard to all the circumstances.

Accordingly, the claimant’s claim fails.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)