Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00023392-001

21/11/2018

The Complainant commenced his employment with the Respondent on 1st November 2007. He was dismissed on 25th July 2018. The Complainant contends that he was unfairly dismissed.

The Respondent submits that the Complainant was dismissed on 25th July 2018. The Respondent submits that the Complainant’s duties included audits. The Respondent submits that the incident giving raise to the dismissal was relatively straight forward and has not been the subject of any particular contest or controversy as to its facts. The Civil Service Disciplinary Appeals Board, which confirmed the first instance decision to dismiss, recorded the details as follows: “The Special Compliance Branch staff of [the Respondent] responded to an advertisement on Facebook offering cigarettes for sale. On 5th January 2018, [the Complainant] delivered the cigarettes and the [Respondent’s] staff seized 400 cigarettes from him without an Irish Tax Stamp affixed.”

The reasons for dismissal (which would be later upheld by the Appeals Board) were stated by the first instance decision maker, Mr P, as follows:

“I have formed the opinion that the actions as set out above constitute gross misconduct as defined by the Disciplinary Code, that these actions breach [the Respondent’s] Code of Ethics, compromise his standing within [the Respondent] and potentially imperils [the Respondent’s] good reputation.”

The Respondent argues that the Complainant will say that the advertisement for the contraband cigarettes (cigarettes on which tax had not been paid) was posted on Facebook by his girlfriend and he merely assisted her. However, the Respondent submits that it is accepted by the Complainant that,

a.       It was the Complainant who purchased and brought the cigarettes from Poland.

b.       It was the Complainant, who knowingly made the delivery of the contraband cigarettes on foot of interest shown in the Facebook advertisement, and

c.       The Complainant was directly involved in selling the contraband cigarettes for cash.

What that means is that the Complainant involved himself in the sale of contraband cigarettes contrary to the Finance Acts and the Respondent’s rules which are the specific field of legislation and rules that he was employed to safeguard. The Respondent outlined in more detail its remit. The Respondent submits that, as Mr P stated to the Appeals Board in the course of the appeal the Respondent’s good reputation plays a key function in supporting voluntary compliance by its customers. The Respondent’s staff rely upon this moral authority when confronting non-compliance. The Respondent submits that the Complainant’s role was part of an Audit team in which it was his job to confront non-compliance with the Respondent’s rules. Even if these were not specific to his role, the Complainant was subject to the following duties pursuant to the Civil Service Code of Standards and Behaviour and the Respondent’s Code of Ethics. The Code of Ethics provides that the Respondent’s staff must act with “integrity and honesty and within the law”. It provides that they must “not behave in a manner which may bring [the Respondent] into disrepute”. The Code is clear that as the Respondent’s official “we enjoy a reputation for honesty, integrity and maintaining the highest possible standards of professional conduct”. There is also clear provision to avoid conflicts of interest (see later statement from the Complainant that he felt pressure from his girlfriend to become involved in the sale of the contraband cigarettes).

The Respondent submits that serious misconduct, as defined in the Disciplinary Code, is a basis for dismissal and includes engaging in prohibited conduct, disrespecting the law, bringing the Respondent into disrepute and breach of trust and confidence.

The Respondent argues that a great deal of detailed and thorough consideration and reasoning has been applied to the dismissal of the Complainant.

The Respondent submits that the Complainant has criticised the Respondent and the process leading to his dismissal on a number of grounds, but these appear to consist of essentially three basic complaints:

a.       A matter of procedural fairness

b.       An argument on proportionality of sanction; and

c.       A complaint concerning a parallel criminal process.

Procedural fairness

The Respondent submits that the Complainant’s arguments about procedural fairness are classic example of “form over substance”. The Complainant makes much of what he describes as flawed procedure, but he does not identify a single material issue by which he was actually prejudiced by the procedure applied. Procedural arguments are not an end in themselves (Kelleher v An Post [2013] IEHC328 which is cited and quoted from below). This is without prejudice to the Respondent’s position that the procedure applied was full and fair. Any flaw, perceived, technical or otherwise, would in any event have been cured by the appeal process (Rowland v An Post [2017] IESC 20). The Complainant must therefore demonstrate that the appeal process was flawed. Given that he was specifically asked by the Appeals Board ‘what were the biggest errors in the handling of this case, and could he flesh these out?’, he had his opportunity to make a case in substance rather than form. His answer, however, to this question was simply to say procedures were not followed and then immediately talk about the severity of the sanction. In reality, his case is that alone: his complaint is that the sanction was too severe.

The Respondent submits that the Complainant’s complaint form is a carefully crafted narrative of the Complainant’s case, as were his opening statement to the Appeals Board and his appeal grounds submitted in the course of the disciplinary process. And yet at no point did the Complainant specify how the outcome of this case could have been different if X, Y and Z had occurred. He refers, enigmatically to ‘undue haste to judgement’ but he does not point to any aspect of the process which, if done otherwise, would have made any difference.

The Respondent submits that arguments concerning flawed procedures should never be an end in themselves but must be a means to an end. Logically the ‘end’ is that the flaw in procedure resulted in specific prejudice. In that regard, the Respondent relies on Kelleher v An Post. In the present case, despite being given ample opportunity to do so, the Complainant did not identify any prejudice.

Two-stage process requirement: Circulars must be read purposively

The Respondent submits that the Complainant argued that he was entitled to a separate and distinct investigation and disciplinary process. Whilst he points to a rule of the procedure that might be read as a requirement in this regard, he does not say what prejudice arose from a unitary process in his case. There was no factual dispute in the case. The Appeals Board listened to this argument and said that "[T]he Board noted that a two-stage investigation was not necessary in this case given the facts were not disputed. [The Complainant] was given a full opportunity to be heard on the context of the seizure, his reasons for his involvement and to point to any explanatory and mitigating factors. [The Complainant] was afforded a reasonable opportunity to answer the allegations arising about him."

The Complainant seeks to read the Civil Service Disciplinary Code like a statute wherein it must be applied strictly, in mandatory terms and without discretion. This is not supported by legal authority. To be clear, the Respondent argues that the Disciplinary Code does not require a strict separation between investigation and discipline. Any such separation (essentially to observe the nemo iudex principle) would only arise where there was some danger that the investigator was tainted by his or her involvement in the investigation. That is the purpose of the process and indeed that is the purpose of fair procedures. In circumstances where the Code should be interpreted purposively (Joyce -v- The Board of Management of Colaiste lognaid), the sensible reading of the rule in the context of this case is that where facts are not in dispute and the facts are not complex, no separate investigation is required.

The Disciplinary Code provides "In cases where the facts are not complex and where the suspected misconduct is not serious, the fact-finding exercise may take place as part of the disciplinary meeting. " This provision, read in a manner consistent with non-statutory interpretation, refers to two scenarios not requiring an investigation separate from the disciplinary process. It can be read disjunctively as well as conjunctively. In other words, this was a case where the facts were not complex. It did not matter that it was also a case that might be considered serious. A case can consist of serious misconduct and not consist of complex facts. It would be absurd to suggest, for example, that an unprovoked assault on the office floor in front of colleagues followed by an admission of wrongdoing requires an investigation. The Complainant was caught red-handed delivering contraband cigarettes and accepted he was wrong to do so. His only submissions beyond that go to mitigation of his wrongdoing, not whether his wrong-doing was ascertained.

A case may be simple notwithstanding it is serious

It should go without saying that a case may be simple and straightforward even though it is also very serious. If legal authority is needed, this point was made by the Supreme Court on the related issue of the right to legal representation during disciplinary hearings. In Burns v Governor of Castlerea Prison [2009] 3 1.R. 682 the following was said by Geoghegan J. at p. 688:

"The cases for which the respondent would be obliged to exercise a discretion in favour of permitting legal representation would be exceptional. They would not necessarily be related even to the objective seriousness of the charges if the

issues of proofs were purely ones of simple fact and could safely be disposed of without a lawyer. “

Decision makers may exercise discretion as to procedure

The Appeals Board in this case found that there was adherence to the procedure and proportionality was applied in their application. This is an application of the proportionality principle that is separate and distinct to the question of a proportionate sanction. Proportionality is a principle essentially of necessity and rigour. Effectiveness, practicality and expedition can be factors that are weighed against necessity and against whether a given discretion is exercised in an appropriate manner. It permits a range of responses depending on the circumstances. Whilst procedural fairness is part of the equation in assessing the fairness of a dismissal, decision makers do have discretion as to procedure. Clarke J giving judgement for the Supreme Court in Rowland v An Post [20171 IESC 20 said as follows,

"Many errors of procedure can be corrected by appropriate measures being taken before the process comes to an end. Decision makers in such a process have a significant margin of appreciation as to how the process is to be conducted (subject to any specific rules applying by reason of the contractual or legal terms governing the process concerned). Thus the exact point at which parties may become entitled to exercise rights such as the entitlement to know in sufficient detail the case against them, the entitlement in appropriate cases to challenge the credibility of evidence and the right to make submissions are, at least to a material extent, matters of detail to be decided by the decision maker in question provided that the procedures adopted do not, to an impermissible extent, impair the effectiveness of the exercise of the rights concerned. (Ibid. para 2.4.).

Legal representation at the Appeals Board hearing

The suggestion that the dismissal in this case was unfair because the Complainant was denied an adjournment of his Appeals Board hearing on 15th June 2018 due to the unavailability of a legal representative is surprising. The solicitor in question had been advising the Complainant since before 4th May 2018. The Complainant's solicitor's firm website states that the firm specialises in employment law. As such it will have been known that the WRC and the Labour Court routinely refuse adjournments for this reason. A full 6 weeks (at least) was ample time to ensure that someone would be available to represent the Complainant at the hearing. And it was legal representation that the Complainant was insisting on. The law is not with him on this point.

On 13th June 2018 the Complainant wrote an email just 2 days before the Appeals Board hearing seeking an adjournment. There are numerous issues arising from this email which do not inure to the Complainant's benefit. This email did not disclose that the Complainant knew full well that legal representation (or unavailability of a particular representative) was not a sound basis for an adjournment. More importantly it does not engage with the obvious fact that his solicitor's office (an office of at least 4 solicitors) had written a letter for him on 4th May on the very issue of his dismissal and must have been familiar with his case.

All of this presupposes the necessity on the facts of any requirement grounded on some incapacity or prejudice suffered by the Complainant. None such is demonstrated or even mentioned here.

It is clear that the Complainant had every opportunity to bring with him his trade union representative or a civil servant to the Appeals Board hearing. He was, in principle, permitted (not entitled) to be represented by a solicitor. Paragraph 1.2. of the Disciplinary Code provides that one of the principles of the Code is that,

"[A]ll civil servants must be treated in a fair and equitable manner in accordance with the principles of natural justice which will normally include: [..] The right to be represented by a serving civil servant or by an official employed by a trade union holding recognition from the relevant Department or Office in respect of civil servants at that grade or rank; ...

Paragraphs 3.2.9. and 3.3.4. are identical in terms to the foregoing and refer to investigation meetings and disciplinary hearing. Appendix D of the Handbook also refers to representation and equally is of no assistance to the Complainant in this case.

The Complainant criticises the process simply on the basis that he did not have his chosen representative, a particular solicitor, available for the appeal of his dismissal. Once again, this argument must fail for precisely the same reason as the other procedural complaints —that no specific prejudice was identified at the time or has been identified since. He was specifically asked on 2nd May 2018 what were the reasons why the hearing should be postponed and the only relevant answer to this received (on 10th May 2018) from a trade union representative, relaying the solicitor’s advice was that the two cases arose out of the same circumstances. The issue of parallel proceeding is dealt with separately in this outline statement.

There is, in any event, no entitlement to legal representation. This procedure conforms with the Industrial Relations Act 1990 and S.I. 146/2000 Industrial Relations Act 1990 (Code of Practice of Grievance and Disciplinary Procedures) (Declaration Order) 2000.

It has never, in fact, been claimed by the Complainant that he was deprived of the entitlement to have someone present with him at the Appeals Board hearing (he had his trade union representative with him at the first instance process). What he complains of is that he did not have his chosen solicitor present for the appeal hearing. That is a very different proposition to an argument about refusing accompaniment or non-legal representation. There is nothing in the Complainant's case, which has been drafted with care, to suggest he needed a 'witness', trade union or a non-legal person present.

A right to specific and qualified representation might arise where there are complex issues, where there is a need for expertise in the application of the laws of evidence, cross-examination, statutory interpretation and the application of legal precedent. None of this arose here. There were no witnesses. Nothing exceptional by way of facts or legal principle arose. Indeed, the relevant facts were uncontroverted and the principles quite straightforward. Whilst the issue of the Complainant's misconduct was serious and did go to reputation, the following essential features of a case requiring legal representation are absent. (Burns v Governor of Castlerea Prison):

A)      Multiple legal issues

B)      Incapacity to act in one's own defence

C)      Complex facts

D)      Complex hearing procedure

The mere fact that the subject matter of the hearing might lead to dismissal (or indeed that there may be parallel criminal proceedings) is not exceptional (larnród Eireann v McKelvey [2018] IECA 346).  As quoted above, the Supreme Court has expressly said that the need for a lawyer may not be indicated by the seriousness of the charge where the transaction is a simple one (Burns). The Court said it was 'wholly undesirable' that lawyers be present at disciplinary hearings unless it was clear that the hearing would offend the principles of constitutional justice. This was recently followed by the Court of Appeal in larnród Eireann v McKelvey [2018] IECA 346 at para 36. In McKelvey the Court said of the principles to be applied on the entitlement to legal representation,

"It is important, I believe, to conduct this exercise mindful of the guidance provided by Geoghegan J. in Burns to the effect that it is wholly undesirable to involve lawyers in workplace investigations unless it be established that there is something exceptional about the matters to be scrutinised such that it would be reasonable to conclude that the proposed hearing could not be a fair one absent legal representation." (ibid, at para 53).

It must be borne in mind that the Complainant was seeking to delay matters pending the outcome of criminal proceedings. He was on full pay during this process and a holiday period was approaching which would have created further delay. The Complainant had sufficient notice of the date of the hearing. He had legal representation insofar as he had a lawyer who was advising him. He appears to have fallen out with his trade union representative (a state of affairs that must have been known to him or at least anticipated by him in early course). He did not explain why this occurred. He does not appear to have sought alternative representation from a trade union or from a civil servant. He did not explain why he did not so. The papers are not so extensive in this case that a solicitor could not have 'read in' to the case in the course of a few hours, certainly where no material facts were disputed and where no witnesses were to be called or cross-examined.

The Complainant was not, therefore, entitled to a representative that would speak on his behalf or intervene in proceedings but rather to have someone present in support, as a witness and who could assist. There was nothing to stop the Complainant bringing a non-legal person with him to the appeal. A right to legal representation would be an overstatement of his entitlements. Even if the Complainant had such a right, the notice he must be presumed to have had was not insufficient or inappropriate. The Complainant was not an ill-equipped, uneducated and inarticulate employee. Indeed, his opening statement and his grounds of appeal are admirable in their articulation and flawless in their presentation.

Disproportionate sanction

The sanction in this case was arrived at expressly after consideration of alternatives. It was expressly arrived at in the context of the particular role of the Complainant and the specific duties he had with respect to law-abidance, rule-compliance and upholding the reputation of the Respondent. It is in these circumstances that the WRC is being asked effectively to rule that it is not for the Respondent to dismiss one of its Auditors for knowingly breaching rules he was supposed to safeguard. He is also asking the WRC to ignore the manner in which the Complainant met the case which essentially amounted to seeking an apology from the Respondent and characterising his own misconduct as not serious, merely a 'silly mistake'.

It is trite law that a tribunal cannot substitute its own view on the merits. The Respondent cites Governor of Bank of Ireland v Reilly [2015] ELR 229 and Allied Irish Banks v Purcell [2012] E.L.R 189.

It is respectfully submitted that the Respondent acted safely within the band of reasonable responses in this case. The seriousness and rigour with which the Respondent seeks to uphold its own standards of conduct must be, it is submitted, to a significant extent a matter for the Respondent. This is essentially what is endorsed by the decision in O 'Reilly.

Parallel criminal proceedings

The Complainant argued at the hearing of his appeal that he should be afforded the opportunity to be acquitted of the criminal charges before the appeal was heard. This indicates a fundamental misunderstanding of what the criminal process entailed or how it could possibly relate to his dismissal. If acquitted of criminal charges this would mean no more than that a Court was not satisfied to the very high criminal standard of proof that he was guilty of criminal offences. An employer operates in a very different context with respect to dismissals wherein the standard is as set out about in O 'Reilly.

No mention whatever is made by the Complainant or his solicitor of the right against self-incrimination which is the only basis on which any issue could have been made regarding postponing internal proceedings. However, even if it had been raised, the right against self-incrimination is irrelevant in this case as the Complainant admitted his role in the sale of the contraband cigarettes.

The Courts have confirmed that a finding against an accused person in a disciplinary hearing is not admissible in a criminal court at a trial of offences arising from the same subject matter. (larnród Eireann v McKelvey). Postponement of criminal proceedings is not, in fact, supported by legal authority.

An employee is obliged to engage in an internal civil process, as the Complainant in fact did in this case, notwithstanding the existence of criminal proceedings. If there is a specific aspect of that process (for instance a specific question or document) which might give rise to an issue, then it is for the employee to engage with the internal process and to point to any potential prejudice. Once again, the complaint is made in this case as a matter of form before substance. Moreover, no authority supports a position where an employer is obliged to place matters entirely on hold pending the outcome of a process the duration of which is a complete unknown.

Complainant’s attitude to his misconduct

Successful unfair dismissal claims before the WRC on the basis of an argument of disproportionate sanction tend share particular features in that the dismissed employee,

a. expresses immediate and genuine remorse for the wrongdoing committed, and

b. shows sufficient insight into the matters at hand and an understanding of the broader implications for the employer of the wrongdoing.

Here these features are absent.

Section 6(1) of the Unfair Dismissals Act 1977-2015 provides that “... the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal." (emphasis added)

The decision of the Appeals Board was to affirm the decision of Mr P and reject all grounds of appeal on which the Complainant relied. Mr P's reasons for dismissing the Complainant are therefore of central importance. Among these reasons was the following:

[the Complainant] had, during the hearing, twice mentioned "hyperbole" and that this gave [Mr P] serious cause for concern as it gave him the sense that [the Complainant] was in denial with regard to the seriousness of his actions."

(Report of Appeals Board, p.8, para 4)

It is respectfully submitted that the Complainant's approach to the appeal in this case consisted of some rather surprising remarks which are very telling of the breach of standards for which he was ultimately dismissed:

a.       He said he didn't think it was his responsibility to report his misconduct (the incident).

b.      He described what he had done as a 'silly mistake' and argued that it was not a serious issue. He referred to his dismissal as 'completely unwarranted.' He had also twice referred to the language used to describe his conduct as 'hyperbole'.

c.       He equated what he had done to 'performance' issues he had himself dealt with in his role as manager.

d.      The Complainant expressly sought an apology from the Respondent for the way he was being treated.

e.       He claimed that what happened, happened outside work, and saw this as a factor that distanced, in real terms, his conduct from his work.

f.        He claimed, without acknowledging the specific remit of his Department, that if he had engaged in the same conduct in other departments he would not have been dismissed.

g.      He offered in mitigation the fact that "it was hard for him to say no to [his girlfriend] when she asked him to become involved in the sale of the contraband cigarettes”. He does not attempt to reconcile this with his claim that the chances of a recurrence of misconduct are 'nil'.

Conclusion

The Complainant not only seeks a ruling from the WRC that he was unfairly dismissed but that he should be reinstated. It is respectfully submitted for the reasons aforesaid that there were substantial grounds for the dismissal of the Complainant. His dismissal was not unfair. A remedy does not arise and, if it did, reinstatement is counter-indicated by the manner of Complainant's meeting the case.

Mr P, HR Manager and Mr M, Assistant Principal both gave evidence at the hearing.

The Complainant was employed by the Respondent since 2007. As of Christmas 2017, the Complainant had been promoted twice within the Respondent and had an unblemished record of service for the Respondent.

At Christmas 2017, the Complainant and his girlfriend travelled to Poland. The Complainant’s girlfriend purchased three cartons of cigarettes and on their return, the Complainant’s girlfriend advertised two cartons of cigarettes online and agreed to sell them. The Complainant’s girlfriend asked the Complainant to pass the cigarettes to the purchaser. The Complainant was aware that the actions of his girlfriend were unlawful. He was placed under pressure by her. He reluctantly and foolishly agreed to help her. The Complainant did not stand to benefit personally. At lunchtime on Friday, 5th January 2018 at the purported meeting for the sale of the cigarettes, it transpired the girl in question was in fact a member of the Respondent’s custom’s staff. The Complainant was asked a number of questions by members of the Respondent’s customs staff. He answered all the questions openly and honestly. He acknowledged the cigarettes did not have duty on them and outlined the circumstances set out above.

On Monday 8th January 2018 the Complainant was approached by employees of the Respondent requesting a meeting for information purposes. Again, the Complainant answered the questions asked openly and honestly.

Later, the incident was brought to the attention of the Complainant’s Personnel Officer, Mr P. Mr P, having satisfied himself of the seriousness of the matter, determined to initiate an investigation and appointed himself as decision maker. Mr P then determined an investigation was unnecessary as his notes indicate that he was “satisfied that the key relevant facts had been established” before meeting with the Complainant. On 10th January 2018, the Complainant was invited to a meeting under the disciplinary code but was not informed that it was a disciplinary hearing.

On 17th January 2018, Mr P met with the Complainant who was accompanied by his local union representative. The Complainant was informed it was a disciplinary hearing. Again, the Complainant answered the questions asked of him openly and honestly. For example, the Complainant accepted the circumstances outlined above, he accepted honesty and integrity were expected of the Respondent’s staff, the loss to the Exchequer and that aiding and abetting a crime is a crime. The Complainant explained he did not consider the full consequences of his actions, the chance of anything similar happening again was nil and that the embarrassment, stress and chastisement he had suffered already were of considerable distress to him. The Complainant explained he was anxious not to jeopardise his position or to cause any damage to the Respondent’s image. Notably, the Complainant was asked what would other Heads of Division in the Respondent’s staff think if he was reassigned to them? All of the questions put to the Complainant by Mr P were aggressive and accusatory in nature. No questions were asked regarding mitigating factors. Mr P asserts that prior to the meeting he discussed the disciplinary meeting with Mr D in depth. Mr P discussed the possible sanctions with Mr D. No discussion of the possible sanctions is contained in Mr P’s report or the role of Mr D in determining the case as against the Complainant. However, the hearing appears to be pre-determined having regard to the relevant facts and the possible sanctions having already been concluded in advance of the hearing.  

Mr P had already determined the allegations were serious and required an investigation.

He then determined the “key relevant facts”. He concluded it was very serious. He then discussed the matter with a colleague including potential sanctions. He took these steps before meeting the Complainant. At the meeting he falsely contended that the Complainant was selling the cigarettes. He then recommended the dismissal of the Complainant by report dated 19 January 2018.  

By email dated 5th February 2018 the Complainant appealed setting out the grounds for his appeal as follows:

1.       The provisions of the disciplinary code were not adhered to.

2.       All relevant facts were not ascertained.

3.       All relevant facts were not considered or considered in a reasonable manner.

4.       The Complainant was not afforded a reasonable opportunity to answer any allegation, suspicion or other concern about him.

5.       The disciplinary action was disproportionate to the conduct alleged.

The Complainant detailed the grounds outlined above in his appeal notice. The grounds were not repeated by the Appeals Board in its findings as the Appeals Board determined that no prejudice was suffered by the Complainant by the Respondent’s failure to comply with the provisions of its own disciplinary code. The willingness of the Appeals Board to forgive errors on the part of the Respondent at first instance on the basis the prejudice arising from the mistake was notional is noteworthy given its consideration and treatment of the Complainant’s mistake and the notional prejudice arising therefrom. Further, the Respondent’s failure to adhere to its own procedures relate in part to Mr P acting as Investigator and Decision Maker and were made before

Mr P advanced the Respondent’s case before the Appeal Panel.

Thereafter, the Complainant received a court summons returnable for a District Court on 1st June 2018. Consequently, and having regard to its bearing on the facts of the incident resulting in the dismissal, the Complainant asked for the Respondent’s disciplinary Appeals Board to consider his appeal after the criminal proceedings had concluded. On 30th May 2018, the Complainant was informed by his Union that his Union would not represent him at the appeal hearing. He was also informed the appeal would be heard on 15th June 2018.

On 1st June 2018, the criminal proceedings were listed for hearing on 6th July 2018. On 6th June 2018, the Complainant directly requested a deferral of the appeal. No reply was received. On 11th June 2018, the Complainant followed up his earlier request with another email.

The Complainant was not informed by the Appeals Board that the hearing was going ahead but was informed by his Union Representative that the adjournment request had been refused. The Complainant had already engaged a solicitor for the purposes of his appeal but was advised time was required to prepare for the appeal hearing.

On 12th June 2018, the Complainant’s union representative provided the Complainant with confirmation of the refusal. Again, the Complainant was not informed of same by the Appeals Board.

On 13th June 2018, the Complainant requested a deferral of the appeal hearing as he had only been advised on 11th June 2018 the hearing was proceeding on 15th June 2018 and time was required for his solicitor. Further, the Complainant had been informed on 30th May 2018 of the date for the Appeal Hearing.

On 14th June 2018 the Complainant received a response from the Appeals Board that the appeal would proceed on 15th June 2018 and he would be allowed the facility of representation by a solicitor.

At the hearing on 15th June 2018, the Respondent was invited to again move his adjournment application. The Complainant detailed the circumstances set out above again for the Appeals Board. On this occasion, the unrepresented Complainant was opposed by the Respondent (as represented by a three-person panel including Mr P).

Given the circumstances outlined above, the refusal of a deferral of the hearing effectively denied the Complainant’s right to representation notwithstanding a wish for representation in the most serious context of an appeal of a determination to dismiss.

The Appeals Board refused to adjourn the appeal on the basis the Complainant had prepared detailed written submissions. It is respectfully submitted that written submissions prepared by a layperson do not match an appropriately qualified and experienced representative at a hearing before a three-person tribunal being opposed by a three-person panel for one’s employer including the decision maker at first instance. This bears particular importance when the grounds for one’s appeal includes a failure on the part of the decision maker at first instance to a) ascertain all relevant facts, b) to reasonably consider all relevant facts, and c) a failure to apply a proportionate outcome. Mr P made the case for the Respondent in standing over his own decision to dismiss. In making the case for the Respondent and standing over his own decision he said it was not relevant what occurred in other departments of the Respondent. He referred to matters which were not previously discussed with the Complainant or detailed in his initial report thereby extending and expanding his reasons for dismissing the Complainant. In his submission to the Appeals Board, he made no reference to the mitigating aspects which one would normally expect a decision maker to consider. In reply, the Complainant referred to the myriad of other potential sanctions which could have been applied by the Respondent.

The Appeals Board proceeded with the appeal and duly upheld the Complainant’s dismissal. Had the Complainant been represented a considerable mitigating factor could have been referenced which does not appear to have been considered to the effect that the evidence against the Complainant was solely the Complainant’s evidence; there being no evidence required of the customs officials. Further, to the knowledge of the Respondent’s officials present at the hearing a similar event had only happened once before to an entry level grade officer who had not been dismissed.  

An appropriately qualified and experienced representative for the Complainant could have pointed out that the Appeals Board’s interest in whether the Complainant had reported the incident to his own line manager had not been an enquiry taken by Mr P in his initial determination. Further, no evidence had been heard from the line manager yet it appears Mr P was in a position to give hearsay evidence that the Complainant’s line manager was expecting to hear from him on 8th January. Mr P expanded on the hearsay evidence by claiming the line manager had given the Complainant an opportunity to come to him before inviting him to a meeting thereby inferring the Complainant had intended to keep the matter which had occurred less than one working day beforehand secret and to himself. Of course, the Complainant did not challenge this evidence as he was not trained to do so, nor did he make submissions in respect of same when a challenge may have influenced the Appeals Board given the Complainant had referred to Mr P and “hyperbole” during the course of the hearing.

Further, a suitably qualified and experienced representative could have explained to the Appeals Board that the Respondent’s failures to provide a two-stage process of investigation and decision making cannot be remedied simply by pressing the lay Complainant to assert the prejudice suffered as a result of the Respondent’s failure. It is respectfully submitted the Appeals Board cannot remedy the Respondent’s failures to follow its own procedures.

The Appeals Board determined that the relevant facts in the case had been ascertained and considered in a reasonable manner. It does not appear to have occurred to the Appeals Board that all of the relevant facts came from the Complainant himself and there was certainly no consideration or mitigation applied for same. In addition, the Appeals Board merely stated they considered mitigating factors. There is no discussion of the mitigating factors or the weight applied to them. The Board concluded no other sanction was appropriate or “any other sanctions under the code which they would be happy to recommend in lieu of dismissal” notwithstanding that the only evidence before the Appeals Board of a similar incident did not result in dismissal. In fact, the Appeals Board concluded the most serious sanction available was “more than reasonable”.

Legal Arguments

The Complainant submits that the Respondent’s decision to dismiss the Complainant was not reasonable in the circumstances. It is submitted that the Respondent breached the Complainant’s right to fair procedures and natural justice in the following ways:

•        Mr P self-appointed himself as investigator before deeming an investigation unnecessary because the key relevant facts were established. It transpired he had wrongly determined the Complainant had been selling the cigarettes. Had a two-stage process been provided by the Respondent, as envisaged by its procedures, the decision maker would not have been under any misapprehension. It is not possible to say whether Mr P was affected by his wrongly held belief that the Complainant was selling cigarettes for his own benefit. However, had the correct procedures been applied such a difficulty would not arise and it is respectfully submitted standard procedures for serious allegations include a two-stage process to avoid the exact circumstance arising herein. A two-stage procedure is particularly important for serious allegations which do not go through the typical progressive system of verbal warnings, written warnings, etc.

•        The same person conducted the investigation and was the decision maker at first instance before appearing for the Respondent in the Appeal with the effective result that the case against the Complainant was prosecuted on appeal by the decision maker who had determined it at first instance. It is respectfully submitted that the entire process initiated by the Respondent suffers a fatal flaw in that each stage of the disciplinary process (investigation, decision making and appeal) includes Mr P. Each stage is not a truly independent consideration of the evidence and the Complainant’s circumstances. There is insufficient separation between the disciplinary stages. The Appeal itself was not a truly independent consideration of the determination at first instance as the decision maker at first instance was in a position to outline his own decision-making process and expand upon same (which he clearly did by referring to matters which were not previously referenced or given in evidence such as the evidence provided by Mr P regarding the Complainant’s line manager). The disciplinary process falls far short of the process envisaged by S.I. 146/2000.

•        The Complainant was effectively denied the right to representation at the hearing having regard to his Union’s decision not to represent him 16 days before the hearing and the refusal of an adjournment communicated to him 4 days before the hearing. A further immediate and desperate request was denied only for the Appeals Board to go through the process of considering the adjournment application for a third time at the hearing (having already refused same twice). It is respectfully submitted the application for an adjournment at the hearing was merely for the purposes of appearing to comply with the provisions of natural and constitutional justice and in fact was predetermined and perfunctory. A suitably qualified and experienced representative for the Complainant could have challenged the decision maker’s evidence (including hearsay and expanded reasoning) to such an extent that the determination of the Appeals Board may have been different and the Complainant has been prejudiced thereby.

•        It is respectfully submitted an employer must be able to show why a sanction short of dismissal would not have sufficed in the particular case. In this context, it is important

to reflect on the reality that several alternative sanctions are open to an employer which can both punish an employee, send a clear message as to the position that the employer will adopt in relation to such wrongdoing, and arguably protect the employer given that the sanctioned employee will be vulnerable to dismissal for any further offence. An example of such a sanction is suspension without pay, which clearly contains a strong punitive element for the employee which the Supreme Court is described as a

“significantly less Draconian measure” then dismissal (Berber v Dunnes Stores [2009] ELR 61, per Finnegan J at 73)

‘The decision to dismiss is the ultimate sanction an employer can take against an employee. Dismissal has substantial ramifications for an employee and a decision to dismiss should only be taken as a last resort, where no other sanction is possible or suitable.’ (An Employee v An Employer (ADJ 0000381, 12 April 2017)

In this matter, there are a large number of mitigating factors including:

i.    The Complainant’s years of service; ii.   The Complainant’s unblemished record;

iii. The Complainant’s role in the wrongdoing;

iv. The Complainant’s admissions from the outset;

v.   The Complainant did not attempt to cover up his conduct or deny it;

vi. The Complainant’s admissions constituting the case against the Complainant;

vii. The Complainant’s cooperation with the investigation;

viii. The errors made in the Respondent’s investigation in breach of its own procedures;

ix. The Complainant’s regret, remorse and apology for the incident;

x.   The Complainant’s suspension from work;

xi. The Complainant’s embarrassment, stress and anxiety;

xii. The Complainant’s assertions that no further wrongdoing will arise;

xiii. The treatment of the Respondent’s other employee who received a lesser sanction for a similar offence.

Having regard to the large number of mitigating factors, it is respectfully submitted the decision to dismiss was unreasonable as there is no apparent consideration of the mitigating factors or consideration of sanctions short of dismissal.

The Complainant gave direct evidence at the hearing.

The relevant law

The Unfair Dismissal Act, 1997 stipulates that:Section 6(1) ”Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.”

Section 6(4) “Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following: ...

(b) the conduct of the employee,…”

Section 6(6) imposes the burden of proof on the employer to show that the dismissal was fair and Section 6(7) provides for an Adjudication Officer to have regard to “(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and (b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14 (1) of this Act (to provide written reasons when requested) or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7 (2) of this Act.”

In The Governor and the Company of Bank of Ireland -v- James Reilly (2015) IEHC 241, Mr Justice Noonan elaborated on what was required by Section 6 of the Unfair Dismissals Acts as follows: “It is thus clear that the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s. 6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the employer's conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned - see Royal Bank of Scotland v. Lindsay UKEAT/0506/09/DM.” It is also well established that an employee has a contractual, constitutional and statutory entitlement to fair procedures. (See Re: Haughey (1971) IR 217). In particular, S.I. No. 146/2000 - Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures) provides that employers should have written procedures for dealing with disciplinary issues reflecting the varying circumstances and complying with the general principles of natural justice and fair procedures.

My role is not to conduct a further factual investigation and substitute my own judgment for that of the employer but rather to objectively assess whether the decision to dismiss the employee was reasonable for that particular employer in the circumstances.

Dismissal as a fact is not in dispute and so therefore it is for the Respondent to establish that in the circumstances of this case the dismissal was fair. The Respondent contends that the Complainant was dismissed on the grounds of gross misconduct after he was caught red-handed delivering contraband cigarettes. The Complainant argues that the dismissal was unfair due to procedural shortcomings and that the decision to dismiss was unreasonable.

I note that the Complainant argued that there was a number of procedural irregularities in the processes carried out by the Respondent. The Complainant claimed that Mr P “self-appointed himself as investigator before deeming an investigation unnecessary because the key relevant facts were established”. At the hearing, the Complainant’s representative put quite a lot of emphasis on the length of Mr P’s service in his role and potential lack of experience. I find that Mr P is the Head of HR within the Respondent with a wide range of experience in other roles throughout his career which he outlined in detail in cross-examination. I find that it is not plausible to argue that the person in charge of the HR within the Respondent’s organisation is not sufficiently qualified to deal with a disciplinary matter within the organisation.

The Complainant further alleged that Mr P deemed an investigation unnecessary because the key relevant facts were established. I note that in “Redmond on Dismissal Law”[1] [16.14] pages 353-354 Dr D. Ryan states: “Where an employee admits to dishonest conduct self-evidently it will not be necessary for an employer to embark upon the sort of investigation that would be necessary if reasonable grounds were needed to confirm its suspicions. However, it will still be advisable to allow an employee the opportunity to show cause as to why the employer should not dismiss. This will enable the employer to form a view on the reasonableness of its decision to dismiss in the light of all the circumstances.” As a footnote to this paragraph the author cites the decision in The Royal Society for the Protection of Birds v Croucher [1984] IRLR 425a case of admitted, serious dishonesty concerning expenses by one of the directors of the Society. The EAT in John Lewis PLC v T.L. Coyne EAT/581/99 accepted that that is authority for the proposition that there may be cases of admitted dishonesty in which it is not incumbent upon the employer to give the employee a warning or carry out a detailed investigation before deciding that the employee should be dismissed. The EAT in detail reviewed the matter of dishonesty:” In summary, there are two aspects to dishonesty, the objective and the subjective, and judging whether there has been dishonesty involves going through a two-stage process. Firstly, one must first of all decide whether according to the ordinary standards of reasonable and honest people what was done dishonest? Secondly, if so, then one must consider whether the person concerned must have realised that what he or she was doing was by those standards dishonest. In many, but not all, cases where actions are obviously dishonest by ordinary standards, there will be no doubt about it.” It is my view that that being involved in the delivery of contraband cigarettes for sale would be considered “dishonest” by any standard and a reasonable employer would be entitled to regard what the Complainant admitted to doing as dishonest. I find that for the reasons outlined above it would be reasonable for the Respondent not to adhere to the standard disciplinary procedure.

Having said that, I note that the Complainant was invited to a meeting with Ms L, Principal Officer and Ms D, Assistant Principal (note taker) on 8th January 2018. Ms L clearly advised the Complainant that the “meeting was for information purposes only”. At the meeting the Complainant confirmed that he had been detained with cigarettes, which had not been stamped for customs and excise purposes. The Complainant was given a copy of the Code of Ethics and copy of the email from the Special Compliance Unit. The Complainant was given an opportunity to explain the matter. Ms L advised the Complainant that she would not adjudicate on the matter and that she will bring the matter to the attention of Assistant Secretary of relevant division and to Corporate Services Division. I note that the Complainant by his own evidence contacted his trade union after this meeting as “he knew it’s going to be disciplinary matter”.

The Complainant was subsequently invited to a meeting with the Principal Officer, Mr P on 17th January 2018. The Complainant was accompanied by his trade union official. I find the Complainant’s assertion that the trade union official was not “not equipped” to deal with the matter implausible. The Complainant confirmed that he did not make a complaint to his union in respect of any deficiencies in the trade union official’s representation.

In relation to the Complainant’s assertion that he did not expect the meeting to be a disciplinary meeting, I find that the email of 11th January 2018 inviting him to the meeting outlines that “The purpose of the investigation is to determine the veracity of the allegations of impropriety on your part and any disciplinary sanction warranted.” It goes on to say, “The outcome of this disciplinary process may be disciplinary action”. Moreover, the minutes of the meeting show clearly that at the outset the Complainant as advised that this was a “disciplinary meeting within the provision of the Civil Service Disciplinary Code”. It is therefore my view that the Complainant was fully aware of the purpose of the meeting on 17th January 2018.

In respect of the Complainant’s assertion that Mr P conducted the investigation and was the decision maker at first instance I find that, as per my findings above, the facts were established by the Customs Officers and during the initial meeting with Ms L and Ms D. The meeting with Mr P was a disciplinary meeting with the purpose, as per the minutes, to ask questions, to determine the veracity of the allegations of impropriety; to provide the Complainant with an opportunity to respond and then to consider whether further action including whether any disciplinary sanction is warranted. I find that there was sufficient separation between the two stages of the process.

In relation to the assertion that the Complainant was denied the right to representation I find that the Complainant was represented by his trade union until the appeal stage. The appeal was scheduled for 15th June 2018 and on 30th May 2018 the Complainant was informed by his union that it would not represent him at the appeal hearing. I note that Complainant sought legal advice in late April 2018. The matter of legal representation has been addressed in a decision from the Court of Appeal in the case of Iarnrod Eireann/Irish Rail and Barry McKelvey – 2018 IECA 346 in which the Court emphasized that employees who are the subject of internal disciplinary inquiries will not normally be entitled to have legal representation during such inquiries.

It is clear from this decision that a disciplinary process is not rendered unfair by a refusal to allow an employee legal representation in the conduct of the disciplinary hearing or investigation. Such a requirement could only arise in exceptional cases involving issues of factual or legal complexity which could not be adequately addressed without the assistance of a lawyer. I do not believe that this was the case in the Complainant’s instance. The Complainant did not deny or dispute the events in question. He signed the contemporaneous notes of the Customs Official at the time of event. He confirmed the events at the meetings on 8th January 2018 and 17th January 2018. I also note that the Complainant was not denied legal representation at the appeal hearing. Rather, his legal representative was not available to attend the hearing on a scheduled day.

The Complainant asserted also that the decision to dismiss was unreasonable and that no consideration was given to the mitigating factors as listed above in the Complainant’s submission. Firstly, I note that the Complainant argued that Mr P could have been affected by “his wrongly held belief that the Complainant was selling cigarettes for his own benefit”. I find that the matter was clarified at the meeting on 17th January 2018 when it was agreed that the Complainant had been in possession of the cigarettes and had been seeking to exchange them for money on behalf of his girlfriend. It is therefore my view that Mr P had a clear understanding of the Complainant’s role in the matter.

I find that the Complainant was a member of the Respondent’s audit team. Trust and confidence is essential in all working relationships. There is an implied term in every contract of employment that requires both employers and employees to refrain from behaving in such a way as to destroy the relationship of trust and confidence. The Respondent, particularly given its role, placed the highest level of trust and confidence in the Complainant. The Complainant was well aware of this trust and through his actions breached that trust with the Respondent. As a consequence of his actions, the Respondent had every entitlement to lose confidence and trust in him. The Complainant was caught delivering contraband cigarettes for sale in clear breach of the Respondent’s policies and the law. I find the Complainant’s assertion at the hearing that the customs officers “are doing dirt on him” and “threw him under the bus” astonishing. It appears that the Complainant does not fully comprehend the seriousness and the consequences of his actions. I am therefore not persuaded by the Complainant’s assertion that no further wrongdoing would arise in the future. Having regard to the evidence adduced, I am satisfied that the Complainant’s role requires a great level of trust and integrity which is of paramount importance. I am satisfied that such a breach of rules as in the instant case could have very serious implications and cause reputational damage for the Respondent. I am satisfied that the Complainant was aware of the importance and significance in terms of compliance with the Respondent’s procedures, and indeed the law, and of the potential disciplinary sanctions, up to and including dismissal, for any breaches. I find that the Complainant’s actions clearly constituted a breach of the Respondent’s policies which amounted to gross misconduct. I find that the actions of the Respondent were within the range of reasonable responses open to it and that substantial grounds did exist to justify the Complainant’s dismissal. Accordingly, I find that the Complainant was not unfairly dismissed by the Respondent within the meaning of Section 6 of the Unfair Dismissals Acts. Accordingly, I find that the Complainant’s claim is not well founded.    

For the reasons set out above, I find that the complaint made pursuant to the Unfair Dismissals Act is not well founded.

Unfair dismissal – breach of trust – contraband cigarettes