UDD2125

1.Appeal of Adjudication Officer Decision No(s). ADJ-00018226 CA-00023392-001.

BACKGROUND:

2.The Employee appealed the Decision of the Adjudication Officerto the Labour Court on 24 June 2019 in accordance with Section 8(A) of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on in a virtual setting on 9 December 2020 and 4 March 2021. The following is the Determination of the Court:

DETERMINATION:

This matter comes before the Court as an appeal by Colm Keane (the Appellant) of a decision of an Adjudication Officer made in his complaint made under the Unfair Dismissals Act,1977 (the Act) against his former employer, the Revenue Commissioners (the Respondent).

The Adjudication Officer decided that the within complaint was not well founded.

Background

The Appellant was employed by the Respondent from 2007 until his dismissal on 25^thJuly 2018. He was employed as a Higher Executive Officer and his work included the conduct of Revenue audits.

It is common case that the Special Compliance Branch staff of the Respondent responded to a social media advertisement offering cigarettes for sale. On the 5^thJanuary 2018 officers of the Respondent seized 400 cigarettes from the Appellant who had delivered them. The cigarettes in question did not carry an Irish Tax Stamp.

The Appellant was the subject of a disciplinary procedure including an appeal of a decision to dismiss him as a result of this event.

Summary position of the Respondent

The Respondent submitted that as the tax collector for the State it largely relies upon voluntary compliance which depends on strict adherence to relevant rules together with honesty and integrity in self-assessing tax liability. The adherence to rules and the reliability and integrity of both the taxpayer and Revenue Officials are of paramount importance.

The Appellant’s, as a Higher Executive Officer for Revenue, was as part of an Audit team in which it was his job to confront non-compliance with Revenue rules. In addition, he was subject to the Civil Service Code of Standards and Behaviour and to the Revenue Code of Ethics.

Serious misconduct as defined in the disciplinary code of the Respondent is a basis for dismissal and includes engaging in prohibited conduct, disrespecting the law, bringing the Revenue into disrepute and breach of trust and confidence. The Appellant was dismissed for serious misconduct as defined by the disciplinary code and that his actions breached Revenue’s Code of Ethics, compromise his standing within Revenue and potentially imperil Revenue’s good reputation.

The Appellant involved himself in the sale of contraband cigarettes contrary to the Finance Acts and Revenue rules which are a specific area of legislation and were rules that he was employed to safeguard.

The Appellant has contended that the procedures followed by the Respondent in dismissing him were flawed in that he was entitled to a separate and distinct investigation and disciplinary process and while he points to a rule of procedure of the Respondent which might be read as a requirement in this regard, he does not say what prejudice arose from a unitary process in his case. The Appellant seeks to read the Civil Service Disciplinary Code like a statute. In this case the facts were not complex and no separate investigation was required.

The Respondent submitted that, whereas the Code of procedure provides that wherever “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 hearing” this provision, read in a manner consistent with non-statutory interpretation, refers to two scenarios and can be read disjunctively rather than conjunctively.

The Appellant did not demonstrate an appreciation of the significance of his misconduct and is in denial. This was a view also formed by the decision maker in relation to his dismissal.

The decision maker, Mr A.P. was the Personnel Officer of the Respondent and he gave testimony on behalf of the Respondent. He had accepted throughout the process that the Appellant did not stand to gain financially from his misconduct but concluded that the admitted actions constituted serious misconduct. The Appellant had not appeared to accept the breach of ethics which had been involved in his conduct and demonstrated no insight in relation to the seriousness of the matter. He had presented no mitigating factors to be taken into account.

Summary position of the Appellant

The Appellant submitted that he had returned from Poland with his girlfriend where his girlfriend had purchased three cartons of cigarettes. On return, the girlfriend had offered two cartons of these cigarettes for sale on social media. A potential buyer responded and the girlfriend asked the Appellant to deliver the cigarettes to said potential buyer. In fact, the apparent potential buyer was staff of the Respondent engaged in customs work. He was aware that the actions of his girlfriend were unlawful but nevertheless had agreed to pass on the cigarettes on her behalf.

He did meet with staff of the Respondent on 8^thJanuary which was a meeting he understood to have the purpose of conveying information to him.

The Respondent’s Personnel Officer, Mr A.P., having been informed of the matter, decided that the matter was of such importance that it merited an investigation and appointed himself as the investigator. Mr A.P subsequently met with the Appellant on 17^thJanuary. The invite to that meeting advised the Appellant that the meeting amounted to an investigation. No investigation was ever carried out. The Appellant was dismissed on 19^thJanuary.

The Appellant submitted that the decision to dismiss him was taken without the investigation required by the disciplinary code and followed a meeting which was not advised to the Appellant in advance as a disciplinary meeting.

The decision to dismiss was appealed by him to the Disciplinary Appeals Board. That Board conducted itself in relation to an application he had made for an adjournment in a manner which resulted in depriving him of legal representation. At the hearing of the Appeals Board Mr A.P acted as advocate upholding his own decision to dismiss. The Appeals Board made no attempt to establish facts independently of the two parties in dispute.

The Appellant gave testimony to the effect that he had not understood that the meeting he attended with Mr A.P on 17^thJanuary was in fact to be a disciplinary meeting. He was not aware of the sanction being considered and he had believed that a lower sanction than dismissal would apply. Two weeks in advance of the Appeals Board hearing he was advised by his Trade Union that it would not represent him. The Appeals Board did not allow him to postpone the scheduled hearing so as to allow him time to secure legal representation.

Relevant law

The Act at Section 1, in relevant part, defines dismissal as follows:

“ dismissal”, in relation to an employee, means—

(a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

Section 6(1) of the Act makes provision as follows:

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 7 of the Act, in relevant part, provides

7. (1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court , as the case may be, considers appropriate having regard to all the circumstances

(a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or

(c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances, or

(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances,….

(2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—

(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

(b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee,

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid, …..

(f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.

There is no dispute between the parties that the Appellant, a senior Revenue official, participated in and facilitated an exercise involving the supply of cigarettes which did not carry the appropriate Irish Tax Stamp. The Respondent ultimately decided that the Appellant should be dismissed for serious misconduct. The Court can accept that the Respondent, being the body responsible for tax compliance and collection in the State, would reasonably regard the events which occurred involving the Appellant as serious and very significant.

The procedures employed by the Respondent to arrive at the decision to dismiss have been carefully considered by the Court in the context that, notwithstanding the fact that the Appellant admitted the fundamental facts of the matter at the outset, an obligation rested upon the Respondent to ensure that any disciplinary procedure was conducted with full regard to the requirements of natural justice and fair procedure.

Following the landmark decision on the Constitutional right to fair procedures in In Re Haughey [1971] 1 IR 271, the application of that right in an employment context was considered in Glover v BLN Ltd [1973] IR 388. Here, a question arose as to whether the plaintiff’s dismissal was rendered wrongful at common law by the defendant’s failure to afford him a fair opportunity to defend himself against charges of gross misconduct. It was submitted on behalf of the defendant that since the evidence of wrongdoing on the part of Mr Glover was so overwhelming the absence of a fair hearing on the charges against him made no practical difference to the result.

That submission was emphatically rejected by the Supreme Court. Walsh J stated: -

“The obligation to give a fair hearing to the guilty is just as great as the obligation to give a fair hearing to the innocent”

This case arose from a serious dispute within a constituency association of the British Labour Party. A number of individuals had been expelled from the party, including a Member of Parliament, following an outbreak of violent disorder at a meeting of the Party. The case concerned, inter alia, the obligation on the National Executive of the Party to apply fair procedures before expelling members of the Party. The Judge said: -

As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change.

In the within matter, the Court has heard from the parties as regards the conduct of the procedures employed in order to arrive at the point of dismissal. The employment concerned is the subject of a comprehensive range of disciplinary procedures set out in a document entitled Civil Service Disciplinary Code. Those procedures provide that the disciplinary process should commence with an investigation to establish the facts. The procedure states as follows:

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.

In all other cases, an investigation will be completed prior to any disciplinary meeting taking place

In all other cases, for example where the facts are complex or where there is a possibility that serious misconduct may have occurred, the matter should be referred to HR to initiate an investigation …

…in cases where the matters being investigated are complex and / or serious , the application of those principles will normally mean that the investigation will be more formal and will be governed by clear terms of reference.

According to his report dated 19^thJanuary 2018 wherein he recorded his decision to dismiss the Appellant, the Personnel Officer advised the Appellant by e-mail dated 9^thJanuary 2018 that he considered the allegations made against the Appellant were potentially of concern and may require investigation under the disciplinary code. He later records that he as Personnel Officer should carry out the investigation.

The Personnel Officer, having met with the Appellant on 17^thJanuary 2018, came to decision that the Appellant should be dismissed. The report of the Personnel Officer recorded that the reasons for the dismissal were that:

 The Appellant’s actions represented a clear contravention of the standards expected of Revenue staff as set out in the Revenue Code of Ethics

His behaviour may harm the revenue’s reputation and bring the organisation into disrepute

 Having served with Revenue for over 10 years, the Appellant knew or ought to have known that his actions conflicted with his duties as a revue dismissal.

The Report of the Personnel Officer makes clear that he considered himself to be carrying out an investigation under the Disciplinary Code. The Report also makes plain that the procedure followed resulted in the Personnel Officer making the decision to dismiss. There is, consequently, an inescapable conclusion that the Personnel Officer was the person who purported to conduct an investigation under the Disciplinary Code and also the person who took the decision to dismiss as a result of what is described as an investigation. That investigation appears to have also comprehended the essential characteristics of a disciplinary hearing which had the potential to result in the dismissal of the Appellant. The Court can find no basis in the disciplinary code of the Respondent to support this procedural pathway.

The Court takes into account the provisions of S.I. No. 146/2000 - Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) which emphasises the importance of ensuring that an employee is aware of any disciplinary procedure which is initiated in respect of her or him and to know any case being made against her or him.

In the within matter the Court has concluded that the conduct of the procedure was at variance with the written disciplinary code of the Respondent. In addition, if the procedure carried out by the Personnel Officer did indeed incorporate both an investigation process under the code and a disciplinary process leading to dismissal, the Court must conclude that such a conflation of functions in a matter involving potential dismissal of the Appellant is unfair. The Court is fortified in this conclusion by the fact that the code itself emphasises the importance of a clear investigative phase where the alleged misconduct at issue is of a serious nature.

In the event the Appellant, as was his entitlement under the Code, made an appeal of the decision to dismiss him to the Civil Service Disciplinary Appeals Board. The Disciplinary Code makes provision for a counter statement by the relevant manager to the Appeals Board. In this case the relevant Manager was the Personnel Officer who made the decision to dismiss. The counter statement made to Appeals Board amounted to a full and comprehensive rebuttal of all elements of the Appellant’s appeal. In effect the decision maker in the decision to dismiss made a comprehensive submission to the Appeals Board which went far beyond providing the Board with a copy of the relevant documentation including reports and minutes of meetings and hearings.

The Report of the Appeals Board demonstrates that the Personnel Officer was the lead representative of the Respondent before the Board and made several oral submissions as the hearing progressed. No other official of the Respondent appears to have made a submission to the Appeals Board.

The Court is concerned that the procedure of the Appeals Board was such as to place the Appellant in opposition to the person who made the decision to dismiss him. That decision to dismiss had been supported at the time it was made by a comprehensive report from the decision maker, the Personnel Officer. The decision maker was then facilitated, as set out in the procedure, to make a counter statement to the appeal. In the within matter that counter statement amounted to a full submission to the Appeals Board. In addition, the decision maker attended the hearing of the Appeals Board as lead representative of the Respondent in which role he made extensive oral submissions on behalf of the Respondent.

The Court, having reviewed the entire process including the appeals process, has come to the conclusion that the lack of a clear separation of the roles of investigation, disciplinary and appeal has created a fatal vulnerability in the processes employed to address the matter of the allegations made against the Appellant.

For that procedural reason the Court concludes that the dismissal of the Appellant was unfair.

Having reached that conclusion, the Court is required under the terms of the Act to consider the appropriate form of redress. The Court, having regard to the underlying and undisputed facts of the matter, does not consider that re-instatement or re-engagement would be appropriate in this instance. Therefore, the Court must consider an award of compensation.

The Court has noted the submission of the Appellant wherein he confirmed that he had made no substantial effort to mitigate his financial loss by way of attempting to secure employment. The Court has, as is required by the statute, in considering the amount of compensation which is just and equitable in all of the circumstances, taken into account the measures adopted by the Appellant or, as the case might be, his failure to adopt measures to mitigate his loss.

In addition, the Act requires the Court, in determining the amount of compensation payable to the Appellant, to take into account the extent to which the conduct of the Appellant contributed to his dismissal. The Court has concluded that the conduct of the Appellant contributed to the extent of 100% to his dismissal

Determination

The Court has determined, for the reasons outlined above, that the Appellant was unfairly dismissed. The Court, having taken account of the Appellant’s failure to mitigate his financial loss and the extent to which his conduct contributed to his dismissal, decides that the amount of compensation which is just and equitable having regard to all of the circumstances is nil.

The decision of the Adjudication Officer is set aside

The Court so decides.

	Signed on behalf of the Labour Court
	Kevin Foley
TH	______________________
14 April 2021	Chairman