ADJUDICATION OFFICER DECISION.

Adjudication Reference: ADJ-00026339

Parties:

	Complainant	Respondent
Anonymised Parties	An Office Worker	A Government Department

Representatives

Mark O’Connell BL, instructed by Leo Fay , Solicitor, of Michael J Kennedy & Co

Elizabeth Donovan BL instructed by Chief State Solicitor's Office

Complaint:

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00033572-001	09/01/2020
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00033578-001	09/01/2020
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00033609-001	09/01/2020

Date of Adjudication Hearing: 20/10/2020

Workplace Relations Commission Adjudication Officer: Michael McEntee

Procedure:

In accordance with Section 8 of the Unfair Dismissals Acts, 1977 – 2015following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

At the commencement of the Oral Hearing on the 20th October 2020 it was agreed that CA-00033572-001 was the principal claim. CA-00033578-001 and CA-00033609-001 were not being proceeded with as they were both duplicate complaints to the principal complaint.

A major Legal Point concerning the Standard of Proof required was raised during the Hearing.

Supplemental Legal submissions were invited from both Parties and received during November 2020

Background:

The issues in contention concern the alleged Unfair Dismissal of an Office Worker by a Government Department. The employment began in February 2001 and ended with Dismissal on the 5th December 2019.

1: Opening Legal Arguments – Level of Proof required.

1:1 Background.

By way of background the Complainant was dismissed for serious misconduct from a Civil Service clerical position in a high profile, ultra-high security State Service. Despite all guarantees of confidentiality, it was strongly argued by the Complainant’s Legal Advisor that it is virtually impossible to keep this dismissal a private matter. The re-employment prospects for the Complainant will be challenging, if not to say, bleak. It was alleged to be a “doomsday” situation for the Complainant. He was effectively unemployable.

1:2 The Legal question raised – Burden of Proof in an Employment “Doomsday” situation.

1:2:1 The Complainant position/Arguments – the “Third” Level of Proof

The Complainant’s Legal Team argued that in a “doomsday” situation, such as this, a much higher standard of proof is required of an employer. A simple reliance on a Civil standard of “Balance of Probabilities” is not appropriate rather a formula closer to the Criminal standard of “Beyond all Reasonable Doubt” is required. This was referred to by the Complainant’s Legal team as “the third or intermediate standard of proof”

The issue had particular relevance to this case as the major investigation relied upon by the Respondent was based on conclusions derived on a Balance of Probability basis. The Complainant argued that these conclusions were not legally sound and fell short of a required high standard of natural justice and fair procedures. The flawed conclusions fatally impugned the entire Dismissal process.

Legal precedents from the cases of Georgopoulos v Beaumont Hospital Board [1993] ELR 246 and Kelly v Minister for Agriculture [2012] IEHC 558 were cited as supportive of the case. It was advanced that Mr. Justice Hedigan in the Kelly case referred to above had accepted that where an employee faces a threat of dismissal, his or her employer will “need to prove guilt on the basis of ahigher degree of probability.”

In this case and in view of the background which would never be capable of being kept confidential the Dismissal was a Doomsday decision for the Complainant. In this context a reliance on a simple Balance of Probabilities formula to justify a Dismissal which would have profound consequences for the Complainant was in itself a gross injustice.

1:2:2 The Respondent position on the Burden of Proof.

The Respondent Legal team strongly contested the concept of a “Third level of Proof” and cited considerable case law from the Irish Supreme Court. The cases of Banco Ambrosiana SPA v Ansbacher and Co Ltd, [1987] ILRM 669, Georgopoulos v Beaumont Hospital Board [1993] ELR 246 and Hazel Lawlor v The Planning Tribunal [2010] IR 270 were advanced in support.

In summary these Supreme Court cases did not find in favour of an intermediate “Third level of Proof” between the Civil Balance of Probability and the Criminal Beyond Reasonable Doubt.

In an Employment context the comments of Finlay CJ in the Banco Ambrosiana case were advanced by the Respondent.

If, as has been suggested, the degree of proof of fraud in civil cases is higher than the balance of probabilities but not as high as to be (as is required in criminal cases) beyond reasonable doubt, it is difficult to see how that higher degree of proof is to be gauged or expressed. To require some such intermediately high degree of probability would, in my opinion, introduce a vague and uncertain element, just as if, for example, negligence was required to be proven, in certain cases to the level of gross negligence.

In addition, in the Hazel Lawlor v The Planning Tribunal [2010] IR 270 case Mr. Justice Murray stated that

“In principal, evidential requirements must vary depending on the gravity of the particular allegation. This is not to adopt “the sliding scale” of proof advocated by counsel for the applicant, but rather to simply recognise, as an integral part of fair procedures, that a finding in respect of a serious matter which may involve reputational damage must be proportionate to the evidence on which it is based.

The Respondent Legal team summarised their case as being one that recognised that a major finding of, in this case dismissal, required that fair procedures and Natural Justice be followed at all times but that the final conclusion had to be based on the Balance of Probabilities and not any intermediate “third standard” standard veering toward the Criminal level of proof. This position had been clearly set out by the Supreme Court.

1:3 Adjudication Officer consideration on Opening Legal point.

I carefully considered the arguments and considerable evidence advanced both in writing & verbally and studied the considerable case law advanced. I was careful to avoid being dazzled by the major National Security background to the case.

The plain facts of the case are without dispute. The finding of Dismissal is of profound negative consequences for the Complainant.

However, none of the evidence and in particularly the Supreme Court case law predicates or requires that normal well accepted standards of Balance of Probability in Employment cases be specially supplemented and a “Third Standard” be introduced.

To follow Ms. Justice Finlay comments, quoted above, in the Banco Ambrosiana case the idea of a “third standard” would be fraught with plain difficulties. Necessity would ask the question: Does the dismissal of a junior bar person from a suburban Pub, for example, weigh less in levels of proof required than a dismissal from a high security State Service.?

How would you define a Third Standard and how would you implement it are questions that are, in my opinion, almost impossible to answer.

The only realistic option is that we have to look to basic and well accepted tested Legal standards and as always in an Employment Law case Natural Justice is paramount among these.

In Frizelle v New Ross Credit Union Ltd, [1997] IEHC 37 Flood J. stated that

where a question of unfair dismissal is in issue,

there are certain matters which must be established to support the decision to terminate employment for misconduct:

“1.

The complaint must be a bona fide complaint unrelated to any other agenda of the Complainant.

Where the Complainant is a person or body of intermediate authority, it should state the complaint, factually, clearly and fairly without any innuendo or hidden inference or conclusion.

The employee should be interviewed, and his version noted and furnished to the deciding authority contemporaneously with the complaint and again without comment.

The decision of the deciding authority should be based on the balance of probabilities flowing from factual evidence and in the light of the explanation offered.

The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee.

Put very simply, principles of natural justice must be unequivocally applied.”

The basic principles referred to by Mr. Justice Flood have been set out in SI 146 of 2000 -Code of Practice on Grievance and Disciplinary Procedures.

From a careful study of the voluminous evidence presented it was clear that Natural Justice had been observed in this case. I will refer to this further below.

1:4 Adjudication Officer conclusion.

Having studied the positions and supporting evidence presented I was happy that the evidence did not support a sustainable argument, by the Complainant’s Legal team, to require the Adjudication depart from the normal Balance of Probability standards.

The request to dismiss the case from the beginning on the basis that a higher “Third level” Standard of Proof was not achieved by the Respondents is also not sustained.

In addition, all evidence presented indicated that Natural Justice, the key Legal fundamental, had been observed at all times.

On all these grounds I was happy to let the case proceed.

2: Adjudicator Summary of Complainant’s Case: Based on extensive Verbal and Written submissions received.

The Complainant was Dismissed from the Civil Service on the 5th December 2019. He had been on paid suspension since the 7th February 2014.

Although initially arrested and released in February 2014 by the Gardai he had never been prosecuted for any matters connected to this case by the Director of Public Prosecutions.

The delays in processing his case by the Respondent had been extraordinary and most oppressive. The Complainant’s Legal team cited McMahon v Irish Aviation Authority [2014] IEHC 431 and Wallace v Irish Aviation Authority [2012] IEHC 78 in support of their arguments that a suspension, albeit even on full pay as in this case, lasting almost 5 years, was in itself an unjust penalty and a major breach of the Complainant’s Legal and Constitutional (Article 40.2.2) rights.

An allegedly Independent investigation by a form of outside Consultants – Raiseaconcern /Mr. Philip Brennan had begun in May 2017 and took over two years to conclude. It was a fundamentally flawed Investigation. The Complainant cited numerous incidents in the Investigation that he felt were basically unfair to him.

The Complainant’s Legal team stated forcibly that Complainant’s Legal and Constitutional rights had been egregiously trampled upon by the Raiseaconcern /Mr. Philip Brennan process. The Complainant was entitled to a higher standard of proof than the simple Balance of Probabilities basis used by the Investigation process.

The Internal Civil Service Disciplinary Appeals Board hearing (14th November 2019) had, by accepting the flawed Raiseaconcern Reportsimple compounded the injustices suffered by the Complainant.

The dismissal was fundamentally the product of a legally flawed Investigation process coupled with a most egregious set of unnecessary delays that were in themselves the imposition of an illegal penalty.

On both of these grounds it should be immediately set aside.

3: Summary of Respondent’s Case: Based on extensive Verbal and Written submissions received.

The Complainant was employed in a most sensitive and high security office function. Following a number of discoveries by British Police of fraudulently obtained but genuine Irish identity documents the Gardai commenced an investigation, part of which lead to the arrest of the Complainant in February 2014. Although released by the Gardai the Complainant was suspended on full pay and a major internal investigation was commenced by Mr A of the Respondent Department.

The Complainant was effectively accused of four items

1. Fraudulent issuing of Irish Identity Documents – Irish Passports

2. Breaches of data Protection in unauthorised accessing of personal data records

3. Breaches of the Respondents IT systems policy

4. Breaches of the rules governing “expediting “Passport applications.

The initial Internal Investigation by Departmental Official, Mr. A, took place in early 2014 but was suspended by agreement with the Complainants Trade Union in December 2014 to allow the outcome of the Garda investigation become known. It was felt that the outcome from the Gardai would compromise the internal Respondent investigation.

In September 2016 the Director of Public Prosecutions informed the Parties that no charges would be made against the Complainant by the Gardai.

Following further local discussions with the Complainant’s Trade Union it was accepted that a new completely independent Investigation of the entire matter would be undertaken. Mr A’s earlier investigation and any draft conclusion he might have reached would not be made known to the Investigator.

Following an open public tendering process the Consultancy firm of Raiseaconcern /Mr. Philip Brennan was engaged. The Terms of Reference were agreed with the Complainant’s Trade Union and the investigation began in May 2017.

The Investigation was most thorough, and the final report ran to over 1,200 pages. It was carried out under the auspices of Civil Service Disciplinary Code 19/2016 and accompanying Handbook.

The Investigation Outcome was published on 30th April 2019 and confirmed that “on the balance of probabilities and the preponderance of evidence” seriously negative findings were made against the Complainant.

A Disciplinary Hearing was arranged for the 27th June 2019. However, the Complainant had issues with the Hearing, in particular the Management line up, and withdrew from the initial stage of the process.

By letter of the 19th July 2019 the Head of HR informed the Complainant that he was recommending to the Secretary General that the Complainant be dismissed.

The Complainant appealed this decision to the Civil Service Disciplinary Appeals Board. A full Hearing of the Board took place on the 23rd September 2019. The Complainant was fully legally represented by Counsel and Solicitor. The Board issued its finding on the 14th November 2019.

The Board did not support the Appeal and by letter of the 5th December 2019 the Secretary General confirmed the Dismissal on the grounds of Serious Misconduct.

In final closing comments the Respondent stated that the grounds underlying the Dismissal were extremely serious for a Person employed in a most sensitive State security setting. Dismissal was the only realistic option available to the Employer.

An exhaustive HR Investigation and Disciplinary process had taken place, the Rules of Natural Justice had been scrupulously observed and there were no flaws in the procedures or any processes to justify setting aside the Dismissal finding.

4: Findings and Conclusions:

4:1 The Relevant Law and the Role of the Adjudication Officer.

The foundation legal Act is the Unfair Dismissal Act,1977 supported by SI 146 of 2000 -Code of Practice on Grievance and Disciplinary Procedures and referenced against an extensive body of Legal Precedent.

However, in an Unfair Dismissal situation the guiding overarching principle has to be that of Natural Justice.

In Paragraph 1:3 of this Adjudication the guidelines of Mr. Justice Flood in Frizelle v New Ross Credit Union Ltd, [ 1997] IEHC 137 were set out.

More recently SI 146 of 2000 –Code of Practice on Grievance and Disciplinary Procedures has codified this Natural Justice principle into a set of guidelines.

As stated above in Paragraph 1:3 of this Adjudication the evidence points to all of Mr. Justice Flood’s requirements having been met.

The charges against the Complainant were clearly stated from the earliest time. All correspondence exchanged was proper and correct. Full cross examination and querying of all evidence was evident. The Complainant was very ably represented by, initially his Trade Union and latterly by a Senior Legal team. A very substantial Appeal process was offered and Accepted.

A very comprehensive Independent Investigation, to a pre-agreed Terms of Reference, took place over two years. On the “Balance of Probabilities” it established serious issues that required the Complainant’s explanation.

4:1:1 Key role of Appeals Board

A key issue is the final Stage of the Procedure – the Civil Service Disciplinary Appeals Board. Here the entire process was available for overview. The Board is chaired by a Legal Counsel and has an Employer and Trade Union member. All are of the highest standards of experience and knowledge of Employment issues and Civil Service Disciplinary matters.

The Appeals Hearing was the opportunity to explore and discuss the overall case and any extraneous influences or organisations that may have had a bearing on the Complainant’s initial actions. It was also the correct venue to raise or substantiate any allegations regarding legally improper procedures or unwarranted and unjust delays.

It has to be noted that extensive pre-hearing correspondence took place between the Complainant’s Legal team and the Respondents regarding perceived flaws in the Independent Report. A lengthy and comprehensive reply of some 34 pages was issued by the Investigator (dated the 19th August 2019) to address any perceived shortfalls, suggested by the Complainant’s Legal Team, in his Report or his Procedures. This additional correspondence was available to the Appeal Board. The Investigator, in what was almost a supplementary Report, answered all the allegations made by the Complainant’s Legal Team.

After a full Hearing the Appeals Board did not find in the Complainant’s favour.

The Board stated in its conclusion

“The Board is therefore not satisfied that the Appeal is supported by the evidence as presented or points made and believes that the sanction of dismissal is the appropriate sanction in this case.”

4:1:2 Natural Justice and Procedural Conclusions

In conclusion and having carefully reviewed the huge amount of paperwork submitted in evidence and heard the Oral presentations I came to the view that the evidence presented demonstrated that Natural Justice had been scrupulously observed and that there were no procedural flaws, demonstrated by the Complainant, such as to set aside the Respondent decision.

Nonetheless, it is of some concern that the Investigation Report took some two years to complete. However, having considered the Report and the Supplementary correspondence of the 19th August 2019 I was of the view that, while the delay was most undesirable, it did not amount to a departure from Fair procedures of such a degree as to warrant setting the Dismissal aside.

In the overall context the Civil Service Disciplinary code 19/2016 was followed carefully at all times. It is a most comprehensive and agreed set of Disciplinary procedures.

4:2 The Role of the Adjudicator

There is extensive legal Authority regarding the principle that the former EAT, or the Adjudicator is not to substitute themselves for an Employer and effectively engage in a de facto re-running of a Disciplinary case. Leaving aside Legal precedents a re- running of the case as suggested would involve, setting aside the most extensive Investigation Report but more importantly setting aside the Disciplinary Appeals Board findings.

The Disciplinary Board is an Independent body chaired by a Legal Counsel and two most Senior Employer and Trade Union representatives. Having read their determination and the reports of the meeting I could see absolutely no valid Legal or Practical grounds advanced by the Complainant’s legal team to set aside the findings of the Board.

The cases of Foley v Post Office [2000] ICR 1283 was referenced in the Irish High Court by McGovern J in the case of Doyle v Asilo Commercial Limited [2008] IEHC 445

“It is not the function of the Courts to substitute itself for the employer and to make its own decision on the merits of the employer’s decision to dismiss. As Mumery LJ stated in Foley v The Post Office at page 1295:

“The employer, not the tribunal is the proper person to conduct the investigation into alleged misconduct. The function of the tribunal is to decide whether the investigation is reasonable in the circumstances and whether the decision to dismiss, in the light of the results of that investigation, is a reasonable response.”

The point is developed further in the Court of Appeal decision in the Iceland Frozen Foods v Jones [1983] ICR 17 where the “Band of Reasonableness” principle was elaborated uponat length.

Accordingly, in the case in hand, a key Adjudicator question is whether the ultimate decision to dismiss was in the “Band of Reasonableness”.

Being careful not to be dazzled by the high-level Security issues in this case the major consequences of this case could not be ignored in considering the Respondent Sanction.

The finding of Serious Misconduct was the final outcome as set out in the Secretary General’s letter of the 5th December 2019.

Accordingly, after careful thought by the Adjudicator, a dismissal from Employment decision could not be seen to be outside the Band of Reasonableness.

4:3 Overall Summary Conclusions.

As Natural Justice was observed at all stages, proper procedures were followed, and the decision was in the “Band of Reasonableness” I have to find, from the evidence, that the Dismissal was not Unfair.

In view of the most serious nature of the entire process and the length of time elapsed since the actual employment physically ended Reinstatement or Reengagement were not viable options.

5: Decision:

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

This Decision refers to Complaint CA-00033572-001 as the principal claim.

CA-00033578-001 and CA-00033609-001 were not being proceeded with as they were both duplicate complaints to the principal complaint.

Having carefully reviewed all the evidence submitted and the legal arguments presented I find that the Dismissal was not Unfair.

Dated: 15th January 2021

Workplace Relations Commission Adjudication Officer: Michael McEntee

Key Words:

Unfair Dismissal, Standards of Proof, new Third level of Proof, Role of Natural Justice, Internal Investigations, proper role of Adjudicator. X