FULL RECOMMENDATION
PARTIES : AN POST DIVISION :
SUBJECT: In line with the normal practice of the Court, the parties are referred to in this determination as they were at first instance. Hence, Mr Hurley is referred to as the Complainant and An Post is referred to as the Respondent. The Complainant was employed by the Respondent from the 18thJanuary 1993 until his dismissal on the 14thJune 2019 on the grounds of gross misconduct. The Complainant submits that he was unfairly dismissed. The Respondent denies this. This case was heard over two days on the 3rdJune 2021 and the 15 February 2022. As dismissal is not in dispute it falls to the Respondent to show that the dismissal was not unfair. On the first day of the hearing, it was confirmed to the Court that the Complainant accepted what was contained in the District Court order which was opened to the Court and therefore there was no need for the Court to hear evidence from the Garda who was present on foot of a summons. The Court then went on to view the Respondents CCTV evidence and hear the evidence of one of the Respondents witnesses Ms O’ Mahony. The Representative for the Complainant Mr Lyons BL made an application for initially Ms Doyle and then for the full division of the Court to recuse themselves as it had come to his client’s attention that Ms Doyle had worker for An Post in a HR capacity some eighteen years earlier. The Respondent’s representative Ms Bolger SC (as she was then) indicated that the Respondent would not be expressing a view in respect of the application for recusal. The Court adjourned to consider the application. The Court having considered the application informed the parties it was not acceding to the request for it to recuse itself. The Court set out that it had considered the Supreme Court case ofO’Driscoll v Hurley[2016] IESC 32 where the test for objective bias was set out as “…whether a reasonable person, in all the circumstances of the case, would have a reasonable apprehension that there would not be a fair trial from an impartial judge. As it is an objective test, it does not invoke the apprehension of the judge or any party; it invokes the reasonable apprehension of a reasonable person who is in possession of all the relevant facts.”The Court advised that it did not believe that the fact that Ms Doyle had worked for An Post eighteen years previously, could raise a reasonable apprehension that the Court would not be impartial. The Court does not believe that the Complainant has put forward a substantial ground and therefore the division of the Court declined to recuse itself. The Court took a short adjournment to allow Counsel brief their client on the Court‘s decision. When the hearing resumed Mr Lyons BL on behalf of his client sought an adjournment to allow the Complainant to consider his options in response to the Court’s decision not to recuse themselves, including the option of judicial review. An Post did not object to the adjournment. The Court granted the adjournment. The parties agreed without prejudice to their position to engage in case management. At the request of Counsel for the Complainant the Court allowed six weeks for them to submit and copy to the other side details of loss being claimed and mitigation. It was agreed by the parties that all relevant CCTV footage had been seen and that the case would be programmed for a full day with date to be confirmed, which should be sufficient to conclude the case. When the hearing reconvened Mr Sreenan SC replaced Ms Bolger SC as the representative for the Respondent. On the 4thJuly 2018 the Respondent received an email from one of their commercial clients advising that a female member of staff had alleged that an employee of the Respondent had on the 29thJune 2018 acted in an inappropriate manner. The email went on to say that the matter had also been reported to the Gardai. On the 10thJuly 2018 Mr Sean Collins HR manager with the Respondent met the clients HR Director who advised that CCTV footage of the incident was available and that the staff member had consented to it being released to the Respondent. On the 12thJuly 2018 the Complainant was asked to attend a meeting at the Respondent’s regional office in Cork and was advised that a serious allegation had been made against him by an employee of a named client. The Complainant was advised that he was being placed on suspension with immediate effect, on full pay to allow for the matter to be investigated. The Complainant was provided with a letter of suspension. On the 13thJuly 2018 Mr Rory Cooke was appointed to carry out the investigation. On the 18thJuly 2018 Mr Cooke and Mr Collins met with the clients HR Director who provided them with the CCTV footage and three signed written statements from employees who were present on the day of the incident. Mr Cooke and Mr Collins also took a voluntary statement from Ms O’ Mahony the person who had made the complaint. On the 19thJuly 2018 Mr Cooke met with the Complainant and interviewed him. The Complainant was accompanied at the meeting. At that meeting the Complainant set out his version of events and stated that there were a number of males standing in his way, so he had to go behind the counter and lean over Ms O’ Mahony to put the post down. As he was leaving Ms O’ Mahony told him he was OTT (over the top). He continued with his delivery then returned to the building some time later the same day to ask what she meant by OTT. The Complainant stated that Ms O’ Mahony started shouting that he had no right to come behind the counter, so he left and reported the issue to DSM Mr Cronin. After the Complainant had given his version of events, he was shown the CCTV footage and asked to comment on same. The Complainant accepted that it could be portrayed that he kissed her from the CCTV footage but said that he “did not kiss her whatsoever”. The Complainant was given a typed copy of the notes of the 19thJuly 2018 meeting. Mr Cooke completed his report and provided a copy of same to Anne O’ Reilly and Rory Delany Employee Relations Manager. By letter dated 20thSeptember 2018 the Complainant was advised by Ms Tina O’ Sullivan Employee Relations that the investigation was completed and that there was a case to be answered, therefore it would proceed to the disciplinary process. The letter set out the seriousness of the matter and that a decision up to and including dismissal could be made. The first witness for the Respondent was Ms O’ Mahony who stated that she first encountered the Complainant in March/April 2018 when he referred to her as “blondie” and asked her if she was new and about her plans for the weekend. Ms O’ Mahony stated that she responded advising that her name was not blondie, she was married and what she would be doing at the weekend was none of his business. The Complainant would normally place the post on the desk but on the 29thJune 2018, he came in behind the desk. She stated that she put her hand out to take the post, but he ignored her hand and came behind her chair. At that point she could not see him, but he leaned into her, and she felt a kiss on the top of her head as he put the post down beside her. He then walked away. Ms O’ Mahony stated that she told him he had gone a bridge to far and that he replied that he was kissing a friend on his phone. Ms O’Mahony stated that she emailed a colleague to come and relieve her as she was upset about what had happened. Ms O 'Mahony stated that a while later she was back on the front desk and the Complainant came back in and said he was only messing earlier. Ms O' Mahony stated that she lost the plot and used some choice words. Some other people overheard the exchange, and the Complainant was asked to leave. Ms O' Mahony stated that as he was leaving, she told him that she was going to report him to An Post for his behaviour and that she had not consented to him coming behind the desk or doing what he had done. On the day in question, she typed up a note of what had occurred. Ms O’Mahony stated that she met with Mr Collins and Mr Cooke on the 12thJuly 2018 and gave a statement. Mr Lyons BL in cross examination ask the Complainant who did she give the statement of the 29thJune 2019 to and noted that it did not contain the allegation about the first instance that she is alleging occurred in March/ April 2018. Ms O’Mahony confirmed she gave it to her employer but she did not know how An Post came to have that statement. Mr Lyons BL put it to Ms O’ Mahony that in terms of where the Complainant was alleged to have kissed her there were slight variations between her statements of 29thJune and the 12th July 2019. It was put to Ms O’ Mahony that the Complainant will say the initial exchange that she alleged happened in March/April 2018, never happened and that he disputed her account of what happened on the 29thJune 2018 in particular that he did not kiss her. Ms O’ Mahony stated that she knew what happened and the CCTV which she had reviewed on the day supported her account. The next witness for the Respondent was Ms O’ Sullivan who in her evidence to the Court stated that the letter of the 20thSeptember 2018 advised the Complainant that he had a right to furnish any explanation which he believed would assist him and that he could be accompanied by a Trade Union official or a friend at the oral disciplinary hearing and that if he was unhappy with the outcome of the disciplinary hearing there was a right of appeal. It was Ms O’ Sullivan’s evidence that attached to the letter was a copy of the investigation report, witness statements and other relevant documentation. The Disciplinary meeting was held on the 9thOctober 2018 and the Complainant was accompanied by his Trade Union Official. One of the issues raised by the Complainant was that there were several men outside the building and inside. The stills of the CCTV footage outside the building were provided by letter dated 6thNovember 2018 and arrangements were made for the Complainant to view the footage on the 5thDecember 2018. Ms O Sullivan stated that at that point in time she understood that the Complainant had seen the original CCTV footage of the incident at the investigation stage. The Complainant requested to see additional footage for thirty minutes before and after the incident, but that footage was not available. The Complainant stated at the meeting on the 9thOctober that he had walked around the counter, that he had not seen Ms O’ Mahony put her hand out for the post until he was right beside her and that he stumbled and lost his balance. The Complainant stated that he was on the phone to his wife at the time and would provide phone records to confirm same, but he never provided the records. Ms O’ Sullivan stated that she had redacted a couple of lines in Mr Cook’s report because she felt they were just a reflection of Mr Cook’s opinion and not relevant to the disciplinary process. It was Ms O’ Sullivan’s evidence that the hearing lasted about forty minutes. Ms O Sullivan stated that Mr John Dandy Human Resources Manager Employee Relations was appointed as the decision maker in respect of the disciplinary process. On the 8thJanuary 2019 she submitted an internal Memorandum setting out matters relating to the disciplinary process, the disciplinary process and oral hearing. By internal memorandum of 20thFebruary 2019 Mr Dandy advised that dismissal was the most reasonable and appropriate option in all the circumstances. In response to a question from Mr Lyons BL under cross examination Ms O’ Sullivan confirmed that she had decided that the matter should be dealt with at Head Office level rather than at local level. Mr Lyons BL put it to Ms O’ Sullivan that there was no documentation attached to the letter of 20thSeptember 2018 and that the Complainants evidence will be that he did not see the witness statements until after he was dismissed. Ms O’ Sullivan stated that the documents were attached to the letter that went to the Complainant. It was put to Ms O’ Sullivan that the last line on Mr Cook’s report where he states that he was informed that the Complainant had come to the attention of HR before was prejudiced to the Complainant. Ms O’ Sullivan stated that she did not believe it was, the system would show if he had any ongoing disciplinary issues, and it was not something she considered. Ms O’ Sullivan confirmed that the CCTV footage was not played on the day of the disciplinary hearing and that there were two statements from Ms O’ Mahony an original statement she gave to her employer on the 29 June 2018 and a more detailed statement she gave to Mr Cook dated the 18thJuly 2018. Ms O’ Mahony stated that she was not sure if the Complainant had been given a copy of the first statement. The next witness for the Respondent was Mr Mark Graham who held the position of Head of Employee Relations at the relevant time. Mr Graham confirmed that he heard the Complainants appeal in respect of the decision to dismiss. The Complainant lodged an appeal on the 11thApril 2019 and requested an oral hearing. Mr Graham stated that the main aim of an appeal is for the Complainant to put forward his grounds of appeal. Neither the Complainant or his Union representatives raised as a ground of appeal or at the oral hearing that the Complainant had not been supplied with the witness statements or any relevant papers. The appeal hearing lasted about forty minutes. Mr Graham confirmed that he received the investigation file which contained the investigation report and correspondence with the Complainant. Mr Graham stated that he did not view the CCTV footage until after he had the oral hearing with the Complainant as he wanted to hear his version of events first. Mr Graham stated that during the appeal hearing the Complainant offered to demonstrate to him what had occurred. He facilitated that but he felt very uncomfortable as the Complainant went through the demonstration as he believed that the Complainant was inappropriately close to him. The Complainant was provided with copies of the minutes of the meeting and invited to submit any comments he had in respect of same, but no comments were submitted. The Complainant was advised by letter of 7thJune 2019 that his appeal was unsuccessful, and he was dismissed with effect from the 14thJune 2019. Mr Graham stated that he considered three issues 1) did the alleged incident occur. He concluded based on the CCTV footage that it did occur. The CCTV footage clearly shows that the Complainant went behind the counter without permission and while it is not clear from the CCTV footage if he actually kissed her as alleged, he was in very close proximity to Ms O’ Mahony. The CCTV did not support his version of events that he had to go behind the counter as there were a number of men blocking his way 2) Is dismissal the appropriate sanction? Mr Graham stated that the Complainant never accepted that he had done anything wrong, and this was a factor he considered in coming to the decision that dismissal was the appropriate sanction. Mr Graham stated that he did consider a lesser sanction but did not think it was appropriate in circumstances where the Complainant did not accept that he had done anything wrong. Mr Graham stated that he was concerned about moving the complainant to an area where there were females in circumstances where he saw nothing wrong with what he had done. 3) Are there any mitigating factors? Mr Graham stated that he did not find there were any mitigating factors. It was put to Mr Graham by Mr Lyons BL in cross examination that he had been involved with the process from the start and that it was not appropriate for him to hear the appeal. Mr Graham stated that he was aware there was an issue, he may have been aware that it was the Complainant, but at that time his only role was in relation to answering queries about GDPR issues relating to accessing the CCTV footage. He took advice on these issues and passed it on. Mr Graham confirmed that Mr Collins told him he was going to suspend the Complainant and he agreed with that course of action, but it was not his decision to suspend. Mr Collins was following the suspension procedure in letting him know that was what he intended to do. It was put to Mr Graham that he had been previously involved in a more serious case and he had overturned the decision to dismiss and applied a different sanction. Mr Graham stated that he did not accept it was more serious case, but the main difference was that in the other case the individual had shown remorse for his actions. In this case the Complainant did not acknowledge that he had done anything wrong. Mr Sreenan SC on behalf of the Respondent submitted that the Complainant had made a bare assertion that he did not receive a fair hearing from the Respondent on his complaint form and has focused on the preliminary investigation carried out by Mr Cooke to support this contention with a contention that Mr Graham had been biased before the appeal hearing. Mr Lyons BL submitted that there was an infirmity in the process because the Complainant in the investigative part of the process was asked to give his version of events prior to being showed the CCTV. No case law supporting this position has been open to the Court. Mr Cook’s process was a preliminary process to gather information there was no obligation to supply the Complainant with documents at that stage. While the Court had heard conflicting evidence in respect of whether the documents were provided with the letter of 20thSeptember 2018. The Complainants position that he did not receive them does not make sense as they are referenced in the letter and at no stage in the process after that date does the Complainant or his Union representative raise the fact that they have not been provided with the relevant documentation. The Respondent submits that Mr Graham previous engagement prior to hearing the appeal was in respect of a GDPR inquiry, this was fully disclosed and was contained in the investigation report. The Complainant never raised any issue when he was informed that the Mr Graham was hearing the appeal. The Respondent has met the test set out inNoritake (Irl) Ltd v Kenna(UD88/1983).The Complainant had put forward differing accounts of what transpired on the day and has yet to provide the phone records that he promised to produce. The Respondent and the Court are entitled to rely on what the saw on the CCTV footage. In terms of proportionality, it was set out for the Complainant in the letter of 20th September 2018 that initiated the disciplinary process that the matters raised issues in respect of trust and confidence which are a core part of a postman’s role in dealing with the public. Mr Sreenan SC submitted that the Complainant has shown a complete lack of insight in respect of his actions, and this was a factor in the Respondent coming to the decision to dismiss. The Complainant even at this stage as stated by him in his evidence to this Court considers himself to be the victim and went on to say that he was only prepared to apologise for invading Ms O’ Mahony’s space. He is still trying to justify what happened and make excuses for his behaviour. Taking all the circumstances of this case into account the decision to dismiss was well within the band of reasonableness and was a proportionate response for the Respondent to adopt. Mr Lyons BL on behalf of the Respondent submitted that the Complainant had twenty-six years’ service with An Post and this event has had a devastating impact on his life. There are issues that the Court need to consider such as the proportionality of the sanction and the manner of the investigation. Mr Lyons BL submitted that there were significant flaws with the process, Mr Collins own notes reflect that when interviewed the Complainant enquired about the availability of the CCTV footage, but it was not made available to the Complainant at that time. It is also not clear where the second statement from Ms O’ Mahony came from and there are differences between the two statements. It was submitted that there were significant procedural issues at the investigation stage carried out by Mr Cook. The Complainant was asked for his account of events and then was shown the CCTV footage. The investigation report drawn up by Mr Cook referenced issues that were not part of the investigation remit and made personnel observations again not appropriate to an investigation of the facts. Mr Dandy made the decision to dismiss but was not present at the dismissal hearing, he made the decision based on a report from Ms O’ Sullivan. Mr Graham heard the appeal and had been involved in the process from the start these issues all point to a flawed procedure. There was no consideration of any alternative sanction, and the Complainant was not afforded an opportunity to make a submission on same. InBank of Ireland v Reilly[2015] IEHC 241, Noonan J sets out that the decision maker should take account of the impact on employee. Mr Lyons BL submitted that he accepts that theNoritakecase as citied above sets out the appropriate test which is the band of reasonableness, but does not accept that the decision in this case falls with the band of reasonableness. Mr Lyons submitted that the Court had seen the CCTV footage of the incident and that he did not intend to take his client through the events of the 29thJune other than to say that the Complainant was very clear that he had not kissed Ms O’ Mahony as alleged. The Complainant in his evidence to the Court stated that after the incident on the 29thJune 2018 he had finished his deliveries and went back to the Depot where he told Mr Bill Cronin what had occurred. He went on to say that he received a letter on the 10thJuly 2018 inviting him to a meeting with Sean Collins on the 12thJuly 2018. At the meeting he was advised that they had received a complaint about an incident on the 29thJune 2018 and they were investigating same, in the meantime he was to be suspended on full pay. He then received a further letter inviting him to a meeting on the 19thJuly 2018. At that meeting he was shown the CCTV footage of the incident and asked if he had kissed Ms O’ Mahony. The Complainant stated that he had not kissed her and that the meeting got a bit heated, so Sean Collins called the meeting to an end. At that point in time, he had not been provided with any documents or statements. The Complainant stated that he received the letter of the 20th ofSeptember 2918 from Ms O’ Sullivan but there were no attachments. On the 9thOctober he attended a meeting in the GPO with Ms O’Sullivan. He assumed that he would get his job back and that someone else would deal with that client in the future. He received notification of the decision to dismiss him by letter of 27thFebruary 2019 from Mr Dandy. He was shocked when he received same and lodged an appeal. The Complainant stated that at the appeal meeting with Mr Graham he was getting frustrated because he felt Mr Graham did not understand what he was saying about what had occurred, so he offered to demonstrate for Mr Graham which he then did. He believed he would get his job back, but Mr Graham upheld the decision to dismiss. This has had a significant impact on his life and put him in a very dark place for a very long time. He loved working in An Post and wanted to go back working there as he felt it would clear his name if he was re-instated. The Complainant confirmed that he is currently employed, and he set out the details of his efforts to mitigate his loss and his current earnings. Mr Sreenan SC in cross examination took the Complainant through his loss of earnings and raised several issues in respect of the submissions made and the evidence given. He then put to the Complainant that as a postman he was the face of the Respondent and that they were entitled to expect that he would behave appropriately. The Complainant accepted that was correct. It was then put to the Complainant that Ms O’ Mahony had a right to not be touched by him and not to be kissed by him. The Complainant stated that he accepted to a point that he had breached expectations. He accepts that he should not have gone behind the counter and that he should not have gotten close to her, but he stumbled and said “oops a daisy” he did not kiss her. The Complainant stated that he said “oops a daisy” to lighten the mood it was just a bit of banter. The Complainant accepted that the five or six men he had referenced were not actually in his way he saw them through a door and thought that they might come out. It was put to the Complainant that he is now telling a different version of events to what he said at the disciplinary hearing. the Complainant stated he was just explaining what had happened. The Complainant stated that he did not accept that Ms O’Mahony was a victim he feels that he is the victim. He would have apologised to her when he went back if she had not been shouting and roaring at him, but he was not going to apologise to someone who said that he had kissed her when he had not. The Complainant accepted that he was prosecuted for sexual assault arising from the incident. The Complainant restated that he had not received any documents with the letter of the 20th ofSeptember 2018 and that he had only received the documents after he was dismissed. In response to a question from Mr Sreenan SC the Complainant confirmed that he had not told his Trade Union Official who accompanied him to all the meetings that he had not received the documents. The Complainant accepted that the letter of the 20thSeptember referred to documents but that he had not followed up with any one about the fact that he had not received same. He also accepted that this was the first time he had raised the fact that he had not received the documents. Mr Lyons BL submitted that there were several procedural failures including the failure of the Respondent to provide additional CCTV footage requested by the Complainant. The Court had not heard from Mr Cooke and there were a number of issues with his investigation report in particular the fact that the second statement from Ms O’ Mahony obtained by Mr Cooke was a lot more detailed than the original statement that she did up on the day of the incident, the Complainant was not given an opportunity to view the CCTV footage before he was asked for his version of events, three statements were provided which he included but Mr Cooke did not interview the three individuals. The prior involvement of Mr Graham is also an issue that goes to the heart of fair procedure the person hearing the appeal should not be tainted by prior involvement. The decision maker never met with the Complainant and there is nothing to suggest that he ever considered any other sanction. Mr Lyons BL submitted that it is a basic tenet of fair procedure that the decision maker should hear the Complainant. If as was being suggested it was felt that the Complainant lacked insight into his behaviour this could have been addressed by training instead, they went for the nuclear option of dismissal. The Complainant submits that he was not provided with fair procedure and therefore the decision to dismiss cannot fall within the band of reasonableness. Section 6 of the Unfair Dismissals Act 1977, as amended, states, in relevant part, 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. (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: (a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do, (b) the conduct of the employee, (c) the redundancy of the employee, and (d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute. Issue for the Court Dismissal as a fact is not in dispute and therefore it is for the Respondent to establish that in the circumstances of this case the dismissal was fair. Discussion In this case it is accepted that an incident occurred although one element of that incident which cannot be clearly seen on CCTV (the kiss) is disputed. The Complainant submits that there were procedural flaws in the process followed such as to deny him fair procedure. The Complainant identified not being provided with CCTV footage thirty minutes either side of the incident as one flaw. The Respondent submitted that they looked for that footage but were unable to obtain same. It was never put to the Court how that footage would have benefitted the Complainant or what disadvantage he suffered by not having access to it. On that basis the Court cannot find that not having this additional footage was detrimental to the process. The Complainant raised the issue of Mr Cooks report. While the Court accepts that elements of Mr Cooks report went beyond his remit, it was clear from the evidence of Ms O’ Sullivan and Mr Graham that those elements were not considered by them. In respect of whether the Complainant was supplied with the documents attached to letter of the 20thSeptember 2018, the Court finds that on the balance of probabilities he was supplied with same. The lack of this documentation was not raised by the Complainant or his representative at any time during the process which the Court believes support this finding. The fact that Mr Dandy the decision maker was not in attendance at the disciplinary hearing but instead made his decision based on Ms O’ Sullivan’s report is different to the procedures normally seen by this Court. However, the fact that it is different does not mean that it deprived the Complainant of fair procedure, and no submission was made to the Court to demonstrate that the Complainant had been disadvantaged in terms of the outcome as a result of this procedure. This procedure the Court was told, is the norm in this employment and both the Complainant and his Representative were aware that this was the procedure and raised no objections at the time. The remaining question to be considered by the Court is whether or not the Respondent acted in a reasonable manner in coming to the decision to dismiss. The Court’s attention was drawn to a number of cases by the parties that were opened to the Court relevant to the issue under consideration. The Court in its deliberations noted that the test for reasonableness was set out in Noritake(Irl)Ltd v Kenna(UD 88/1983) as follows: 1) Did the company believe that the employee misconducted himself as alleged? 2) if so, did the company have reasonable grounds to sustain that belief? 3) if so, was the penalty of dismissal proportionate to the alleged misconduct? The issue was further considered inBank of Ireland v Reilly[2015] IEHC 241, where Noonan J. noted that s6(7) of the Act makes it clear that a court may have regard to the reasonableness of the employer’s conduct in relation to the dismissal. However, “that is not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that 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” In this case it is not disputed that an incident occurred. The Complainant in his submission does not raise any procedural issues with the process that could be considered to be fatal. The witness who was involved with the appeal hearing gave evidence of considering options other than dismissal. In his evidence he set out why taking into account the nature of the incident and the service of the Complainant that following consideration of the other options they were not viable. The Court is of the view that, applying the ‘ratio’ of the cases cited above to the facts of this case, the decision to dismiss falls within the “range of reasonable responses of a reasonable employer” and therefore, the Court determines that the decision to dismiss was fair. Determination The Court determines that the appeal is well-founded. The Decision of the Adjudication Officer is set aside. The Court so determines.
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