Complainant

Respondent

An Executive Officer

A Department of State.

Representatives

Initially by Bowler Geraghty and Co, Solicitors but later Self Represented

Ms. A. O’Donnell BL and earlier by Conor Quinn BL instructed by Karen Duggan Chief State Solicitors Office

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-00031522-001

11/10/2019

The issue in contention concerned the dismissal of a Civil Servant at the grade of Executive Officer by a Government Department. The employment commenced on the 1st September 2006 (in another Department) and ended on the 16th September 2019.

The Complainant worked a 37 Hour week and was on an annual salary, at date of claim referral, of    € 39,364

Substantial volumes of written evidence supported by extensive Oral Testimony were submitted.

As an aid to considering the case some basic background information is useful.

The Complainant had been recommended for Dismissal on the 8th March 2019. This was subject to appeal to the Civil Service Disciplinary Appeals Board. (DAB) The Board heard the case on the 23/05/2019 did not uphold the Dismissal but recommended a Demotion from Executive to Clerical Grade. The Decision was published on the 11th June 2019

The Parties had engaged, since 2017, in very detailed Internal Performance Improvement and Disciplinary processes which culminated in the eventual finding from the DAB.

This finding was not accepted, after consideration, by the Respondent Employer. The Complainant was dismissed by letter of the 9th August 2019.

The Complainant submitted detailed Written evidence and gave extensive Oral Testimony.

In summary the Complainant contended that he had been denied his basic rights of Natural Justice and that all the process leading up to the Disciplinary Appeals Board was inherently procedurally flawed.

He had moved to the Department on promotion to Executive Officer Grade in 2016. Prior to this promotion he had been employed in the XXXX, was highly thought of and was never the subject of any adverse complaint. On appointment to the Department he had been eventually placed in the Property Management Unit. (PMU). His role was ambiguous and lacked clear outlines. Much of his work involved follow up on Property issues with Irish Missions overseas. This made him very reliant on overseas Embassy staff to reply to his queries which in general they did not regard as having any priority. He also experienced considerable difficulties with his immediate Superiors in the PMU. In December 2017 the Complainant was placed on a Performance Improvement Plan. (PIP) Numerous review meetings were held and ultimately the Complainant was issued with a Level 3 Written Warning on the 27th November 2018. By March 2019 the Respondent HR Director, Mr.M, alleged that no improvement in the Complainant’s performance, despite all supportive efforts had taken place.  Accordingly, he had recommended to the Director General of the Department that the Complainant be dismissed.

The Complainant in his written and oral evidence vigorously contested much of the situation concerning the PIP and subsequent disciplinary process. In particular he felt that the role of the HR Department which he alleged was characterised, by their hostile operation of Civil Service procedures, in breach of the Natural Justice principle of “nemo judex in causa sua” throughout. He was denied a fair understanding of his case and the alleged bullying behaviours of some of his Superiors was ignored.

None the less he and his Union, FORSA, cooperated throughout. FORSA represented him at all stages and at the final DAB hearing.

The outcome of the DAB was a recommendation for a Demotion in Grade. However, the Secretary General of the Department, Mr. B, set aside the DAB recommendation and dismissed the Complainant by letter of the 9th of August 2019 on the grounds of Serious Misconduct.

The Complainant alleged that the dismissal process engaged in by the Secretary General was in flagrant breach of all the rules of Natural Justice. The Secretary General did not afford the Complainant an opportunity to further state his case especially when the ultimate penalty of Dismissal was being imposed. It was arbitrary and lacked any reasonable justification. The overturning of a DAB finding was extraordinary and almost unprecedented across the entire Civil Service.

Furthermore, it was a completely disproportionate penalty and especially when Dismissal had been set aside as a penalty by the DAB -the ultimate and highest procedural venue of the Civil Service Disciplinary Code.

The Respondent submitted extensive written evidence and gave Oral Testimony from a number of Officers. The principal witnesses were the former Secretary General, Mr. B, the HR Director, Mr. M and the Complainant’s former Head of Department, Ms. Mo

In summary the evidence presented supported a case that the Complainant had not performed to the standards expected of an Executive Officer. He had been supported at all times by his superiors in the Performance Improvement Process. The move to the Disciplinary process had been completely procedurally correct under the Civil Service Disciplinary Code. The entire process had taken almost two years. At all times the Complainant was supported by his Union. The Director of HR, Mr M, gave extensive oral evidence in support. He vigorously rejected any suggestions that he or the HR Department had at any time acted, in arranging procedures, nominating internal appeal officers etc to the unfair detriment of the Complainant.

In regard to the situation, post the Disciplinary Appeals Board (DAB) outcome of the 11th June 2019, the former Secretary General, Mr B, gave an extensive Oral testimony.

Mr. B was a most impressive witness. He clearly emphasised that the Dismissal decision was one he had not taken lightly. The overturning of a finding from the Disciplinary Appeals Board -the DAB - was a far from trivial matter that carried serious repercussive effects across the entire Civil Service.

It came as a result of careful study of the extensive submissions and paper work from 2017 to 2019. He had set aside considerable time in his schedule, (not easy for a Secretary General) to work on the case.

In his evidence he emphasised that he had approached the issue in the belief that it was incumbent on him as Secretary General to “Test” the findings of the DAB in both a “Generic” sense from an overall Civil Service Management viewpoint and also from a “Specific” view point as regards the individual Complainant.

In his review of all the materials presented he found that the Complainant had a number of significant weaknesses as regards following established Rules and Procedures and in paying proper attention to detail. The outcome of the PIP and the Written Warnings were also of significance. All these were very major matters of detraction for any Civil Servant, irrespective of grade. If the Complainant was reduced in Grade, as suggested by the DAB, to CO from EO the overall weaknesses would continue as they were inherent, “hard wired” into, in common language, so to speak, the Complainant.

There were also the ongoing difficulties he felt in the approach of the Complainant in engaging generally with Superiors illustrated during the PIP process. - again, a matter of general concern irrespective of Grade, either CO or EO. Taken in the round, his concerns in these areas had led him to the Dismissal decision as being in the best interests of the Service and allowing him to set aside the DAB decision.

In cross examination from the Complainant specifically directed to the question as to why the Complainant had not been afforded an opportunity to engage further with the Secretary General he stated that he had all the Complainant’s arguments in the files and a further exchange on existing grounds would not realistically lead to anything that would be an asset to the process.

He was aware at all times of the very serious nature of his responsibility in this case. He had taken a considerable period of time to read and review most carefully all the materials that had led to the eventual appeal to the DAB. The materials were extensive and contained the Complainant’s arguments and detailed records of Oral presentations made, to the various PIP meetings and later Disciplinary meetings. It was not a situation that the Complainant’s side of the case was not considered. However, he, as the ultimate decision maker, had to evaluate whether or not the Complainant would or could fulfil the requirements of the Service, at whatever grade, clerical or executive. He had come to the view that the Complainant had serious performance flaws in regard to accepting proper Authority from Superiors and following accepted work routines & procedures to achieve accepted outcomes in a reasonable efficient manner. On overall balance it was his view that the continued employment of the Complainant was not in the best interests of the Civil Service and he had decided to opt for the Dismissal decision.

In cross examination he vigorously maintained that the Dismissal decision was his alone and that he had not been subject to any external pressures or lobbying. It was a most serious decision and he had taken considerable time in carefully arriving at it. He had not felt it necessary to have further discussion with the Complainant post the DAB. The Complainant’s views and that of his Union, FORSA, were well recorded on all the paper work.

He had classified the actions of the Complainant as “serious misconduct” as the actions were very detrimental to the proper and efficient running of the Department.

As regards the proportionality argument it was his view, as final decision maker, that the Complainant was not going to achieve the required standards at either the Clerical or Executive Grade and that Dismissal was the only proper option.

3:1          The Legal Position - applicable Acts, Statutory instruments and the Principles of Natural Justice / Legal Precedents.

The principal Act is the Unfair Dismissals Act,1977 supported by SI 146 of 2000, Code of Practice on Grievance and Disciplinary Procedures -Industrial Relations Act,1990.

In relation to Natural Justice the following quote from Mr Justice Flood is well worth noting.

In Frizelle v New Ross Credit Union Ltd, [1997] IEHC 137 he 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.

2.

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.

3.

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

4.

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.

5.

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 leading text book in this area is Redmond on Dismissal Law by Dr. D. Ryan, third edition ,2017 where Chapter 7 is devoted to a detailed discussion on Constitutional Justice and by extension Natural Justice. Extensive case law is considered.

Suffice to say the overall view is that the two main principles of audi alteram partem and nemo iudex in causa sua cannot be lightly set aside in an employment context particularly where a Dismissal from employment, the “nuclear” option so to speak, is being considered.

However, all cases rest on their own factual matrix and evidence presented. This has to be considered below.

3:2         Consideration of Evidence, Oral and Written and facts presented.

3:2:1        Opening background. Pre and Post the Disciplinary Appeals Board findings of May 2019.

The case could be considered as having two sections -the incidents pre the Disciplinary Appeals Board (DAB) of the 23 May 2019, (published on the 11th June) and the incidents post the issuing of the DAB finding.

Having reviewed all the written evidence, meeting minutes, DAB decision, notes of and the supporting Oral Testimony plus cross Examination the Adjudication conclusion has to be that the case pre the DAB decision was handled, overall, in a proper fashion in keeping with the Civil Service Disciplinary Code.

The composition of the DAB was an experienced Lawyer as Chair, Ms. F, supported by a representative of the Civil Service Union, the AHCPS, Mr. M, and an experienced former senior civil servant, Mr.F. It was not a lightweight Board by any standard.

The Union, representing the Complainant, had confirmed that “Proportionality” was a key plank of their case. The Board in their findings had confirmed that the Complainant’s actions had been serious misconduct under the Disciplinary code.

After consideration the DAB did not uphold the Dismissal recommendation.  With no Dismissal to be considered it can technically be well argued that under the Unfair Dismissals Act, 1977, Sections 1 and 2, the Adjudication Officer has no proper role or jurisdiction in events pre the DAB decision.

However, Section 14 (4) of the Act does allow for a broader view to be taken  

Section 14 (4)

Where an employee is dismissed, the employer shall, if so requested, furnish to the employee within 14 days of the request, particulars in writing of the principal grounds for dismissal, but, in determining for the purposes of this Act whether, in accordance with the provisions of this Act, the dismissal was an unfair dismissal, there may be taken into account any other grounds which, subject to the provisions of this Act and having regard to all the circumstances, are substantial grounds justifying the dismissal.

The view can be taken that events pre the DAB has a “persuasive effect” having regard to “all the circumstances”.

However, the actual Dismissal, as required to qualify under the UD Act, took place post the DAB finding.

This has to be examined closely.

3:2:2         Events Post the DAB decision.

The key evidence presented here was the Oral Testimony of the agreed decision maker, Mr. B, the former Secretary General.

The Complainant was obviously of the view that the Secretary General had denied him the Natural Justice rights of re stating his case to the final Decision maker particularly when his future employment and good reputation was at stake. While there is no hierarchy of Dismissals, for a Civil Servant to lose his position could, reasonably be deemed, to be of the utmost gravity and carry very negative consequences in any search for future employment.

In reviewing the case, from an Adjudication perspective, the point has to be considered that the Director General of the Department was in a most difficult managerial situation – the phrase of being alone in the “bearna bhaoil” – (the gap of danger) seemed appropriate.

Circular 19/2016 the “Disciplinary Code” refers 

4.6 Outcome of the Appeal Process

The outcome of the appeal process shall be one of the following:

 Appeal unsuccessful - uphold the disciplinary action;

 Appeal successful - determine that no disciplinary action shall be taken;

 Appeal partially successful - take another, more suitable, disciplinary action, except that the recommendation shall not include reassignment of the civil servant to another location or other duties;

 Appeal identifies the need for the case to be reconsidered by the relevant manager to remedy a specified deficiency in the disciplinary proceedings.

The outcome of an appeal to the Disciplinary Appeals Board Process (Sanctions 9-13) will be a recommendation to the Appropriate Authority. Ordinarily, it is expected that the recommendation of the Disciplinary Appeals Board will be taken into account.

(Underlining by Adjudication Officer).

Setting aside the Recommendation of the DAB was a most serious matter for any Director General.  In such a serious matter general legal Precedent would indicate that the highest possible standards and safeguards of Natural Justice would apply.

The gravity of the situation – losing a permanent job as a Civil Servant and overturning the DAB – required that any questions marks, no matter how raised, over audi alteram partem and nemo iudex in causa sua could not be treated lightly.

As regards audi alteram partem SI 146 of 2000, Code of Practice on Grievance and Disciplinary Procedures -Industrial Relations Act,1990 and indeed Mr. Justice Flood would seem to point to the Complainant being allowed a further opportunity to make his case, no matter how repetitive it might have been for the DG.

The question of nemo iudex in causa sua raises the query as to whether or not the most senior officer in the Department was sufficiently independent. The High Court touched on this point of the role of General Managers in Cassidy v Shannon Castle Banquets and Heritage [2000] ELR248 where it was held that the General Manager – (equivalent to the role of the Director General in this case) should not have been involved. 

It has to be noted that the Oral testimony of the Director was completely reassuring in this regard, he had “not listened to whispers” in his own words. Nonetheless he was the most senior officer of the Respondent employer.

However, where a Civil Service DAB recommendation is being overturned and a Civil Servant is losing his position a completely independent person unconnected to the Department and or other body hearing an Appeal, would have removed this, no matter how possibly unfounded, Natural Justice objection.

It may be argued that the Adjudication Officer, in the conclusions above, is carrying a view of Natural Justice beyond what is reasonably warranted. A brief view of the Legal context is accordingly warranted.

3:2:3       Legal Context of the use of Natural Justice as a tool in an employment case.

The question of Fair Procedures /Natural Justice in Irish Employment law has been well developed. The overall context/background of a case has always been referred to by the Superior Courts in considering matters of this nature. It is not a precise almost objective application of the rules. The severity and impact of the decisions being considered, especially for an individual, are critical.

A most useful quote is from the UK case of Russell v Duke of Norfolk [1949] 1 All ER 109:

"There are… no words which are of universal application to every kind of inquiry and every kind of domestic tribunal. The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with, and so forth.”

This approach has been endorsed in Ireland, e.g. in the statement of Keane J in Mooney v An Post [1994] ELR 103 that

“the concept [of natural justice] is necessarily an imprecise one and what its application requires may differ significantly from case to case”.

In Lawlor v Flood [1999] 3 IR 107, Murphy J pointed out that the “full panoply” of procedural protections identified in Re Haughey [1971] IR 217 became available in that case not because an investigation was ongoing or because Mr Haughey was required to go on oath, but because he was accused of serious misconduct in the course of the procedure, at which point his rights were at risk.

In the case in hand two most serious issues were at stake, firstly a civil Servant was at risk of losing his position – an outcome that carries, all reasonable persons would accept, most serious consequences in the employment market. Secondly, the Civil Service Disciplinary Appeals Board finding was being set aside.

Taking both of these issues, the guidelines from Re Haughey [1971] IR 217- the “Full panoply” as quoted can justifiably be applied. Accordingly, the Adjudication conclusion set out in Paragraph 3:2:2 above is supported.

3:3        Summary Conclusions.

 On balance, having carefully considered all the evidence and especially the Oral testimonies and having regard to the gravity of overturning a DAB decision and removing a Civil Servant from employment the Adjudication conclusion has to be that the final decision, while most carefully arrived at, does not meet the highest standards of Natural Justice, quite possibly inadvertently, which the gravity of the situation required.

There can not be any fault attached to the Director General in this case. It was a structural issue that was at fault - one person, albeit the most Senior Departmental Officer, should not have been asked, bearing in mind all the possible Natural Justice complications, to make this decision which was, essentially, overturning a Disciplinary Appeals Board finding.

Accordingly, a finding of Unfair Dismissal, on the grounds of Natural Justice, has to be made.

Natural Justice, Unfair Dismissals Act, Civil Service Disciplinary Appeals Board.