Complainant

Respondent

Anonymised Parties

A Prison Officer

A Prison Service

Representatives

Roddy Maguire BL instructed by Siúna Bartels, S. Bartels & Company Solicitors

Peter Leonard BL instructed by Jennifer Murray Employment Law Section, Chief State’s Solicitor’s 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-00047465-001

02/12/2021

The Complainant worked as a Prison Officer with the Respondent from 15 October 2007. Her employment was terminated on 16 July 2021 on the basis that she was absent without leave from 27 November 2018 until she sought to return to work in June 2020.

The Complainant applied for a career break on 7 February 2018, seeking for it to commence in September 2018. She had never before taken a career break. By letter dated 12 March 2018, Ms Q of the Human Resources Directorate refused the application for a career break, citing “overall staffing requirements”. A further submission outlining the personal family circumstances of the Complainant was made in July 2018 by the Chief Employee Assistance Officer and a formal appeal was submitted on 11 September, supported by a letter from her solicitor, which was received by the Respondent on 19 September 2018. The particular personal stresses of the Complainant were outlined, including her stress and anxiety, her difficulties in coming out as gay at work, the recent death of her wife’s father, and her wife’s need to return to Australia. The appeal was accompanied by a doctor’s letter stating that the Complainant’s alopecia, gastric ulcers, insomnia and anxiety were all related to stress. This appeal was refused on 28 September 2018 by the Respondent’s Personnel Officer. 

The Complainant was certified as sick for 16 days in August 2018, and again from 12 September 2018 due to stress. By letter dated 9 November 2018, the Complainant’s GP stated in correspondence that she advised the Complainant to take a leave of absence/ career break as she believed that this would help her condition.” The Complainant was subsequently examined on behalf of the Chief Medical Officer of the Respondent who, by letter dated 8 November 2018, stated that the Complainant was “very upset and distressed re [the decision to refuse her career break] as she feels that she has always given good service and over the years, even when there was a ban on recruiting, others were allowed to take career breaks. This has impacted on [the Complainant’s] overall health hence her current sick leave….. I have advised [the Complainant] while I could support her in principle it is ultimately a decision for local management whether or not employees are allowed to take career breaks.” Although, the letter went on to state that “Perhaps HR might look into the possibility of a career break again for [the Complainant] and at least advise her of when it may be possible for her to take one.”, this was never done. Having sent her to the CMO for review, the Respondent failed to take any account of the findings of the CMO and failed to address the causes of the sick leave, Although the Complainant made a further application for a career break on 8 November 2018, she was informed that as a previous application was refused on appeal and as she was on sick leave, the application could not be progressed.

The Complainant was written to by the Respondent on 5 February 2019 stating that she was going to be put off pay as she had exhausted her pay entitlements.  A further letter, dated 28 March 2019, outlined that the Complainant had been on certified sick leave since 27 November 2018, that this was not satisfactory and that her increments would be stopped. She was also informed she was entitled to appeal or make observations. By letter dated 29 March 2019, it was stated that the Complainant was in breach of Circular 02/2013 as her medical certs were not up to date. The letter concluded that the matter would be escalated if the Complainant failed to submit certificates and maintain regular contact with the HR Governor. Further correspondence was sent to the Complainant on 8 May 2019 stating that her pay increment for the period from 15 April 2019 would be deferred. A further similar letter was sent on 2 June 2020 referring to the period up to 15 April 2020.

By email dated 12 June 2020, Ms P sent the Complainant an email saying she was linking in with all absent staff, saying that correspondence had been unanswered or unopened, and reminded her of the various supports available. In light of this email, which the Complainant stated in evidence she regarded as an olive branch, she contacted the Employee Assistance Officer, who in turn contacted Ms P on 18 June 2020 and said that the Complainant was hopeful of returning to service and would be in touch. The Complainant replied directly to Ms P herself on 23 June 2020 saying she was keen to return to work and remained in close contact with the Employee Assistance Officer about the possibility of doing so. By letter dated 25 June 2020, the Complainant was then informed that medical certificates had not been received for the period after 27 November 2018. The letter also stated that the Complainant should have been removed from the payroll on 28 November 2018 “for being absent without official leave.” It also went on to state that she had been overpaid and would be contacted by the Pay and Pensions Team. The letter concluded by saying that Ms X of the Respondent’s HR Directorate had decided to submit the file of the Complainant to the Secretary General recommending dismissal but that she could make a submission within 14 days for consideration by the Secretary General why this should not happen.

The Complainant’s representative highlighted that at no stage were the processes of SI 289 of 1996 - Prison (Disciplinary Code for Officers) Rules, 1996, utilised prior to the letter of 25 June 2020 having been sent to her by Ms X. These procedures provide a list of “Acts or Omissions by an Officer Constituting Breaches of Discipline” and include: “Absence without leave, that is to say, being, without reasonable excuse, absent without leave form the place where his or her duties require him or her to be.” The Complainant’s representative also highlighted that, significantly, in the letter of 25th June 2020, there was a mischaracterisation of the CMO’s correspondence, and it was stated, incorrectly that the Complainant’s “absence was linked to the refusal of your application for a career break” and highlighted that in fact the letter from the CMO stated that the continuing good service over the years by the Complainant, when others were allowed to take career breaks, had impacted on her overall health. The Complainant subsequently made a submission to Ms X outlining her illness, saying she was awaiting correspondence about when she could take a career break and that she received no correspondence that required a response.

It was later stated by Ms. X in a subsequent letter dated 9 September 2020 that no correspondence had been returned unopened. She also asked for a medical report from the practitioner treating the Complainant since September 2018. Although a letter was provided by the Complainant’s GP, Ms. X stated by letter dated 3rd December 2020 that her previous correspondence stood, that the Complainant had “not provided any reason to explain [her] failure to attend work and …to comply with sick leave regulations.” The Complainant was given 14 days to make a further written submission to the Director General as to why her file should not be submitted to the Secretary General recommending dismissal.

A detailed letter setting out all matters including the fundamental procedural failing of the process was sent on behalf of the Complainant by her solicitors, on 16 December 2020. This again referred to the failures to apply correct and fair procedures, including the Code of Discipline.  Correspondence continued, and it was stated by letter dated 10 February 2021 that the Respondent did not accept that the Disciplinary Code applied. It was not stated why the Code did not apply or what procedures, if any, applied. A further detailed reply was made by letter on behalf of the Complainant dated 17 February 2021. This sought a copy of all documents upon which the Human Resources Directorate intended to reply in recommending that the Complainant be dismissed. The documents were sought so that the Complainant could present her response. In addition, it was outlined by her representative that the allegation of being absent without official leave, which is the basis on which the Complainant was ultimately dismissed, should have been dealt with under paragraph 6.8 of the Attendance Management Policy and Procedures Manual of July 2014, which provides that the Complainant should have been asked by the HR Director for an explanation, and if that was deemed unsatisfactory, the matter should be dealt with under the Disciplinary Code.

It was also asserted by her representative that the Complainant was not provided with any of the procedures as regards warnings in relation to her attendance as required under para. 6.3 of the Attendance Management Policy and fair procedures, despite a request having been made for same on 24 February 2021. By way of response, it was stated that if the Director General of the Respondent agreed with the recommendation to forward the file to the Secretary General of the Department, a copy of the relevant documentation would be provided. This was objected to in detail in the letter dated 10 March 2021 on behalf of the Complainant on procedural and substantive grounds.

In making the decision to forward the file with a recommendation of dismissal, the Complainant’s representative stated the Respondent breached its own fair procedures as set out in the Disciplinary Code because none of the procedures included therein were followed. Specifically, the matter was not dealt with by the Governor as it should have been, but by the Director of the Respondent. In addition,  the Complainant was denied a proper procedure of charge and presentation of a complaint form; an oral hearing into any serious allegations; by-passed the decision-making of the Governor of the Prison where she worked who would have made the decision in relation to the matter, in favour of the Director General of the Respondent; given no appeal as provided under the Disciplinary Code, with the possibility of a Disciplinary Committee with an opportunity for oral submissions and question witnesses. Moreover, and fundamentally, the Complainant was denied the opportunity to know the case against her which was put to the Director of the Respondent in advance of making submissions to the Director. It was not until the decision had been made to recommend her dismissal to the Secretary General of the Department that the Complainant knew the case against her.

It was also highlighted that the documentation sent to the Secretary General again incorrectly characterised the CMO’s correspondence. Within the report to the Secretary General dated 26 February 2021, Ms. X made a variety of unwarranted inferences that were never put to the Complainant, including stating that she “had no intention of resuming duty nor was she in a position to resume duty prior to travelling back to Ireland presumably in early 2020.” This report concluded that the Complainant had abandoned her post and that she had failed to explain her unauthorised absence. Replying submissions were submitted by the Complainant on 2 April 2021 wherein she reiterated the points made by her solicitor, and outlined her medical difficulties, explained the history of her case, and sought that there would not be a dismissal. She also submitted several references in support of herself. By letter dated 3 June 2021, Ms. X stated that it had been decided under the Civil Service Regulation Act 1956 (as amended) that the Complainant should be dismissed from 16 July 2021. No reasons were set out by the Secretary General of the Department or indeed the Director of the Respondent as to why they recommended her dismissal and ultimately dismissed the Complainant.

On 7 February 2018, the Complainant applied for a career break for travel purposes. Her request was forwarded to the HR Directorate in the Respondent’s headquarters by the then HR Governor in the prison. In his forwarding communication to the HR directorate of the Respondent, he stated that: 'due to staffing levels we cannot recommend this application at this time'. On 12 March 2018, the HR Directorate Governor Ms Y wrote to the Complainant stating that it was not possible to comply with her request for a career break due to staffing needs within the Respondent at that time. Through the offices of her Solicitor, the Complainant appealed this decision by way of letter dated 14 September 2018. In the letter it was stated that the Complainant wished to travel to Australia with her wife (an Australian National) whose father had recently passed away. In the letter it was further stated that the Complainant was also suffering from several stress related complaints which had been exacerbated as a result of the Respondent’s decision to refuse her application for a career break. Later that month, a Personnel Officer replied to the Complainant’s solicitor stating that they had considered the Complainant’s circumstances, but due to the organisational needs and staffing of the prison where she worked it was not possible to grant the Complainant a career break at this time. 

On 12th September 2018, the Complainant went on sick leave citing stress. She had previously been out on leave with stress between the 1st - 16th August 2018. The Complainant was referred to the Chief Medical Officer of the Civil Service (CMO) in October 2018 for review. In her report dated 8th November 2018 the CMO stated that the refusal of her career break application had caused the Complainant upset and distress and was the cause of her current sick leave. Accordingly, the CMO recommended that HR re-assess the possibility of granting her a career break, or in the alternative letting her know when in the future a career break may be possible. The Complainant submitted a further application for a career break in November 2018, however, as this had been considered on appeal and as the Complainant continued to be on sick leave, this application could not be progressed.  The Complainant remained on sick leave and on 5th February 2019, as the Complainant had exceeded her paid sick leave limit, she was notified that she was being removed from the payroll. Her entitlement to a pay increment was also deferred due to excessive sick leave. In March 2019 the HR Directorate became aware that the Complainant had failed to provide any medical certificates to justify her on-going absence on sick leave since 27th November 2018.  

On 29th March 2019, a staff member in Attendance Management wrote to the Complainant, via the new HR Governor of the prison advising her that she had an obligation to maintain regular contact with her employer and to provide medical certificates verifying her sick leave. The letter also stated that failure to comply with these requirements would result in “the issue of her retention in the prison service arising.” The letter also advised the Complainant of support services such as the Employment Assistance Programme which was available to her. However, this letter was not responded to.

On 12 June 2020, Ms P in an approach which was applied to several staff members who were long-term absentees, sent an email to the Complainant asking her to re-establish contact with the Respondent and advising generally of the availability of prison support services.  At this point the Complainant contacted the Respondent’s Employment Assistance Programme (EAP) and an Employee Assistance Officer subsequently contacted Ms P on her behalf stating that the Complainant was “keen to return to work.” On 25th June 2020, the Human Resources Directorate wrote to the Complainant highlighting issues concerning her unexplained absence from work and her failure to provide regular medical certificates. As a result, she was informed that a decision had been taken to submit her file to the Secretary General of the Department recommending her dismissal from the Respondent. The Complainant was then given the opportunity to make a submission as to why that course of action should not be followed.

On 7th July 2020, the Complainant replied by letter which was forwarded by an Employee Assistance Officer. She stated that she had not received previous correspondence. She also stated that her reason for her absence was stress and anxiety. In response the HR Directorate asked the prison to confirm the address that all previous correspondence to the Complainant had been sent to. Prior to going on sick leave on 12th September 2018, the Complainant had provided her parents’ address. It was also the case that there was no record of any post having been returned unopened. The Complainant subsequently confirmed that her parents’ address was her correct address.

On 9th September 2020 the HR Directorate wrote again to the Complainant requesting her to attend the CMO. On 18 November 2020, the CMO reported that the Complainant’s GP had seen the Complainant in September and November 2018 and again in September 2020 and that she now 'found her much improved and advises that she is now medically fit to return to work'. On 3 December 2020, the HR Directorate wrote again to the Complainant, enclosing the CMO's advice and noting that she seemed to have received no medical treatment at any time between November 2018 and September 2020 and had provided no explanation for her failure to attend work and to comply with sick leave regulations. Again, in line with the position set out in the correspondence dated 25th June 2020 she was again given 14 days as to why she should not be recommended for dismissal. On 16 December 2020, the Complainant’s Solicitor replied on her behalf, suggesting that her case should be dealt with in accordance with the Respondent’s Code of Discipline and that her client had not been afforded proper procedures. Accordingly, the Complainant’s solicitor submitted that the letters of 25th June 2020 and 3rd December 2020 should be withdrawn. Also accompanying the letter of 16th December, the Complainant’s solicitor attached a psychological report dated 15 December 2020 from a psychologist based in Victoria, Australia stating she had treated the Complainant for stress, anxiety and employment issues on 9 separate dates between 18th December 2018 and 19th May 2020. This was the first time that the Respondent was made aware that the Complainant had been in Australia during her unexplained absence.

On 11th January 2021 the HR Directorate wrote again to the Complainant pointing out that she had been absent from work without official leave since December 2018 and that it further appeared she had travelled to Australia despite her career break application having been refused.

However, on 13th January 2021, the Complainant’s solicitor replied stating that she had advised her client against engaging directly in discussion with the Respondent and requested a comprehensive response to her letter of 16 December 2020. In correspondence from the HR Directorate, the Complainant’s solicitor was informed that the Respondent did not accept that the case should be dealt with by way of the Code of Discipline. In follow up correspondence dated 17th February the Complainant’s solicitor again objected to her case not being dealt under the Code of Discipline and asked for a copy of the recommendation of dismissal so that they could reply to it. On 26th February 2021, the HR Directorate made a submission to the Respondent’s Director-General recommending the Complainant’s dismissal on the grounds that she had abandoned her post, travelled to Australia and been absent without leave for nearly two years. On 18th March 2021, the HR Directorate, wrote to the Complainant stating that the Director-General had decided to submit the dismissal proposal to the Secretary General of the Department. Enclosed was a copy of the submission and the Complainant was advised that she had 14 days in which to make a final opportunity to make a submission as to why she should not be dismissed.

On 2nd April 2021, the Complainant replied to the HR Directorate stating that she had been a conscientious and committed prison officer who had experienced personal and psychological issues and had travelled to Australia to save her marriage after her career break had been refused. In this letter she acknowledged for the first time that she had received the warning letter sent to her on 29th March 2019 but said that she had failed to appreciate its significance at the time. On 20 April 2021, the Director-General of the Respondent wrote to the Secretary-General of the Department stating she agreed with the recommendation that the Complainant be dismissed and recommended her dismissal under the Civil Service Regulation (Amendment) Act, 1956. On 3rd June 2021 the Complainant was informed that the Secretary-General of the Department had decided to dismiss her from the Respondent with effect from 16th July 2021.

The Law

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

Section 6(4) of the Unfair Dismissals Act, 1977 provides as follows:

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 qualification 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 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.

Section 6(6) of the Act states as follows:

In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly of mainly from one or more grounds specified in subsection (4) of this section or that there were other substantial grounds for justifying the dismissal.

Section (6) 7 of the Act, in relevant part, makes provision as follows:

(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had….

(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal,

(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14 (1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7 (2) of this Act.

The Code of Practice

S.I. No. 146 of 2000 of the Industrial Relations Act 1990 Code of Practice on Grievance and Disciplinary Procedures (Declaration) Order 2000, in relevant part, states:

The essential elements of any procedure for dealing with grievance and disciplinary issues are that they be rational and fair, that the basis for disciplinary action is clear,….and that an internal appeal mechanism is available.

The procedures … must comply with the general principles of natural justice and fair procedures which include:

• That employee grievances are fairly examined and processed
• That details of any allegations or complaints are put to the employee concerned
• That the employee concerned is given the opportunity to respond fully to any such allegations or complaints
• That the employee concerned is given the opportunity to avail of the right to be represented during the procedure
• That the employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors, circumstances.

Findings

The combined effect of both the above sections of the Act requires me to consider if the Respondent’s decision to dismiss the Complainant was reasonable in the circumstances and if it was both substantively and procedurally fair. 

In terms of the substantive aspect, it is well established case law that it is the role of the Adjudication Officer to consider the reasonableness of the Respondent’s decision in the circumstances and not to establish the guilt or innocence of the Complainant in relation to the allegations presented. This is set out by the Employment Appeals Tribunal (EAT) in the case of Looney and Co Ltd v Looney UD 843/1984:

“It is not for the EAT to seek to establish the guilt or innocence of the claimant nor is it for the EAT to indicate or consider whether we in the employer’s position would have acted as it did in its investigation or concluded as it did in its investigation or concluded as it did or decided as it did, as to do so would be to substitute our own mind and decisions for that of the employer.  Our responsibility is to consider against the facts what a reasonable employer in his position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s actions and decisions are to be judged.”

The function of the Adjudication Officer is therefore to assess what a reasonable employer in the Respondent’s position and circumstances might have done and this is the standard by which the Respondent’s actions must be judged against. Specifically, in this case, it is my role to decide whether it was reasonable for the Respondent to dismiss the Complainant on the basis that she was absent without leave for approximately 18 months. In making this decision, I note that on 29th March 2019, four months after the expiry of the last medical certificate explaining her absence, the Respondent wrote to the Complainant informing her that she had an obligation to maintain regular contact with her employer and to provide certificates verifying her sick leave. Crucially, the letter also stated that failure to comply with these requirements would result in “the issue of her retention in the prison service arising.” This correspondence was not replied to by the Complainant however and there was no evidence presented to suggest that it was not received by her. While it is incomprehensible that the Respondent did not seek to contact the Complainant for another 15 months on 12th June 2020, when Ms P wrote to her, and I am of the view that this subsequent correspondence should also have included a suggestion that her employment was at risk, I recognise that the Complainant was aware that her position with the Respondent was at risk from the 29 March 2019 letter as well as what her obligations were and do not accept the suggestion that she was not aware of the significance of the aforementioned letter at the time.

Prior to deciding whether the Complainant was unfairly dismissed however, I must also examine if the dismissal was procedurally fair.

I note firstly that the Complainant’s representative highlighted, in making the decision to recommend her dismissal, that the Respondent breached the procedures set out in their Disciplinary Code, stipulated in SI 289 of 1996 - Prison (Disciplinary Code for Officers) Rules, 1996 given that none of the procedures contained therein were adhered to. Specifically, the Complainant’s representative stated that as one of the acts or omissions by a Prison Officer, constituting a breach of discipline included in the aforementioned Disciplinary Code, is “Absence without leave, that is to say, being, without reasonable excuse, absent without leave form the place where his or her duties require him or her to be”, the matter should have been dealt with in accordance with the procedures of that Code.

While the Respondent’s representative asserted that the provisions of their Disciplinary Code only applied to short term absences and not to someone who had been absent without leave for over 18 months, the Complainant’s representative disputed this and stated that the Disciplinary Code should have applied for an absence of any period given that it does not explicitly state otherwise. While I make no finding on whether the Respondent’s Disciplinary Code should have been followed in the instant case, the Respondent should nonetheless have adhered both to the procedures outlined in S.I. No. 146 of 2000 Industrial Relations Act 1990 Code of Practice on Grievance and Disciplinary Procedures (Declaration) Order 2000 as well as the principles of natural justice if the dismissal is deemed to be procedurally fair.

The importance of procedural fairness was highlighted by the Supreme Court in the matter of Glover v BLN Ltd [1973] IR 388 where, like the instant case, the 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. In that case, notwithstanding the assertion by the defence that the evidence of wrongdoing on the part of Mr Glover was so overwhelming that the absence of a fair hearing on the charges against him made no practical difference to the result, 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”

Another much quoted case on the importance of observing the rules of natural justice in all circumstances in which misconduct is alleged, is that of Megarry J in John v Rees [ 1969] 2 WLR 1298 which arose from a serious dispute within a constituency association of the British Labour Party. Several 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. 

It is clear from these authorities that, in law, there is no such thing as an open and shut case and that a person accused of wrongdoing is entitled to a fair hearing in accordance with the rules of natural justice. 

In considering whether the Respondent adhered to both the procedures outlined in S.I. No. 146 of 2000 Industrial Relations Act 1990 Code of Practice on Grievance and Disciplinary Procedures (Declaration) Order 2000 as well as the principles of natural justice in relation to the Complainant’s dismissal, I have regard firstly to three pieces of correspondence, namely those of the 12th, 23rd and 25th June 2020. The first of these was an email from Ms P, a Governor, sent to the Complainant on 12th June 2020, seeking to establish why she had not been at work for some time and informing her of the supports available.In her reply to Ms P, on 23rd June 2020, the Complainant stated that she was “very keen to return to work” and had engaged with the Employee Assistance Programme, the details of which had been provided as one of the supports in the 12th June 2020 letter. Despite this mail, the Complainant did not receive a reply from Ms P and the next she heard from the Respondent was a letter from Ms X of the HR Directorate on 25th June 2020 stating that her failure to maintain regular contact with her HR Governor “was a serious breach of [your] terms and conditions of employment”. The letter further stated that this breach had resulted in Ms X’s decision to “submit the Complainant’s file to the Secretary General of the Department of [name removed] recommending [your] dismissal from the Prison Service. I need to emphasise to you that the situation is extremely serious, and that the question of your retention in the Prison Service is under active consideration at this time. Prior to making such a recommendation, you are hereby afforded the opportunity to make a written submission to myself for consideration by the Director General of the  Prison Service as to why such an action should not be taken.”  Having reviewed the content of the three pieces of correspondence, I am of the view that the finding the Complainant breached the terms and conditions of her employment was made without regard to the procedures outlined in S.I. No. 146 of 2000 Industrial Relations Act 1990 Code of Practice on Grievance and Disciplinary Procedures (Declaration) Order 2000as well as the principles of natural justice. Specifically, any allegation that the Complainant breached her terms and conditions of employment should have been put to her by Ms X in advance of the 25th June letter and she should have been given the opportunity to respond to it, prior to any finding being made, in accordance with procedural fairness.

As well as choosing to ignore any fair procedures whatsoever in deciding that the Complainant breached the terms and conditions of her contract, I also noted that the Respondent effectively suspended the Complainant without pay when she was not allowed to return to work after a report of 18 November 2020 from the Chief Medical Officer (CMO)’s office wherein the doctor stated that she had “no difficulties with {the Complainant} returning to work if she is certified medically fit to do so”  which followed a certification of being fit to work from her own GP on 22 September 2020. While Ms X disputed when questioned by me that the Complainant had been suspended, I find this assertion to be extraordinary and do not understand what the point was in sending her to the CMO if the Respondent had no intention of allowing her back to work. Having been provided with no satisfactory explanation as to why she was not allowed to return to her employment, despite having received the appropriate medical clearance to do so, I find that there is no way to describe the Complainant’s status at the time other than to say that she was suspended without pay.  As well as the suspension without pay being a sanction in its own right and a significant indication of prejudice by the Respondent, I find that what made matters even worse from a procedural fairness point of view is that the employee, Ms X, who made the decision to impose the suspension without pay was the same person who carried out the investigation and recommended her dismissal to the Director General of the Respondent.

I note that in McLoughlin v. Setanta Insurance Services [2012] 23 ELR 57, Laffoy J granted an interlocutory injunction restraining a disciplinary process because it was found that the human resources manager went beyond investigating the matter at issue and had already made findings of fact before any disciplinary hearing had taken place, as Ms X clearly also had in the instant case which is evident from her letter of 25 June 2020 cited above.

In a further example of procedural unfairness, I also find that the Respondent augmented the allegations made against the Complainant when Ms X wrote to the Director-General on 26th February 2021 recommending the Complainant’s dismissal on the grounds that she had abandoned her post, travelled to Australia and was absent without leave for nearly two years. This was despite no reference being made to the Complainant having travelled to Australia in the original letter sent by Ms X to the Respondent on 25 June 2020 wherein she was informed that a decision had been taken to submit her file to the Secretary General of the Department recommending her dismissal from the Respondent because of her unexplained absence from work and her failure to provide regular medical certificates. This decision by Ms X to augment the allegations is at odds with the suggestion of Mr Des Ryan BL at para 13.72 of Redmond on Dismssal Law (3rdEd., Bloomsbury Professional, 2017) where he stated:

“Heavy emphasis has been laid in recent case law on the duty on an employer to set out clearly allegations made against an employee from the outset, with the employer not being permitted to augment the allegations as the investigation progresses. This is because an employee is entitled to be informed at the outset of the complaint(s) being made against him or her in order to ensure he or she has a meaningful opportunity to prepare and present his or her defence.”

The above was quoted by the Labour Court in the case of Ibrahim Salah v  RCI Call Centre (Ireland) Limited UD/18/121 where it was found that “the introduction mid-process, of two additional disciplinary allegations against the Complainant leads the Court to question whether or not there was an impetus at work within the Respondent, for whatever reason, to build as strong as case as possible against the Complainant in order to ensure his demise”.

Having received a recommendation from the Director General that the Complainant’s employment should be terminated, the HR Directorate then wrote to the Secretary General of the Department on 20th April 2021 recommending that the Complainant be dismissed. While the Secretary General appeared to have agreed with this decision, according to the termination letter of 3rd June 2021, which, bizarrely, was signed by Ms X and not by the Secretary General who made the decision to dismiss, I note, once again that, in making this decision, neither the principles of natural justice nor the procedures in S.I. No. 146 of 2000 were adhered to. While the above procedures do not explicitly provide for an oral hearing, I am satisfied that as they provide for the right to representation, the right to a face to face meeting prior to a dismissal is implicit and the Complainant should have been both given the opportunity to present her case in person to the party who made the decision to dismiss her, namely the Secretary General of the relevant government Department, and afforded the right to representation at such a meeting. Moreover, I find that, while the Complainant was invited to make representations in writing to the Secretary General prior to the decision to dismiss her, the decision was tainted with unfairness because although the Director General of the Respondent had recommended to the Secretary General that the Complainant be dismissed, the Complainant was denied the opportunity to know the case against her which was put by Ms X to the Director General of the Respondent in advance of making submissions to the Director General. Indeed, it was not until the decision had been made to recommend her dismissal to the Secretary General that the Complainant knew what the case against her was.

I further noted that although the decision to dismiss Complainant was ultimately made by the unnamed Secretary General of the Department, there was no reason whatsoever given in the termination letter either as to why the decision to dismiss her was made or what the basis for it was. In addition, there was no reference made to an appeal in the termination letter. I find that the failure both to explain the basis of the Complainant’s dismissal and afford her the opportunity to appeal the decision is once again contrary to both the principles of natural justice as well as the procedures in S.I. No. 146 of 2000.

The importance of an appeal mechanism has been also highlighted in many decisions such as in An Employee V An Employer ADJ-0000381 where the Adjudication Officer stated:

“An appeal is not just an afterthought or a procedure that must be completed as a matter of course.  It is a very important part of the disciplinary process and the greater the sanction that has been imposed the greater its importance.  An appeal allows a dismissed employee the last chance to make their case, highlight any mitigating factors and seek protection for faulty procedures or disproportionality of sanction.”

As highlighted above, Section (6) 7 of the Act says that in determining if the dismissal is unfair, I may have regard:

b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14 (1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7 (2) of this Act.

I have outlined in detail above that the Respondent’s conduct in this case was wholly unreasonable as well as unfair and have highlighted the flagrant and extraordinary breaches of the procedures outlined in S.I. No. 146 of 2000 Industrial Relations Act 1990 Code of Practice on Grievance and Disciplinary Procedures (Declaration) Order 2000, namely the procedures referred to in paragraph (d) of section 7 (2) of this Act.Instead of adhering to these, I find both that the Respondent concocted an extraordinary and utterly bizarre set of procedures devoid of any sense of fairness whatsoever, and that their conduct was throughout the process hugely prejudicial. Accordingly, I find that the dismissal of the Complainant was unfair.

Section 7 of the Unfair Dismissals Act which, in relevant part, states that:

(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, 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,

(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,

Having found that the Complainant was unfairly dismissed, I must now consider the remedy and note that the Complainant is seeking re-instatement or failing that re-engagement.

In considering the appropriate remedy, I noted firstly the compelling evidence from Ms X at the hearing surrounding the reasonableness of the dismissal and the absence of any supporting medical evidence from the Complainant for the period of her absence. While the Complainant’s representative asserted that the maximum loss arising from the dismissal would exceed €160,000, there was no compelling evidence in this regard presented by the Respondent, and I am unsure if the estimate provided by the Complainant’s representative was reasonable, in the absence of any actuarial assessment to support the loss of her pensions entitlements. . In addition, I noted that the Complainant had a blemish free record from when she started her employment with the Respondent in 2007 until she went on leave in 2018.   I also noted the Complainant’s direct evidence that she was aware of several other Prison Officers who turned up to work either drunk or under the influence of drugs but who were not dismissed and note that her evidence in this regard was not challenged in cross-examination. I am also of the view that the purported reason behind her dismissal, namely her unauthorised absence from work, although this was not stated in the termination letter or presented in direct evidence at the hearing, should not cause the Respondent to lose trust or confidence in her ability to conduct herself properly during her important day to day duties.

Having regard to all of the above as well as the evidence of the witnesses and the submissions provided by counsel on both sides, I find that the Complainant should be re-engaged as a Prison Officer, with effect from the date of this decision. The period from the date of her unfair dismissal on 16 July 2021 to the date of her re-engagement is to be regarded as a period of unpaid suspension.