Complainant

Respondent

Parties

Pat  Gorman

Inland Fisheries Ireland

Representatives

Marie O'Connor SIPTU

Tiernan Lowy BL instructed by Rhona Murphy Byrne Wallace

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-00053507-001

02/11/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00055061-001

14/02/2023

The Complainant had worked for the Respondent state agency for over 37 years until his dismissal in October 2022.

In January 2022 the Department of Agriculture, Food and the Marine received an anonymous and undated letter alleging that the Complainant had improper use of a tractor belonging to the Respondent.

The Respondent immediately moved to suspend the Complainant and initiate an investigation. The Respondent would receive several more anonymous letters regarding the Complainant. None of the allegations contained in these letters were proven to be true. In particular, the tractor that the Complainant had at his farm was stored there with the agreement of his line manager as there was no shed storage available for it at the Cong Hatchery, the Respondent’s local base of operations.

When the Respondent suspended the Complainant, he was directed to return the tractor as soon as possible. He proceeded to go home and asked his teenage son to drive the tractor to the Cong Hatchery. The Complainant drove in his car behind the tractor. The Complainant accepts that this was a massive error of judgement and submits that he was under huge stress at that time.  

That same evening the Complainant had been told about illegal fishing on one of the loughs by reliable informant. After dropping the tractor back, the Complainant hooked one of the Respondent’s ribs up to his car and drove back to his house. He proceeded to go out on Lough Mask unaccompanied and while he was suspended from his duties.

Once the Respondent discovered these two incidents, they were added to the investigation against the Complainant. It was for these actions and not the anonymous disclosures that the Complainant was dismissed.

The Complainant submitted a complaint under the Unfair Dismissals Act on the  2nd of November 2022. A further complaint was submitted under the Organisation of Working Time Act in February 2023.

These issues were heard over two days on the 10th and 11th of July 2023.  

The Complainant’s Union submitted detailed written submissions. In addition to the Unfair Dismissal case they are also pursuing their claim under the Organisation of Working Time Act. The Respondent under calculated the Complainant’s accrued annual leave upon his departure by 3 days. They later paid it. The Complainant is seeking compensation for this delay in payment.

Evidence of the Complainant

Mr Pat Gorman gave evidence under oath. He began working for the Western Regional Fisheries Board in 1985 when he started working in the Cong hatchery.

His career at the organisation progressed very quickly thereafter. He was made Assistant Inspector and then Inspector in 1987.

This was during a tumultuous period for the organisation. The government had tried to bring in a rod license and the resulting dispute had left a lot of burnt bridges. There had been two year of a boycott and widespread intimidation of staff. It was an extremely difficult time.

In 2020 he was promoted to role of director. He and another colleague both received a 2 year contract but the intention was to roll the contract on. The other colleague was reappointed. He was dismissed.

He had received positive and glowing reports throughout his career.

Generally, he worked out of his home and the Cong Hatchery. All the business of fisheries in his area were carried out from his house. If someone wanted to be issued a license, they called to the house.

At 4pm on the 1st of February 2022 he received a call from Mr Greg Forde, the head of operations and his line manager. He informed him that he was at the Cong Hatchery and asked him to come down.

When he got there, both Mr Forde and the CEO Mr Francis O’Donnell were waiting for him. 

He was totally oblivious to what would happen next and started talking to Mr O’Donnell about work. Mr O’Donnell then handed him an envelope and told him that he had received an anonymous letter, which was being dealt with as a protected disclosure. The letter was a letter suspending him.

He doesn't recollect much from then. The only thing that sunk in was that he was being suspended.

He did have an IFI tractor on his farm. They had procured it under the TAM project and it had been used for that purpose. A colleague named Tony Burke looked after it at that time. He had housed and maintained it and the Respondent didn’t have a building to put it in.

When that colleague retired, it was moved to the Complainant's farm. He would run it occasionally to be moved or for upkeep. He didn’t charge the Respondent for storage and he didn’t think to.

Greg Forde would have seen it around the Complainant’s house, which he had been to on many occasions. Mr Francis O’Donnell had also been to his home.  

Since Mr O'Donnell's appointment, they had gotten very friendly and their families had socialised and gone on hikes. 

At the meeting when he was suspended the Complainant was asked had he been using the tractor on his farm and whether his sons had used it? The Complainant was clear that the answer to both was no. 

The Complainant was told that they needed the tractor back. He was specifically told that they needed it back immediately that night.

He was very shaken after this meeting. Greg Forde asked him how he was and told him he felt sorry for him and what someone was doing to him. No one offered to drive the Complainant home. This interaction happened in full view of staff. It couldn't have been done in a worse location, Cong Hatchery is known for gossip.

He drove home. There are two roads to his home from Cong Hatchery and he still doesn’t know which road he took that evening. He had to face his wife and five kids and tell them he was out of work. He was very upset.

When he got home he arrived to find a man standing in yard waiting for him. A person who had previously acted as an informant. This person had seen two boats on lake, going parallel. They were combing in a grid fashion. There had been issues with people breaching the ban on eel fishing. The season hadn’t opened yet.

He couldn’t bring himself to tell the man he couldn’t do anything and said he would look into the matter.

 That night was very difficult. They were supposed to have a family celebration instead, they read through the letters given to him by Mr O’Donnell. The Complainant’s wife became extremely upset.

The letter told him not to be on any IFI site or contact any IFI staff. If he needed help with something, he would normally call his nephew or brother who both worked for the organisation but he felt that he could not do so because of the letter.

He went over to the farm and brought his son with him. His son is a very capable driver. The Complainant directed him to drive the tractor with him to Cong and drove in front of him with his hazards on. They took a back road to the hatchery and no issues arose on the way over.   

He was aware the hatchery had CCTV as he had it installed. He did not try to hide what he was doing. 

He brought a rib back with him to his home. On the way, he stopped off the shop. There, he ran into someone who he had prosecuted in the past. This person had already heard about his suspension and gloated to him.

The Complainant has a slipway on his land, which was used frequently by IFI to access Lough Mask. The following morning he launched the boat onto the lake and went out to area identified by the informant. He did not discover any illegal fishing. 

He returned his laptop to Mr Greg Forde later that morning. Both he and Mr Forde were shook by what had happened. Mr Frode told him not to drive his IFI jeep and he told Mr Forde that he had an IFI boat at his house and they arranged for it to be dropped back in the evening.

He went to his GP and was prescribed sleeping tablets and antidepressants. He carried on in a state of shock. Both he and his wife engaged with the EAP but found it difficult. They would never get the same person twice.

The Complainant went through the investigation report, which he found to be fair overall. He could see from the report that the CEO asked to speak to the investigator off the record. He seemed to be trying to dictate the course of the investigation which worried the Complainant.

The Complainant then referred to the disciplinary hearing. He felt Ms Bradly had her mind made up and didn’t accept what he was saying.

Ms Bradley factored in an issue which had been resolved in the course of the investigation which was the breach of the fuel policy. There is a tight season each year when the IFI are required to hire in temporary vehicles. These get fuelled by using different diesel cards, including the one for the tractor on his farm. This was the practice across the West, not just Galway. But this was given as a reason to dismiss the Complainant.

On the evening he was suspended, he believed he was required to return the tractor to the IFI premises no matter what. He felt he couldn’t contact his brother or nephew as he couldn't contact staff. It was a genuine mistake made under stress and he and his family will never recover from it. His family has been ridiculed in the community. As the anonymous disclosures submitted against him related to the alleged misuse of public assets, people in his community formed the view that this was why he was dismissed.  

Following his dismissal he submitted an email to the IFI inquiring about his pension lump sum. He was thinking about selling his home and relocating and needed to get an idea of his pension benefits. The email bounced back as people were on leave and eventually went to P/A of CEO.

Two days later he received a handwritten letter referring to his request for his lump sum and referring to the allegations against him and telling him to “think of the lads” . He took the final line as a threat to his sons. He didn’t know who could know about his request, but it had be very senior in the organisation. The matter was brought to Gardaí.

On the 10th of January 2023 the director of finance wrote to the Complainant seeking €3,301 for fuel. This shocked the Complainant as the issue of the use of fuel had been resolved in the investigation but the IFI still persisted in claiming he had misused fuel. When he replied, pointing this out he got a holding letter and no further information.

Cross Examination of Complainant.

The Complainant was cross-examined by Tiernan Lowy BL.

He was promoted out of his inspector role in 2020. He accepted that he was working at a senior level in the company at the time of his dismissal and that the Respondent needed to have a high degree of trust and confidence in him to perform this role.

He agreed that the Respondent was required to investigate the anonymous complaints against him but he never understood why he wasn't given an opportunity to explain the situation about the tractor on the 1st of February and instead was immediately suspended.

He does not think it was reasonable to issue a sanction against him regarding the way the tractor was returned because of the mitigating circumstances involved. From the beginning, he put up his hands and didn’t try to hide anything.

The Complainant explained his hands-on role regarding Lough Mask. It is an extremely tricky lake with a fluctuating water level. Those who had previously worked on it were all retired. His successor in his inspector role was focused on Lough Corrib and other lakes.

He accepts that going out alone on the lake is not normal. He felt he couldn’t contact any other staff and no other officer could take the boat out on Lough Mask. He got his daughter and wife to perform shoreline backup. He has been on the water since he was a child and is extremely competent in handling boats.

He accepts that he was suspended at the time and didn’t tell Mr Forde about this patrol despite their interaction later that same morning. He wasn’t thinking logically at the time. Generally, they try to respond to informant reports quickly.

He was very disappointed in Mr Forde for not notifying the CEO before he was suspended that the tractor was on the Complainant’s land by arrangement.

He generally feels the investigation was fair. He accepts he did not object to Ms Bradley conducting the disciplinary hearing. He had spoken to Ms Bradley about EAP and medical expenses on an ongoing basis so she knew he was seeking medical help at the time.

The Respondent submitted written submissions and a number of key staff gave evidence. 

There had been a significant breach of trust and confidence regarding the Complainant. His actions, particularly in allowing his son to drive a company tractor on a public road, resulted in his dismissal. This was fair and reasonable and certainly within the band of reasonable responses open to the Respondent.

A robust process was put in place to determine this matter and the Complainant had the full benefit of representation throughout. There had been an independent investigation and a separate disciplinary hearing followed by an appeals process. The Complainant's dismissal was ultimately upheld on appeal.

This was a difficult matter for the Respondent to deal with. The Complainant is a longstanding employee and this was taken into account.

They determined, quite reasonably and on the balance of evidence that the Complainant’s judgement could not be trusted.

The Complainant accepts the facts behind his dismissal and  Respondent does not believe his error in asking his son to drive can be justified in all the circumstances. It was 5 hours after the meeting in Cong Hatchery that the Complainant returned the tractor with his son and took the rib.

This matter was initially prompted by anonymous disclosures which weren't upheld. It wasn't possible to identify the accuser but as a public body the Respondent considered it important to investigate these matters. Suspension was a holding measure to ensure the integrity and confidentiality of the investigation process.

Evidence of Ms Roisin Bradley

Roisin Bradley gave evidence under oath. She outlined that she is the Respondent's head of HR based in their headquarters in Citywest. She oversees a team of seven.

She provided background to the role of the Respondent. It is a statutory regulatory authority for inland fisheries and sea angling. The Western Regional Fisheries which the Complainant worked for was merged with the other boards in 2010 to form the Respondent.

Ms Bradley gave an overview of the Complainant’s history working with the Respondent. He was in a senior role at the time of his dismissal and was a warranted officer of the state with powers to stop, seize, search and prosecute.

The Respondent sometimes receives anonymous disclosures. DPER guidance provides for this and they have to consider these disclosures. There had been previous anonymous disclosures before the Complainant. These are normally reviewed by a member of staff with the Respondent who is at Assistant Principal grade. This is the grade below the Complainant. When the disclosure was received by the Department of Environment, Climate and Communication it was handled by a Principal Officer who liaises with the IFI on behalf of the Department. This person gave it to the CEO with instructions to investigate the matter. The CEO liaised with both Ms Bradley and the former head of operations, the Complainant’s line manager Mr Forde.

Specifically, the allegation was that the Complainant had an IFI tractor on his farm and it was regularly used by not just the Complainant but his two sons also.

Ms Bradley provided some advice at this stage and assisted in drafting the suspension letter. However, she suggested they take legal advice and that the CEO needed to keep her out of the matter so she could take on roles if the matter progressed. She did counsel the CEO and Mr Forde not to ask the Complainant any questions at the suspension meeting and to leave that to an investigation.   

They decided to pursue the matter under the investigation section of the disciplinary policy. This allowed representation and other fair procedure rights. A third-party investigator was appointed.

It wasn’t her decision to suspend the Complainant, but she is sure that due to consideration was given when that decision was made. It is often difficult to make a decision like that. There was a concern about any inference of interference with the investigation process. Suspension was for the protection of both the Complainant and the Respondent.

Ms Bradley understands that the Respondent intended to rely on the fuel cards to determine what had happened. Fuel cards should have a name or vehicle clearly associated with them and are meant to be used for the machinery they are assigned to. 

It was Ms Bradley’s intention that the investigation should take about four to eight weeks. It became protracted due to a dispute regarding the Terms of Reference. There was no objection to Ms Bradley being the decision maker for the disciplinary hearing which followed the investigation.

Around the time of the suspension, Ms Bradley was in touch with the Complainant about the EAP. He was also in touch with Mr Forde to arrange return of his laptop. The tractor could have been taken back at any stage with the assistance of Mr Forde.

It was not necessary to return the tractor that very same evening. She had not seen the tractor herself but reviewed a photo of it. It seemed like a serious piece of machinery.

The Complainant returned the tractor with his son driving that evening. He then picked up a RIB and hooked it up to his car.

The following morning the Complainant met Mr Forde at the Complainant’s home to collect the laptop. He pointed out that there was a rib up in the yard if Mr Forde wanted to take it. He never said he took it the night before nor that he had gone out on the lake. The Complainant’s level of management does not normally go out for inspection. You would expect the matter to be referred to a local inspector.

The Complainant retained access to an online email portal so he could still be contacted.  

Soon, further allegations were received by the Respondent. At first, these continued to focus solely on the Complainant. Then a flurry of complaints were received; some of these were quite malicious and contained comments about staff, gossip and even home addresses. Some of these letters were sent to the Department, others directly to the Respondent.

Most allegations were investigated. Where the Respondent could establish from the outset that there was no basis to claim, then they would not investigate it further and keep the issue confidential.

A fresh terms of reference was issued on the 16th of February 2022, encompassing the wider set of allegations, including the Complainant's actions right after his suspension.

Ms Bradley was not involved in the investigation as it was handled by the external investigator. However, she was acutely aware the Complainant had been through a lot. She was doing everything she could to keep the process as confidential as possible. She believes that the ongoing anonymous letters concerning him must have been a source of stress and she tried to ensure he had support via the EAP. Over time it was reported to Ms Bradley that there were ongoing leaks. She looked into this and reminded each of the individuals involved in the investigation how serious it was for them to breach confidentiality. She contacted each member of staff being interviewed and was clear that breaches in confidentiality would result in disciplinary action.

Ms Bradley then referred to the disciplinary hearing. 

The Complainant accepted that his son had driven the tractor on a public road. She heard him out on this issue but ultimately, he did not have sufficient reasons for this serious error. The Complainant’s evidence was that he wasn’t thinking clearly. Ms Bradley thinks he should have gotten the Respondent to retrieve the tractor. No one was insisting that he had to return the tractor immediately.

The Respondent’s staff are involved in dangerous work. They take health and safety very seriously. Senior management need to lead by example.

Regarding the Complainant taking out the RIB, it is unacceptable for staff to be on a boat alone. When it occurs, there needs to be shore back up, which is someone keeping tabs with you via radio who would have an idea where your last point of location was at any given time. The Complainant said his wife had been his shore backup. Even if he wasn’t on suspension he shouldn’t have responded to the information he had by himself.

The decision in the Complainant's disciplinary hearing was extremely tough. Ms Bradley was clear that she was the only person who made the decision. She was cognizant of the Complainant's service to the organisation.

She found it very difficult to understand him allowing his son go out in the tractor. Going out on patrol by himself while on suspension was also extremely concerning. Ultimately she didn’t believe the Respondent could have trust and confidence in him after that.

I then asked Ms Bradley about her involvement pre the disciplinary hearing.

She recalled that the disclosure came in on a Thursday or Friday. She found out about it on the Monday. The CEO was dealing with it. She advised him on the process and suggested that he speak to their solicitors.

The CEO decided that the Complainant was being suspended she didn’t advise on the decision. The CEO dealt with their solicitors directly. She did talk the CEO through the process of how to suspend the Complainant but she did not take a view on the merits of the decision. 

After that she managed the process. She helped draft the Terms of Reference and respond to the Complainant's solicitor's queries. She organised the external investigator and when the leaks became an issue she undertook an exercise to try and stop them.

She was conscious that if there was going to be a disciplinary hearing she was going to be the one sitting in it. The Complainant never objected to her hearing the matter.

Ms Bradley understood that there is a difference working for the Respondent as a member of head office living near Dublin as opposed to someone like the Complainant who works in a part of rural Ireland where the work of the Respondent is very relevant. For instance, her neighbours wouldn’t know where she works. But she recalled a situation where a frontline member of staff was having his IFI vehicle taken off him due to a reorganisation. That person was very concerned as to what his neighbours would think once they noticed that the vehicle, which would normally be parked in front of his house, was gone.    

However, despite all this they cannot have different rules for different employees based on geographic region. Ms Bradley’s trust and confidence in the Complainant was not altered because of where he worked.

Cross Examination of Ms Bradley

Ms Bradely was then cross-examined by Ms Marie O'Connor of SIPTU

She accepted that the disciplinary procedure was corrective rather than punitive. She also accepted that the Complainant had an unblemished record of 37 years of service. She took this into account.

It was not her decision to suspend the Complainant.

Ms O’Connor referred to the Protected Disclosures policy and pointed out that there was no provision for the CEO in the policy.

Ms Bradley explained that the initial disclosure went directly to the CEO from the Department. The authorised person under the policy was not informed.

Ms Bradley confirmed that the CEO took it upon himself to examine the fuel cards and added the allegation that the Complainant was using fuel from the Respondent for work carried out on his land.

Ms O’Connor asked Ms Bradley about the pressure on the Complainant to return the tractor. Ms Bradley insisted that it was not necessary for him to return the tractor that evening and they would have made arrangements if he couldn’t have.

Ms Bradley was further cross examined about some of the further letters submitted against the Complainant. She agreed that these became unacceptable and were targeting the Complainant’s family more generally, several of whom were involved with the Respondent. 

Ms Bradley was cross-examined on the Respondent's reaction to other issues

 which could have been dealt with as disciplinary matters but weren't.

She doesn't believe the decision to dismiss the Complainant was disproportionate. He could have caused an accident. She accepts country life is different but that doesn't mean what the Complainant did was okay.

Evidence of Suzanne Campion

Suzanne Campion gave evidence under affirmation.

She is a longstanding member of the staff with the Respondent and was Head Business Development at the time of the Complainant’s dismissal. She was assigned to hear the appeal.

Ms Campion had no prior involvement in the matter but she is part of the Senior Management Team. The issue was never discussed at SMT meetings but there were rumours about it.

The Respondent decided to add another person to the appeals process as the issue concerned a longstanding member of staff who was looked up to by others.

Barry Fox was new to the organisation. He didn’t have any previous part to play.

They were supposed to hear the appeal mid September 2022 however the Complainant then got an anonymous letter threatening him.

Ms Campion considered it a very difficult case. She had known the Complainant as a colleague and thought highly of him.

She accepted that the Complainant’s line manager, who knew about the tractor being stored on his farm, didn’t speak up at the time of suspension. She considered this strange.

She doesn’t think there was any excuse for the Complainant to have the son drive the tractor. It could have resulted in serious reputational damage for the Respondent. She understands that in the context of the Complainant’s locality having a teenager drive a tractor might not be as big an issue. But the Respondent is a national organisation and have across the board standards that they have to uphold.

She notes that the Complainant was not thinking straight at the time. She can’t judge whether he was under a state of shock. But everyone has uphold safety standards, particularly management. No harm no foul is not an appropriate position in these circumstances.

The Complainant raised the lack of confidentially throughout the process in the appeal. Ms Campion accepts that the Respondent organisation is always rife with rumours. The breaches in confidentiality didn’t have any impact on the decision to dismiss the Complainant. The issue confidentiality didn’t have anything to do with trust and confidence.

Ms Campion explained that the Complainant was a really influential person within the organisation. They considered demotion or suspension but it could set a bad precedent to let him off considering the seriousness of the offence.

Cross-examination of Ms Campion

Ms O’Connor cross-examined Ms Campion.

Ms Campion is clear that she didn’t discuss the case with Francis O’Donnell. She did consult with the legal team.

She accepted that he had held his hands up and admitted what he did was wrong. People do make errors and the Complainant never been through a disciplinary process before.

She cannot speak to the Complainant’s state of mind. Jobs in the IFI are high risk and senior staff need to be able to make serious judgement calls.

She was extremely shocked about the letter sent to the Complainant ahead of the appeal. She wasn’t sure what some aspects of it referred to but what was important was what he thought it meant. It must have been extremely stressful for the Complainant.

Ms Campion agrees that working for the IFI in the West is a badge of honour. She understands that perception could have been created that the decision to dismiss the Complainant was due to alleged misuse of public assets. But that wasn’t what he was dismissed for.

Evidence of Barry Fox

Mr Barry Fox gave evidence under affirmation.

He is Head of Operations. If he was in post at the time he would have been Complainant’s line manager. He holds a Masters in Investigative Practices.

Has been involved in 10 disciplinary investigations previously.

The first time he met the Complainant was at the appeal. He agrees with the evidence Ms Campion gave. They took time to go through the grounds of appeal.

In the end there were two instances of misconduct and they considered each in isolation.

The first was the use of rib by himself. In his role the Complainant would be very aware of the steps taken ahead of any boat launch. He should have been aware of these actions.

It’s normal to receive information from reliable sources. It would not be normal from someone at director level to head out by themselves. Mr Fox cannot speak to his state of mind at the time. But it was always open to him to contact other staff to deal with the issue that had arisen.

This was a serious matter in of itself but he doesn’t think it would result in a dismissal.

The use of the tractor by the Complainant’s son is much more serious. Mr Fox and Ms Campion met three times after the hearing. Then came to the decision together. It wasn’t an easy process and no one else influenced it.

Unfair Dismissals Act

It is common case that the Complainant has the requisite service to be covered by the protections afforded under the Unfair Dismissals Act.

Section 6 of the Unfair Dismissals Act outlines that any dismissal is an unfair dismissal contrary to the act, unless there are substantial grounds justifying the dismissal. It is for the Respondent to prove that such grounds exist and that they were the cause of the dismissal.

The Respondent argues they were entitled to dismiss the Complainant as Subsection 4 (b) provides that a dismissal shall not be an unfair dismissal if it results wholly or mainly from the conduct of the employee.

In examining the reasons given for the Respondent’s decision to dismiss, i.e. the conduct of the employee, the approach I am required to take is well established. As outlined in British Leyland v Swift and endorsed in this jurisdiction in Bank of Ireland v Reilly, my role is not to take the place of the Respondent consider whether in my view that the conduct of the Complainant ought to have resulted in his dismissal, but rather whether a reasonable employer might have reasonably dismissed him for the reasons given. An element of discretion is given to the Respondent in this approach by recognising that a band of reasonableness exists within which one employer might reasonably decide to dismiss but another might reasonably decide not to.

Section 6 requires the Respondent to demonstrate not just that “substantial grounds” exist which establish that the dismissal was within the “band of reasonableness” but that the dismissal occurred because of those “substantial grounds.” As such a key issue to be determined in any Unfair Dismissal Act case is whether the “substantial grounds” put forward by the Respondent were properly arrived at, that is arrived at following a fair process.

Omissions from the Decision

The Complainant on a number of occasions brought up wrongdoing or potential wrongdoing by other members of staff and asked why these incidences did not result in dismissal or disciplinary action. I was of the view that none of these incidents were similar enough to the facts of the Complainant’s case to have any bearing on this decision. As these matters were not relevant and tend to involve third parties not at the hearing I have avoided including them in this decision.

The Decision to Suspend

The IFI is a state body but it does not strike me as a faceless or impersonal one. The evidence is that the Respondent is a close-knit organisation. Senior management does not appear detached and seems to understand the organisation and culture well. The IFI has a lot of longstanding staff and I believe management knows that this comes with a well-developed gossip mill.

I am sure that the Respondent is aware that employees like Mr Gorman have their position with the Respondent inextricably linked to their position in the community. There are positive aspects of this such as the fact that public would attend Mr Gorman’s home to conduct IFI business and were assisted by not just Mr Gorman and but also by his family. There are more challenging aspects associated with this overlap, such as prosecuting people for offences while continuing to live alongside them in a rural area.

When it comes to IFI equipment I am satisfied that it was not unusual for staff to store equipment on their personal properties at times. This would make sense in the context of the rural areas in which the IFI operates. The Complainant gave convincing evidence on how the situation with the tractor came about, that it had been looked after by an employee who had retired and that there was no place for it to be stored at Cong hatchery. The Complainant was able to keep it in a safe place and maintain it. The Respondent did not contradict this evidence, nor did it contradict his evidence of the IFI using the Complainant’s personal property for boat launches free of charge.

The Respondent is of course allowed to change any way any of its property is managed and it is not unusual for standards in public bodies to alter over time. However, these changes do not need to involve retrospectively blaming employees who have been playing by the rules as they understood them. If the Respondent felt that at any stage the lines between personal property and company policy were too blurred they could of course reset that boundary.

Having regard to the above context, the Complainant’s sudden suspension on the 1st of February 2022 was obviously punitive and unfair. This suspension came on the back of an anonymous letter submitted to the Respondent’s parent Department. That potentially any member of the public could secure the immediate suspension of a member of staff by writing an anonymous letter and without providing any evidence is quite shocking. The CEO considered the letter and engaged with the Complainant’s line manager, a member of the senior management team, who knew that the storage of the tractor on the Complainant’s farm had been approved yet still allowed the suspension to proceed. In the hearing the Respondent presented the failure of the Complainant’s manager to speak up as if it was some sort of regrettable anomaly and not something they needed to explain in the context of these proceedings.

The reason given for the suspension, to ensure a proper investigation, has never been substantiated by the Respondent. I am entirely unsure of what evidence was at risk by the Complainant continuing to carry out his work. The CEO had already looked up the local depot’s fuel records before even notifying the Complainant of the letter and enacting the suspension. Ms Bradley suggested the suspension was for the protection of both the Complainant and the Respondent but I do not see how either party was protected or what was actually at risk.

Most importantly, I believe the Respondent could reasonably foresee the fallout from the suspension. It would become known not just amongst the staff but within the community in which the Complainant lived. I note the anonymous letter writer soon began referring to the Complainant as “sacked” in their subsequent letters. I also note that the Complainant began receiving abuse from members of the public he had previously prosecuted who knew about the suspension.  

In the circumstances I conclude that from the outset of this process the Complainant was not being treated fairly or reasonably by the Respondent. While the facts of this case differ in many respects I note the position Justice Noonan arrived to in Bank of Ireland v Reilly [2015] IEHC 241, that at the time of suspension the Respondent had made a decision to make an example of the Complainant.  

The Role of the CEO

The Respondent’s CEO did not attend the hearing or give evidence. This has left large gaps in the Respondent’s case.

As outlined above I do not have the CEOs account of why he suspended the Complainant. I can see no reason why this step was necessary. I am satisfied from the Complainant’s evidence and the evidence of Ms Campion and Ms Bradley that the impact of the suspension on the Complainant, his family and their standing in the community were likely foreseeable to the CEO. 

From the Respondent’s own investigative report, it is clear that the CEO sought to influence the investigation off the record. He explicitly asked to speak with the investigator privately. The investigator is to be commended for refusing to facilitate this and in recording the request in his report. I do not know whether the CEO’s attempt to influence the disciplinary process surreptitiously was an isolated event or not.

The CEO also took it upon himself to find and review the CCTV footage of the Complainant returning the tractor to the Cong Hatchery. Out of context this action would just appear unusual, but alongside these other issues it does seem like the CEO was targeting the Complainant for some reason.

The Decision to Dismiss the Complainant

The following the conclusion of the investigation report the Complainant was referred to a disciplinary hearing. Ms Bradley gave evidence of the decision to dismiss the Complainant. She had given evidence of her previous involvement in advising the CEO on the suspension of the Complainant. I am usure as to the extent of her role in that decision. When giving evidence she sought to explain the rationale behind the decision to suspend but also suggested she had no part in the decision.  

 She did outline her reasoning in deciding to dismiss the Complainant, in particular for allowing his teenage son to drive the tractor back to Cong hatchery on the evening after he was suspended.

Having regard to all the evidence, I am not satisfied that that decision was arrived fairly or that it fell within the band of reasonableness.

During the disciplinary hearing the Complainant provided evidence as to his mental state on the evening of the 2nd of February and that he regretted allowing his son to drive. This was obviously a serious error but it was also a unique situation. I can see no risk of such an error having happened again or of the Respondent being concerned about the Complainant’s judgement on a day-to-day basis. This mistake was made on the back of the Complainant’s sudden and unfair suspension following an unblemished record of 37 years. While the Complainant could have and should have taken other measures to return the tractor, or simply not returned it if his son driving was the only option, I am satisfied that he believed he had to return the tractor that night. It is not clear whether the Complainant's state of mind at the time was taken into account by Ms Bradley or that he had been instructed to return the tractor immediately. 

I am also unsure as to the Respondent’s position regarding the allegation that the Complainant had misappropriated fuel and what bearing this had on his dismissal. It appears to have been dealt with in the investigation, but it is mentioned in the course of the disciplinary hearing and the Respondent later sought to pursue the Complainant for the cost of fuel post dismissal.

At the time the Complainant was dismissed he had been suspended for approximately 8 months. I am concerned that it may have been easier for the Respondent to dismiss the Complainant rather than seek to reintegrate him into the organisation after so much had transpired.

Having regard to all the circumstances I do not accept that a lesser sanction and the context surrounding the Complainant’s error were seriously considered by the Respondent.

The dismissal was unfair.

Redress

The Complainant is seeking reinstatement. I do not believe that this is an appropriate remedy. The relationship between the parties has functionally ceased and while I do not believe that a fair process would have resulted in the Complainant’s dismissal it could well have resulted in his demotion.

Section 7 of the Unfair Dismissals Act provides that I may make an award based on the financial loss attributable to the dismissal.

The Complainant was paid approximately €77,000 per annum at the date of his dismissal. His notice was paid until mid-December 2023. At the time of hearing, he remained out of work and had an ongoing loss.

Section 7.2 goes on to state that in determining the appropriate award, I must have regard to:

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

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

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

((d) 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 subsection (1) of section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister,

(e) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14, and

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

The Complainant provided a detailed breakdown of his efforts to find another job following his dismissal. At the time of hearing, he had submitted 31 job applications. As the Complainant lives in a rural area some distance from Galway City I am satisfied he has sought to mitigate his loss in the context of the opportunities available to him. 

Taking into account the Complainant’s ongoing loss at the time of hearing and the likelihood that if he finds another job may be at a reduced salary, I would estimate his loss at approximately a year’s salary.

With regard to 7.2.f I am satisfied that the Complainant significantly contributed to his dismissal. He made a serious error which could have justified demotion or unpaid suspension.

Having regard to this I have reduced the award of compensation by 50%.

Organisation of Working Time Act

Section 23 of the Organisation of Working Time Act provides that an employer is required to pay an employee compensation for accrued annual leave on the cessation of their employment.

The Respondent appear to have under paid the Complainant some of his holiday upon cessation but when challenged they sought to rectify the mistake. There is a breach but it appears to be purely technical and in the circumstances I am satisfied that a nil award is warranted.

CA-00053507-001

I find that this complaint is well founded I award the Complainant €38,500.

CA-00055061-001

I find that this complaint is well founded I award the Complainant €0.