Complainant

Respondent

Parties

Declan  Cosgrave

The Department of Foreign Affairs

Representatives

Fórsa

Dylan West BL instructed by the Chief State Solicitor's Office

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 8 of the Unfair Dismissals Act 1977

CA-00060805-001

03/01/2024

The respondent terminated the complainant’s employment on 13 September 2023 on grounds of misconduct.

The claim submitted to the WRC on 3 January 2024 was of unfair dismissal; that the penalty applied to the complainant was different to others involved in the same offence, there was a lack of objectivity in the internal appeals process and disregard for the recommendation of the Civil Service Disciplinary Appeals Board.

The respondent disputed the claim of unfair dismissal.

Summary of submissions

The complainant commenced employment with the respondent on 1 May 2007.  He was working as Deputy Head Service Officer in the Passport Office at all times material to these proceedings. 

There were substantial grounds, namely serious misconduct, justifying the complainant’s dismissal on 13 September 2023.

The complainant was afforded the benefit of fair procedures throughout the various stages of the respondent’s disciplinary process, which process was conducted in accordance with the Civil Service Disciplinary Code (the “Disciplinary Code”).

By letter dated 8 April 2022, the complainant was informed by the respondent’s HR Director of the commencement of an investigation process under the Disciplinary Code and of the complainant’s suspension with pay.   The investigation was of an allegation of wilful and deliberate unauthorised access by the complainant of the Automated Passport System database (the “APS”), in contravention of the respondent’s ICT policies.  Terms of reference for the investigation were established. The investigator submitted a written report of their findings to the HR Director, which concluded that the complainant had accessed the APS in contravention of the policies and that this amounted to wilful and deliberate unauthorised access.

By letter dated 9 January 2023, the HR Director requested the complainant attend a disciplinary meeting.   The meeting ultimately took place on 3 February 2023 and was chaired by the HR Director. 

The HR Director produced his report dated 10 March 2023 which set out his decision, and the reasons for same, that there had been serious misconduct resulting in a breakdown of the relationship of trust and confidence between the complainant and the respondent.  The report concluded with a recommendation that the complainant be dismissed under paragraph 3.6.8 of the Disciplinary Code and informed of the complainant’s right to appeal the recommendation.

The complainant appealed the recommendation and the appeal hearing before the Disciplinary Appeals Board (the “Appeals Board”) took place on 1 June 2023.   The recommendation of the Appeals Board issued on 27 July 2023 and upheld the finding of serious misconduct but recommended the complainant’s demotion to the position of Service Officer based on an absence of evidence of nefarious activity or use of personal data in relation to the APS access.

The complainant had maintained throughout the investigation and disciplinary processes that he had never accessed APS and that others had accessed APS while the complainant was logged in / had not locked his desktop, which was a shared desktop open to all service staff in the Passport Office.

The Secretary General was responsible under the Disciplinary Code for considering the HR Director’s report together with the recommendations of the Appeals Board and making a final decision on disciplinary action.  The complainant attended a meeting with the Secretary General on 7 September 2023, which meeting was to afford the complainant an opportunity to provide any further information before a decision was taken by the Secretary General. 

By letter dated 13 September 2023, the Secretary General informed the complainant of his decision to terminate the complainant’s employment with immediate effect. 

The overarching test in cases under the Unfair Dismissals Act 1977 is whether dismissal was a reasonable response.  In this case, the conclusion that the complainant accessed APS was a genuine belief based on reasonable grounds.  The respondent was entitled to conclude on the evidence before it that the complainant’s explanations were not credible.  The complainant’s position remained the same throughout the disciplinary process.  At all stages the relevant personnel dealing with the matter did not believe the complainant on the evidence before them. 

The power to dismiss a civil servant is reserved to the appropriate authority under section 5 of the Civil Service Regulation Act 1956, as amended. The appropriate authority cannot delegate this statutory function to a third party.  It is therefore untenable to maintain in proceedings before the WRC that it was wrong for the Secretary General to take the decision to dismiss, where the Secretary General was the appropriate authority in relation to the complainant.   The case of Cassidy v Shannon Castle and Heritage Limited [1999] IEHC 245 was referred to and a decision of the WRC in An Executive Officer v A Department of State (ADJ-00024800) distinguished.

The submission that the complainant was treated inequitably vis-à-vis others involved was disputed. 

It was objectively reasonable for the Secretary General, having considered the relevant manager’s report, the Appeals Board’s recommendations and the complainant’s representations, to take the decision to dismiss the complainant in the circumstances.

Various cases in support of the band of reasonable responses test and fair procedures were cited.    

Summary of Mr Barry Mulligan’s oral evidence

This witness was HR Director at the time material to this claim.

By letter dated 8 April 2022, the witness informed the complainant of his decision to suspend the complainant with pay pending an investigation under the Disciplinary Code of a possible serious breach of conduct relating to unauthorised access of the APS.

The investigation was initiated further to the discovery of an unauthorised computer at one of the respondent’s offices, the associated potential security risk, and further interrogations which brought activity on a desktop computer in the CCTV room into focus.  A report demonstrated the complainant’s username and another accessing the APS login page from the CCTV room desktop over a six-month period.   The complainant did not have authorised access to the APS. 

The APS is a highly security sensitive database containing personal data provided as part of the passport application process.  The witness explained the reputational significance of the Irish passport and associated visa free access benefits. 

The witness reviewed the investigation report and decided to call a disciplinary meeting. A sanction did not feature as part of the investigator’s report. 

The disciplinary meeting took place on 3 February 2023.  The witness took account of the complainant’s representative’s observations and views of the investigation outcome, communicated by email on 2 February 2023.  The complainant did not object in advance of the meeting to the investigator’s attendance at that meeting along with the witness.   The investigator attended the meeting to assist with the technical aspects of the investigation report.  The complainant’s position was the same at the disciplinary meeting as that at the investigation meeting; the complainant did not accept that he had logged in to APS. 

The witness was responsible for providing the relevant manager’s report under the Disciplinary Code to the Secretary General and duly prepared same and forwarded same to the Secretary General.  

The objective of the report was to give the Secretary General as much information as possible to enable him to make a decision on any disciplinary sanction.  In drafting his report, the witness had before him minutes of all interviews, the full investigation report and appendices.  The witness considered the minutes of the investigation meeting with the complainant on 28 July 2022.  The complainant acknowledged that he did not have authorised access to APS and maintained that someone else accessed APS while the complainant was logged on at his device. The witness considered the complainant’s responses to activity on APS on 11 March 2022 under another person’s user credentials.  The witness also took into account a statement of a clerical officer.  The witness did not have faith in the complainant’s explanation as to why other clerical officers would be using the log-in details of two identified clerical officers.  The witness determined serious misconduct on the part of the complainant and recommended dismissal.  The witness had considered alternative sanctions to dismissal, but trust and confidence was an issue having regard to the nature of a role in security.

Regarding the recommendation of the Appeals Board that the complainant be demoted to Service Officer, transferred and relocated to a position with limited access to computers, the witness expressed the view that this was near impossible.  The witness was not at the meeting of 7 September 2023 between the Secretary General and the complainant. 

An activity report was furnished to the Secretary General and the complainant in advance of the 7 September meeting so that comprehensive information as to what exactly had happened was before the Secretary General.

Under cross-examination, it was put to the witness that the clerical officer’s statement he had had regard to was unreliable by reason of its inaccurate account of who telephoned who on 8 April 2022.   The witness was asked about the final written warning sanction given to another employee following on from the respondent’s investigation and explained how he considered the scale and standard of the two cases to differ.  The witness explained the investigator’s role at the disciplinary meeting and how he was present for his technical expertise and to provide technical evidence.  Had he not been there to assist, there could have been delays in the process if questions had been asked about the technical information provided.  In relation to the sanction of demotion and/or transfer for the complainant, the witness’ view was that it was unreasonable having regard to the trust involved in a security role, and impracticable to have a Service Officer not having access to a computer.  Transfer to another location was not the issue; it was the trust and confidence inherent in the security role. 

Summary of Mr Joe Hackett’s oral evidence

The witness is Secretary General of the respondent with authority to impose the sanction of dismissal under the Disciplinary Code. The witness was advised of the decision to suspend the complainant in April 2022 but was not involved in the investigative and disciplinary processes. 

The complainant was invited to attend a meeting with the witness on 7 September 2023.  Two reports were provided to the witness and reviewed by him in advance of the meeting.  The tabular report setting out access to APS was not a central consideration for the witness but was developed in response to discussion at the Appeals Board hearing as to why the complainant may have accessed the APS.    ICT policies were also included in the documentation before the witness, and he reviewed all documentation before him in full in advance of the meeting.  The witness took his decision-making function very seriously.

The witness had not made a final determination on the case before the meeting of 7 September.

The witness confirmed the minutes of the meeting, which reflect the position maintained by the complainant that he had never accessed APS.

The witness considered it neither reasonable nor practicable to implement the Appeals Board recommendation of demotion and transfer of the complainant.  The recommendation of demotion of the complainant to Service Officer was not in fact a demotion because the complainant’s role at the material time was that of Service Officer albeit with a deputy head allowance.  A demotion of the complainant would have been to Service Attendant.  Whatever role the complainant was in, the witness considered it necessary for him to have trust and confidence in the complainant.  The witness in his role as Secretary General of the respondent has a responsibility to the public in and around ensuring trust in the provision of personal data.  The witness did not consider it reasonable for someone to serve the public in circumstances where that trust was breached.  

Due to the sustained nature of the access and credibility issues on the complainant’s account, the witness did not accept the complainant’s position that he had never accessed APS and that others had logged into APS while the complainant had been logged in on the shared desktop.

The witness was conscious of the gravity of departing from the Appeals Board’s recommendation, the complainant’s service since 2007 and the significance personally for the complainant in terms of livelihood.  It was a very serious decision for the witness and one in which the investigator had no influence.

Under cross-examination, the witness explained why the tabular report of accessed applications had been produced following the Appeals Board hearing.  It was additional information to that provided at the hearing and was prepared so that the complainant could have an opportunity to respond to same.  The witness maintained that notwithstanding the Appeals Board’s recommendation, his responsibility was to work within the disciplinary process, and he still had an obligation to assess the Board’s recommendation under the Disciplinary Code.  It was put to the witness that it was rare and extreme for a Secretary General to depart from a recommendation of the Appeals Board.  The witness confirmed that, in his current role, he had followed Appeals Board recommendations in 3 out of 4 cases.   The witness agreed that he considered dismissal as a last resort.  In terms of what consideration had been given to equitable treatment by reference to sanctions imposed on others arising from the investigation and disciplinary process, the witness had a decision to make, and he had choices.  The witness could have decided to transfer the complainant, but he had reservations about the message this would send to the public and to staff in the Passport Office given the nature of the offence and the potential implications for the public’s personal data.  He was aware of the final written warning and transfer sanction in another case, but he had not been the decision-maker in that case.   In this case, the witness felt strongly about the serious breaches of responsibility by the complainant, the public interest, and that the complainant could not be trusted in any role. 

Summary of submissions

The complainant was employed as a Service Officer from May 2007 until September 2023.

Following an investigation into alleged security breaches of the passport ICT system during 2022, a decision to dismiss the complainant was taken by the respondent under the Disciplinary Code.  The decision to dismiss was overturned by the Appeals Board on appeal in July 2023.  The Board’s recommendation was overturned by the respondent’s Secretary General in September 2023 when he informed the complainant of his dismissal with immediate effect.

Notwithstanding an objection to the role of the investigator in the disciplinary process, the complainant accepted in full the findings of the Appeals Board, including its determination of serious misconduct on the balance of probabilities.  The Board is a long established and trusted body within the construct of the disciplinary process in the civil service and it is rare that its decisions are overturned.   The Appeals Board considered all the facts, made findings and recommended that the respondent’s decision to dismiss is not upheld, and demotion and/or transfer of the complainant having regard to all the circumstances.  The Appeals Board’s recommendation could have been accepted and complied with, but the Secretary General was not willing to do so.  The Secretary General’s view that demotion and/or transfer was neither reasonable nor practicable was biased and selective and his reasoning for dismissal is contradictory and indicative of a clear and pre-determined bias.

It was submitted that the complainant was denied nature justice; it could not and did not occur given the role and involvement of the Secretary General in the decision to dismiss.  The decision in An Executive Officer v A Department of State (ADJ-00024800) was relied upon in this regard.  The Secretary General of a Department is not the appropriate person to execute decisions on disciplinary matters within that Department.

The content of the Disciplinary Code and Civil Service Regulation Act 1956 was not challenged however it was submitted that the respondent is not the employer, rather the employer is the civil service and delegation down the line means it should go to the Secretary General of another Department.  In order to remove any question of bias and in the interests of natural justice, the decision on the disciplinary outcome should have gone to someone other than the Secretary General of the respondent.

Equitable standards and outcome were not applied to the complainant, and this was unfair.  Irrespective of the power to dismiss, the reasonableness of the decision must be considered.  The complainant had 15 years’ unblemished service.  There were alternative options to dismissal which the respondent simply did not want to facilitate. 

At the outset of the hearing, it was confirmed that the redress sought for unfair dismissal was that of compensation.  The complainant was out of work for 6 months following his dismissal.  His current role carries significantly less earnings.

Summary of the complainant’s oral evidence

The complainant had never seen or signed acceptance of the respondent’s ICT security policies.  The complainant only saw the policy documents after his dismissal.  The complainant never deliberately or knowingly breached the secure access area in his workplace.

Under cross-examination, the complainant said that he had made a mistake in comparing with a work colleague the letter he had received informing him of his suspension and the respondent’s investigation.  When he saw the line of the letter stating that he should not contact anyone in the respondent in connection with the alleged offence, he told the work colleague he was going home, and he never spoke with him after that.  The complainant confirmed he had read the HR Director’s report to the Secretary General.    The complainant had understood the security sensitive nature of APS but referred to the Appeals Board’s recommendation of a different sanction where there was no evidence to indicate any nefarious activity or use of personal data in relation to the APS access.   The complainant was represented at his meeting with the Secretary General and was aware that dismissal was a potential outcome.  The complainant was given an opportunity to present his side of the case again in the meeting with the Secretary General.  The complainant did not know how the investigator, HR Director and Secretary General concluded that the complainant’s version of events was not truthful.  The report before the Secretary General showing access activity would have put the complainant in the clear.  The complainant did not use a clerical officer’s details to log-in to APS. 

In relation to mitigation efforts, the complainant took up employment as a bus driver on 7 April 2024.  He is currently working part-time in that role.  The complainant was on job seekers social welfare benefit from 13 September 2023 to 7 April 2024.  Between September and December 2023, he applied locally for a driver role and commenced the driving course in December 2023.

In re-examination, the complainant outlined an unblemished record in employment from 2007 to 2023 and questioned why he would risk his employment to look up a stranger’s application. 

The complainant was the subject of an investigation and disciplinary process under the Civil Service Disciplinary Code (the “Disciplinary Code”) in relation to an allegation of wilful and deliberate unauthorised access by him of the Automated Passport System database (the “APS”) in contravention of the respondent’s ICT policies. 

It is worth setting out the sequence and nature of the outcomes of the investigation and disciplinary processes under the Disciplinary Code because of how the outcomes were characterised at the hearing and in documentation before me. 

The complainant was notified of his suspension with pay and of the investigation of the allegation against him by letter dated 8 April 2022.

The investigation concluded with the investigator’s report dated 30 November 2022 which included findings that on particular dates the complainant accessed the APS in contravention of the respondent’s ICT policies and that this amounted to wilful and deliberate unauthorised access in contravention of the previously mentioned policies.

The respondent’s HR Director requested the complainant attend a disciplinary meeting and this meeting took place on 3 February 2023.   The outcome of the disciplinary meeting was a report by the HR Director to the Secretary General, dated 10 March 2023, in which the HR Director set out his assessment of the complainant’s conduct, determination that serious misconduct had occurred and recommendation that the complainant be dismissed. 

The complainant exercised his right to appeal the recommendation made in the HR Director’s report and, in accordance with the Disciplinary Code, the complainant’s appeal was heard by the Disciplinary Appeals Board (the “Appeals Board”) on 1 June 2023. The outcome of the appeal process was partially successful; the Appeals Board was satisfied of serious misconduct on the part of the complainant but, rather than dismissal, it recommended the complainant’s demotion to Service Officer, transfer and relocation of the complainant.

The Secretary General made the decision to dismiss the complainant, and the complainant was informed of this decision by letter dated 13 September 2023.

There is a difference between a recommendation and a decision, and this distinction applies in relation to the outcomes at the various stages under the Disciplinary Code.  There was no decision made on disciplinary sanction in this case until the Secretary General made the decision to dismiss the complainant.

I also wish to clarify that the allegation and finding of serious misconduct was in respect of wilful and deliberate unauthorised access by the complainant to the APS in contravention of the respondent’s ICT policies.  The allegation and finding of serious misconduct was not in relation to unlawful activity or use of personal data.  A lack of evidence of nefarious activity or use of personal data in relation to the APS was addressed by the Appeals Board in the context of its recommendation on disciplinary sanction.  A tabular report prepared by the respondent and provided to the complainant in advance of his meeting with the Secretary General set out the activity following interaction with the APS on material dates.  I do not accept the complainant’s submission that this report would have put him in the clear.  The relevance of the report was to the decision on disciplinary action/sanction.  At the hearing before the WRC, the complainant accepted in full the findings and recommendations of the Appeals Board; the Appeals Board found that there had been serious misconduct on the part of the complainant in breaching security and accessing APS. 

The Legal Framework

Section 6(1) of the Unfair Dismissals Act 1977, as amended, (the “1977 Act”) provides as follows:-

“Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal, unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.”

Section 6(4)(b) of the 1977 Act deems for the purposes of that Act a dismissal resulting wholly or mainly from the conduct of the employee, not to be an unfair dismissal. 

In accordance with section 6(6) of the 1977 Act, it is for the employer to show that the dismissal resulted wholly or mainly from the conduct of the employee or that there were other substantial grounds justifying the dismissal.

Section 6(7) of the 1977 Act provides that in determining whether a dismissal is unfair, 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, and

(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 …”

The combined effect of the above-mentioned provisions is that the onus is on the employer to establish a fair dismissal.  In adjudicating an unfair dismissal claim, I may have regard to the reasonableness of the employer’s conduct in relation to the dismissal.  It is not however my role to re-investigate the matters that gave rise to an employer’s investigation and disciplinary processes, or to substitute my views for those of an employer.  I must apply a standard of reasonableness to the decision to dismiss based on the facts of the case.

The Civil Service Regulation Act 1956, as amended, (the “1956 Act”) is also relevant based on the submission that the complainant was denied natural justice in and around the respondent’s Secretary General making the decision to dismiss him. 

Section 5 of the 1956 Act provides, in relevant part, the following:-

“(1) Every established civil servant shall hold office at the will and pleasure of the Government.

 (2) Where the Government so authorises, the powers and functions of the Government under subsection (1) of this section may as respects an established civil servant be exercised by the Minister of the Government by whom the power of appointing a successor to that civil servant would for the time being be exercisable.

 (3) Where the Government so authorises, the powers and functions of the Government under subsection (1) may, as respects an established civil servant in relation to whom a person other than a Minister of the Government is the appropriate authority, be exercised on behalf of the Government by such appropriate authority.

…”

The “appropriate authority” referred to in section 5(3) above is defined in section 2 of the 1956 Act, and of relevance to this case is subsection (1)(c) which provides:-

“(c) in relation to a civil servant below the grade or rank of Principal or an equivalent grade, the Secretary General of the Department or the Head of the Scheduled Office in which the civil servant is serving.”

Matters in issue

It was submitted that the complainant accepted the findings and recommendations of the Appeals Board, notwithstanding an objection to the investigator’s role and involvement in the disciplinary process.

The relevant conclusions and recommendations of the Appeals Board were that the conduct in question, namely a security breach on the part of the complainant, amounted to serious misconduct, that the decision to dismiss not be upheld based on an absence of evidence indicating nefarious activity or use of personal data from the APS access, and that the complainant be demoted to Service Officer and transferred to a position with limited access to computers.

There was no issue raised at the hearing before me about the respondent’s adherence, in general, to the Disciplinary Code.  However, I consider the submission regarding the complainant’s acceptance of the Appeals Board’s findings and recommendations to have been qualified in nature. This view is supported by a line of questioning pursued both in direct and in cross-examination of Mr Mulligan in relation to the investigator’s role at the disciplinary meeting.   I further consider it appropriate to address the specific issue of the investigator’s involvement at the disciplinary hearing where it was expressed in the written submissions on behalf of the complainant that the union accepted that the Appeals Board considered this issue as part of the complainant’s appeal, and where there is no specific finding in the report of the Appeals Board on this issue.  

The Disciplinary Code is that contained under circular 19/2016 and sets out the arrangements for dealing with disciplinary matters in the civil service and the procedure that will be initiated where there is a concern about a civil servant’s conduct, work performance and/or attendance.   The procedure under the Disciplinary Code is of a stepped nature and the general principles of natural justice and fair procedures in disciplinary matters are reflected in the Code as applying in both the investigation and disciplinary stages.  The Disciplinary Code provides that the disciplinary procedure is commenced, and the nature of any investigation determined, by the relevant manager. The relevant manager in the present case was Mr Mulligan, the respondent’s HR Director.   The HR Director informed the complainant of his suspension with pay and the appointment of an investigator to carry out the investigation.  The complainant was also informed of the terms of reference for completion of the investigation.  Under the terms of reference, and in accordance with the Disciplinary Code, on completion of the investigation, the investigator submitted a written report to Mr Mulligan.  The conclusion of the investigator was that the complainant accessed APS in contravention of the relevant ICT policies.  The HR Director requested the complainant attend a disciplinary meeting, which meeting was held on 3 February 2023.  It is in the context of this disciplinary meeting that the objection to the investigator’s role and involvement relates.  Observations on the draft minutes of the meeting, provided to the respondent on 20 February 2023, set out the complainant’s concern that the investigator appeared as a member of the official disciplinary team at the 3 February meeting.  It was submitted that this amounted to abuse of the separation of the functions of investigation and judgment.  

The issue raised relates to the principle of nemo iudex in causa sua and whether the complainant’s right to a fair and impartial determination of matters at the disciplinary stage was prejudiced.

What is required in the application of natural justice may differ from case to case.  As per Barrington J in Mooney v An Post [1998] ELR 238:-

“The terms natural and constitutional justice are broad terms and what the justice of a particular case will require will vary with the circumstances of the case. Indeed two of the best known precepts of natural and constitutional justice may not be applicable at all in certain cases. As the learned trial judge has pointed out the principle of nemo iudex in sua causa seldom applies in relation to a contract of employment where the employer judges the issue and is an interested party. Likewise it is difficult to apply to a contract of employment the principle of audi alteram partem which implies the existence of an independent judge who listens first to one side and then to the other.”

In the present case, the procedures of the Disciplinary Code governed the termination of the complainant’s employment.  The principles of natural and constitutional justice, including the entitlement of an employee to be informed of the allegation against them, to be given relevant documentation and an opportunity to respond, are incorporated in the various stages under the Code and reflect an employee’s right to natural justice and fair procedures in disciplinary matters.  

The application of audi alteram ad partem in relation to this part of the disciplinary process required the HR Director to consider the investigation report and findings, for the investigation report to be before any disciplinary meeting and the complainant afforded the opportunity to respond to same.  The application of nemo iudex in causa sua meant that the complainant was entitled to a fair and impartial determination by the HR Director on the outcome of the disciplinary meeting. 

I have very carefully considered the evidence before me, including the minutes of the meeting of 3 February 2023, the Disciplinary Code and terms of reference for the investigation.  

The documentary and oral evidence is of the HR Director having considered the investigation report and convening a disciplinary meeting further to same.  The investigation report in full was provided to the complainant in advance of the disciplinary meeting and the complainant had an opportunity to provide a written response in advance of the meeting, which he did in fact do, and to respond to the report at the meeting.  The complainant was represented by a union official at the meeting.  The complainant’s direct evidence at the WRC hearing that he only saw the respondent’s ICT policies after his dismissal, is untenable based on the documentary evidence before me.

It was not contended by the complainant that the investigator determined the disciplinary recommendation rather the complainant’s objection was to the investigator’s pro-active role in the disciplinary meeting and that this was indicative of bias.  In my view, there is no issue per se with an investigator, whose report is before a disciplinary meeting, attending the disciplinary meeting.  This affords both the employee and person chairing the meeting an opportunity to raise any issues and to have them addressed by the investigator.   The Disciplinary Code expressly provides for a civil servant to be given the opportunity at the disciplinary meeting to respond to the investigation report.  It is clear from the minutes of the meeting that the investigator played an active role in the disciplinary hearing.  On certain interjections, this could have been perceived as the investigator taking on a meeting lead or chair role.  However, on balance, I can draw a distinction on the minutes between the HR Director’s role and the investigator’s role at the meeting.  The investigator’s input concerned putting the detail of the investigation report to the complainant whereas the HR Director put matters of concerns on the part of the respondent to the complainant.  Clarification on the respective role and function of the investigator and HR Director at the disciplinary meeting may have addressed any concerns on the part of the complainant regarding the investigator’s role. 

The submission that the investigator’s role at the disciplinary meeting was instructive of the respondent’s ambition to terminate the complainant’s employment and that it rendered the disciplinary process unfair and impartial was not made out on the evidence and, in my view, was speculative.

The undisputed evidence of the HR Director was that he prepared the relevant manager’s report himself and that he did not liaise with the investigator in relation to the content of the relevant manager’s report.   The evidence before me was of the HR Director chairing the disciplinary meeting and making his determination on the complainant’s conduct and recommendation on disciplinary outcome.  I am satisfied that this function was properly exercised by the HR Director. 

I am satisfied that complainant was afforded fair procedures at each of the stages of the investigation and disciplinary processes and that the HR Director’s function in relation to the outcome of the disciplinary meeting was not tainted by the investigator’s involvement at the disciplinary meeting.  Relevant to this finding on the fairness and reasonableness of the disciplinary process is the fact that the disciplinary meeting outcome included a recommendation of the HR Director on disciplinary sanction that was neither final, nor binding, on the ultimate decision-maker, and that a fully independent Appeals Board heard and decided an appeal of the HR Director’s recommendation.  The investigator was not involved in a recommendation or decision-making capacity in the relevant manager’s recommendation, nor the Appeals Board’s recommendation, nor the Secretary General’s decision on disciplinary sanction.  The role and involvement of the investigator was confined to the investigation and presentation of the evidence from the investigation in subsequent disciplinary stages.   

For completeness, I am satisfied that the respondent followed the relevant disciplinary procedure and that its conduct leading up to the decision to dismiss was reasonable. 

Decision to dismiss

The main focus at the hearing before me was on natural justice in relation to the Secretary General’s decision to dismiss and the proportionality of the dismissal sanction.

Under the Disciplinary Code, it is for the appropriate authority to make the final decision for the type of disciplinary sanction with which I am concerned, following consideration of the relevant manager’s report and any recommendation of the Appeals Board. 

The Disciplinary Code provides at paragraph 4.6:-

“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.”

I am satisfied that under the 1956 Act the Secretary General of the respondent department was the “appropriate authority” in relation to the complainant, who was a civil servant below the grade of Principal Officer or an equivalent grade.  I am further satisfied that the power to dismiss the complainant from his role in the respondent department was vested in the respondent’s Secretary General under the 1956 Act.  I have considered the decision in An Executive Officer v A Department of State (ADJ-00024800), however, in my view, had a third party or Secretary General of another department exercised the power, or taken the decision to dismiss the complainant, this would have been in breach of the 1956 Act.  The submission that the civil service, as opposed to the respondent department, was the complainant’s employer and that delegation of the decision ought to have gone to a Secretary General of another department is, in my view, untenable based on the 1956 Act and inconsistent having regard to the entity named by the complainant as the respondent employer to the claim of unfair dismissal.  

I do not have jurisdiction to adjudicate on or resolve any natural justice objection in relation to the provisions of the 1956 Act.  However, by way of general observation on the submissions made in relation to natural justice and the decision-maker, it is worth recalling the observations of Mr Justice Barrington in Mooney on how an employer is invariably an interested party in relation to a contract of employment.  I am not satisfied on the facts of this case of any circumstances that impinged on the Secretary General’s capacity for objective and fair decision making on the disciplinary matter.  The decision of the High Court in Cassidy v Shannon Castle Banquets and Heritage [2000] ELR 248 is not authority for natural justice requiring that the most senior officer in an organisation not be involved in a decision to dismiss.  The High Court in Cassidy expressed its reservations about a clear-cut application of nemo iudex in sua causa in the employment context but concluded, based on the particular facts of that case, that someone other than the general manager should have been involved for objective investigation and adjudication.  It is my view that a senior officer or general manager’s involvement in a decision to dismiss does not, in and of itself, offend against natural justice.  There may be unusual or particular circumstances such that a senior officer or general manager should not be involved in a disciplinary process or decision to dismiss, as per Cassidy, but this is not such a case.  

Turning to whether the decision to dismiss was a reasonable response, the correct approach to the question is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned, as per the High Court in Bank of Ireland v Reilly [2015] 26 ELR 229.

Following a disciplinary meeting with the complainant, the HR Director determined, based on the findings of the investigation report and inability of the complainant to provide reasonable explanations for the matters of concern, that serious misconduct had occurred and recommended the complainant’s dismissal.   It is clear from the HR Director’s oral evidence and his written report to the Secretary General that the HR Director considered the nature and seriousness of the misconduct, including its contribution to a control breakdown and breach of a secure system and its protocols, the highly security sensitive nature of the APS, the complainant’s explanations, and a breakdown in trust and confidence.  The HR Director’s report also addressed alternative sanctions to dismissal and why he recommended the complainant’s dismissal.

The complainant’s appeal of the HR Director’s report to the Appeals Board was partially successful in that the appeal outcome was to uphold a finding of serious misconduct within the meaning of the Disciplinary Code and to recommend different disciplinary action. 

Under the Disciplinary Code, the Secretary General, before making a decision on certain disciplinary sanctions, should consider the relevant manager’s report and any recommendations of the Appeals Board.  As previously set out, the Secretary General was not obliged to follow the recommendations; he had a decision to make.

The complainant was requested to attend a meeting with the Secretary General on 7 September 2023 and afforded an opportunity to make any written submission in advance and to put forward any additional information at the meeting.  The complainant maintained at that meeting that he had never accessed the APS.

The Secretary General’s decision, communicated to the complainant by letter dated 13 September 2023, was to terminate the complainant’s employment with immediate effect.  The Secretary General had considered the recommendations of the HR Director and Appeals Board along with other relevant information, but decided, based on the complainant’s actions, that demotion or transfer were neither reasonable nor practicable and not an option.  The Secretary General explained in evidence how he had taken the disciplinary decision very seriously, taking into account the complainant’s service record and loss of livelihood.  The reasons why the Secretary General considered the demotion and transfer recommendations to be neither reasonable nor practicable to implement related to the nature of the serious misconduct, which had been upheld by the Appeals Board, and the need for the Secretary General to have trust and confidence in the complainant by reason of the respondent’s responsibility and duty to the public and other employees.  The Secretary General also explained how the complainant’s role was that of Service Officer, with a deputy head allowance, therefore any demotion of the complainant would be to the role of Service Attendant, and how a role in security with limited access to computers to minimise the respondent’s exposure to risk was not reasonable or practicable. 

I find that it was reasonable for the respondent to take the decision to dismiss the complainant for the following reasons. 

The respondent’s decision to dismiss was taken because of its belief that there had been serious misconduct on the part of the complainant in relation to access to a highly security sensitive database in contravention of the respondent’s ICT policies.  I am satisfied that there were reasonable grounds to sustain the respondent’s finding of serious misconduct.

I accept the submission that the complainant experienced hardship and stress following on from his dismissal and acknowledge the significance of a loss of permanent, pensionable employment in the circumstances.

There can be no doubt about the seriousness of a breach of ICT security given the nature of the respondent’s operations at the Passport Office and the database in question.  The complainant’s position throughout the disciplinary process was that he had never accessed the relevant database.  The respondent had reasons for not accepting the explanations put forward by the complainant as to how the database may have been accessed while he was logged in, and grounds for finding the complainant’s explanations to lack credibility.  For reasons that are unclear to me, it was not until the hearing before the WRC that the complainant accepted the finding of serious misconduct.  The position maintained by the complainant throughout the disciplinary process exacerbated the trust and confidence concerns the respondent had in the complainant.  I consider the respondent’s decision that demotion and transfer were not reasonable or practicable by reason of the nature of the misconduct and its trust and confidence concerns, and its decision that the complainant be dismissed, to have been a proportionate and reasonable response having regard to all the circumstances.

There was evidence before me of the respondent having taken disciplinary action in relation to other employees further to its interrogations and investigation of activity on the desktop computer.  Whilst I do not have oversight of the specifics of those cases, the evidence was of dismissal of another employee and a final written warning to a third employee.  

Having regard to all the circumstances, I conclude that the conduct of the respondent in relation to the complainant’s dismissal was reasonable and that the decision to dismiss fell within the range of reasonable responses of a reasonable employer to the conduct involved. 

Accordingly, my decision is that the complainant was fairly dismissed.

For the reasons set out above, my decision is that the complainant was fairly dismissed.

Unfair dismissal – Serious Misconduct – Recommendations in internal disciplinary processes – Decision maker – Decision to dismiss - Reasonableness