Case Number: ADJ-00018226. Workplace Relations Commission.
| Docket Number | ADJ-00018226 |
| Hearing Date | 21 February 2019 |
| Date | 01 May 2019 |
| Year | 2019 |
| Court | Workplace Relations Commission |
| Parties | Civil Servant v Government Department |
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015,following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
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The Complainant commenced his employment with the Respondent on 1st November 2007. He was dismissed on 25th July 2018. The Complainant contends that he was unfairly dismissed. |
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The Respondent submits that the Complainant was dismissed on 25th July 2018. The Respondent submits that the Complainant’s duties included audits. The Respondent submits that the incident giving raise to the dismissal was relatively straight forward and has not been the subject of any particular contest or controversy as to its facts. The Civil Service Disciplinary Appeals Board, which confirmed the first instance decision to dismiss, recorded the details as follows: “The Special Compliance Branch staff of [the Respondent] responded to an advertisement on Facebook offering cigarettes for sale. On 5th January 2018, [the Complainant] delivered the cigarettes and the [Respondent’s] staff seized 400 cigarettes from him without an Irish Tax Stamp affixed.” The reasons for dismissal (which would be later upheld by the Appeals Board) were stated by the first instance decision maker, Mr P, as follows: “I have formed the opinion that the actions as set out above constitute gross misconduct as defined by the Disciplinary Code, that these actions breach [the Respondent’s] Code of Ethics, compromise his standing within [the Respondent] and potentially imperils [the Respondent’s] good reputation.” The Respondent argues that the Complainant will say that the advertisement for the contraband cigarettes (cigarettes on which tax had not been paid) was posted on Facebook by his girlfriend and he merely assisted her. However, the Respondent submits that it is accepted by the Complainant that, a. It was the Complainant who purchased and brought the cigarettes from Poland. b. It was the Complainant, who knowingly made the delivery of the contraband cigarettes on foot of interest shown in the Facebook advertisement, and c. The Complainant was directly involved in selling the contraband cigarettes for cash.
What that means is that the Complainant involved himself in the sale of contraband cigarettes contrary to the Finance Acts and the Respondent’s rules which are the specific field of legislation and rules that he was employed to safeguard. The Respondent outlined in more detail its remit. The Respondent submits that, as Mr P stated to the Appeals Board in the course of the appeal the Respondent’s good reputation plays a key function in supporting voluntary compliance by its customers. The Respondent’s staff rely upon this moral authority when confronting non-compliance. The Respondent submits that the Complainant’s role was part of an Audit team in which it was his job to confront non-compliance with the Respondent’s rules. Even if these were not specific to his role, the Complainant was subject to the following duties pursuant to the Civil Service Code of Standards and Behaviour and the Respondent’s Code of Ethics. The Code of Ethics provides that the Respondent’s staff must act with “integrity and honesty and within the law”. It provides that they must “not behave in a manner which may bring [the Respondent] into disrepute”. The Code is clear that as the Respondent’s official “we enjoy a reputation for honesty, integrity and maintaining the highest possible standards of professional conduct”. There is also clear provision to avoid conflicts of interest (see later statement from the Complainant that he felt pressure from his girlfriend to become involved in the sale of the contraband cigarettes). The Respondent submits that serious misconduct, as defined in the Disciplinary Code, is a basis for dismissal and includes engaging in prohibited conduct, disrespecting the law, bringing the Respondent into disrepute and breach of trust and confidence. The Respondent argues that a great deal of detailed and thorough consideration and reasoning has been applied to the dismissal of the Complainant. The Respondent submits that the Complainant has criticised the Respondent and the process leading to his dismissal on a number of grounds, but these appear to consist of essentially three basic complaints: a. A matter of procedural fairness b. An argument on proportionality of sanction; and c. A complaint concerning a parallel criminal process. Procedural fairness The Respondent submits that the Complainant’s arguments about procedural fairness are classic example of “form over substance”. The Complainant makes much of what he describes as flawed procedure, but he does not identify a single material issue by which he was actually prejudiced by the procedure applied. Procedural arguments are not an end in themselves (Kelleher v An Post [2013] IEHC328 which is cited and quoted from below). This is without prejudice to the Respondent’s position that the procedure applied was full and fair. Any flaw, perceived, technical or otherwise, would in any event have been cured by the appeal process (Rowland v An Post [2017] IESC 20). The Complainant must therefore demonstrate that the appeal process was flawed. Given that he was specifically asked by the Appeals Board ‘what were the biggest errors in the handling of this case, and could he flesh these out?’, he had his opportunity to make a case in substance rather than form. His answer, however, to this question was simply to say procedures were not followed and then immediately talk about the severity of the sanction. In reality, his case is that alone: his complaint is that the sanction was too severe. The Respondent submits that the Complainant’s complaint form is a carefully crafted narrative of the Complainant’s case, as were his opening statement to the Appeals Board and his appeal grounds submitted in the course of the disciplinary process. And yet at no point did the Complainant specify how the outcome of this case could have been different if X, Y and Z had occurred. He refers, enigmatically to ‘undue haste to judgement’ but he does not point to any aspect of the process which, if done otherwise, would have made any difference. The Respondent submits that arguments concerning flawed procedures should never be an end in themselves but must be a means to an end. Logically the ‘end’ is that the flaw in procedure resulted in specific prejudice. In that regard, the Respondent relies on Kelleher v An Post. In the present case, despite being given ample opportunity to do so, the Complainant did not identify any prejudice. Two-stage process requirement: Circulars must be read purposively The Respondent submits that the Complainant argued that he was entitled to a separate and distinct investigation and disciplinary process. Whilst he points to a rule of the procedure that might be read as a requirement in this regard, he does not say what prejudice arose from a unitary process in his case. There was no factual dispute in the case. The Appeals Board listened to this argument and said that "[T]he Board noted that a two-stage investigation was not necessary in this case given the facts were not disputed. [The Complainant] was given a full opportunity to be heard on the context of the seizure, his reasons for his involvement and to point to any explanatory and mitigating factors. [The Complainant] was afforded a reasonable opportunity to answer the allegations arising about him." The Complainant seeks to read the Civil Service Disciplinary Code like a statute wherein it must be applied strictly, in mandatory terms and without discretion. This is not supported by legal authority. To be clear, the Respondent argues that the Disciplinary Code does not require a strict separation between investigation and discipline. Any such separation (essentially to observe the nemo iudex principle) would only arise where there was some danger that the investigator was tainted by his or her involvement in the investigation. That is the purpose of the process and indeed that is the purpose of fair procedures. In circumstances where the Code should be interpreted purposively (Joyce -v- The Board of Management of Colaiste lognaid), the sensible reading of the rule in the context of this case is that where facts are not in dispute and the facts are not complex, no separate investigation is required. The Disciplinary Code provides "In cases where the facts are not complex and where the suspected misconduct is not serious, the fact-finding exercise may take place as part of the disciplinary... |
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