Complainant

Respondent

Parties

Brian  Meagher

Irish Prison Service Ips

Representatives

Thomas Loomes & Co. Solicitors/ Brian Carroll BL

Jennifer Murray Solicitor Chief State Solicitor’s Office/ Peter Leonard BL

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-00058178-001

09/08/2023

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

CA-00058178-002

09/08/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00058178-006

09/08/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00058178-007

09/08/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00058178-008

09/08/2023

The last date in which the Claimant had clocked in was on 19th May 2022. On the 11th June 2022, according to an attendance log it appears that a colleague of the Claimant had covered a shift for the Claimant. On the 12th of June 2022 there is an entry in the ‘leave on the day’ book. There is a second entry in the same book on 26th June 2022. Both are official, acceptable leave days. The entries are significant. They evidence the fact that the Claimants shifts were being covered on those dates, The Claimant submits that his shifts were being covered on dates between 19th May 2022 and 11th June 2022, 12th June and the 26th of June. A log from IPS shows that the Claimant himself had not clocked in on dates between those mentioned nor does the IPS log show whether anyone else had clocked in to cover the shift. The Claimant submits that he had cover in place.

The Respondent has submitted that the Claimant was absent without leave from 11th June 2022. The Claimant disputes this as he was officially on leave on two occasions after this date. Both of which are officially recorded in the IPS leave on the daybook. The Claimant also submits that he had a pre-arranged authorised shift swop with a colleague on 2nd June 2022. The Claimant had paid a colleague €1800 to manage his shifts in his absence. The Claimant found it difficult to get this colleague and other colleagues to give evidence at hearing.

The Claimant suffered life changing injuries on 6th September 2022. He had intended to return home to Ireland by the end of August 2022 but unfortunately, he was delayed in Ukraine and subsequently injured. The Claimant was initially hospitalised. It is submitted that the letter sent by the IPS to the Claimant on 5th September 2022 could not possibly have been received or read by the Claimant. Subsequent to his hospitalisation, the Claimant was the subject of an RTE Primetime report on 15th September 2022.

Section 15 of the Civil Service Regulation Act 1956 (as amended)  states:

 15.—(1) (a) Where, in the opinion of the appropriate authority, a civil servant has, in relation to his official duties, been guilty of misconduct, irregularity, neglect, unsatisfactory behaviour or underperformance, the appropriate authority may, subject to subsection (3) of this section, either for a specified period or otherwise, do one or more of the following— (i) place the civil servant on a lower rate of remuneration, (including the withholding of an increment), (ii) reduce the civil servant to a specified lower grade or rank, or (iii) suspend the civil servant without pay.

Section 8 of S.I. No. 289/1996 - Prison (Disciplinary Code for Officers) 1996, refers to oral hearings and states the following; 1) An oral hearing shall be conducted by the Governor 2) The accused officer shall be present throughout an oral hearing and may put forward his answer to the allegation and call any relevant witness 3) The accused officer shall be allowed to have an officer of his or her choice to act on his or her behalf or assist him in the presentation of his or her case at an oral hearing. 4) The accused officer or, on his or her behalf, the officer assisting him or her, if so, requested by the accused officer, may present any relevant evidence, put questions to witnessed and address the Governor at an oral hearing.

While S.I. No. 289/1996 has now been replaced by the Civil Service Disciplinary Code 19 of 2016, Part 1, 1.2 of the Code sets out the Principles of the Code as follows; 1.2 Principles In circumstances where a concern arises about the conduct or performance of an individual it may be necessary to take disciplinary action. Where such circumstances arise, all civil servants must be treated in a fair and equitable manner in accordance with the principles of natural justice which will normally include: • The right of a civil servant to be informed of any concern about his or her conduct; • The right of reply to any such concern; • The right to be represented by a serving civil servant or by an official employed by a trade union holding recognition from the relevant Department or Office in respect of civil servants at that grade or rank; and • The right to a fair and impartial determination of the matter after all relevant facts have been considered.

It is respectfully submitted that the Respondent fell short with regard to the principles of natural justice. The Claimant was not in a position to respond in writing due to his hospitalisation and injuries he had suffered. He was not offered an oral hearing with the Governor or any other person in authority.

He did not receive the necessary information he requested under FOI.  The Claimant had concerns regarding his FOI request and it is submitted that the request was delayed and incomplete.

It is not in dispute that an investigation was conducted. The Claimant submits that the investigation was flawed and lacked substance. Throughout it simply was passed from one department to another it would appear. The Claimant had family, colleagues, friends, all of whom were indeed contactable. It is respectfully submitted that any investigation should have included contacting those parties directly. The Claimant was unrepresented up to the point when he engaged a solicitor. It was prejudicial to the Claimant in how his FOI request was handled. A reasonable employer would attempt to contact the family of an employee if that employee was not corresponding.

It is accepted that the Minister has the power to dismiss under the 1956 Act. However, it is submitted that any secondary provisions must also be accepted and considered. It would appear that the IPS partially complied with the Disciplinary Code 19 of 2016. It is accepted that attempts were made by the IPS to contact the Claimant in order for him to explain why his dismissal should not be proceeded. The Claimant had suffered catastrophic injuries and was hospitalised. If anyone was unaware of the Claimants injuries or his whereabouts prior to the airing of the Primetime programme on RTE in September 2022, they certainly became aware afterwards. It is entirely unreasonable to expect a person to make submissions or give an adequate explanation at that time. Apart from any injury or illness the Claimant incurred, he would also have suffered trauma at some level. The fact that the IPS were looking for submissions from the Claimant as to why he should not be dismissed would appear that they had already decided his faith. When the Claimant eventually made submissions in early 2023, they were deemed inadequate.

While S.I. No. 289/1996 has now been replaced by the Civil Service Disciplinary Code 19 of 2016, Part 1, 1.2 of the code sets out the Principles of the Code as follows:

Step 3 of the code sets out the preparation process in advance of a disciplinary meeting. The Claimant did not receive a disciplinary meeting with IPS. Step 4 – Deals with the disciplinary meeting itself but as mentioned, there was no meeting. Step 5 - Outcome of the disciplinary meeting and as previously, there was no meeting. Step 6 - Decide the appropriate disciplinary sanction, again there was no meeting, but the IPS had decided that the only option was to dismiss the Claimant.

Dismissal is and should be a last resort. The Respondent in their original submissions at hearing refer to the Claimants previous attendance record although it was noted that his previous attendance record had nothing to do with the current case.

The IPS was fully compliant with its obligation to ensure that the Complainant was provided with fair procedures. The IPS fully acknowledges that an employee whose employment is at risk of termination must be afforded fair procedures.

The Complainant had been absent without leave from his position as a Prison Officer at Mountjoy Prison for approximately 6 months and he failed to provide any notice or explanation during the period.

In circumstances were contact could not be achieved, there was no potential for engagement with the Complainant. A submission to the Secretary General was considered appropriate as the Complainant was not attending for work and was not contactable/engaging in communication and in sum was not therefore in a position to fulfil their contract of employment. This is not an uncommon process in such circumstances.

The process which would ultimately lead to his dismissal had commenced with a letter on 5th September 2022, from Ms Maria Sheridan of the IPS Human Resources Directorate asking the Complainant to explain why he had been Absent Without Leave since 11th June 2022.

As no response was received, on 7th October, the HR Directorate prepared a submission recommending dismissal for IPS senior management. It was further pointed out that as the Complainant had failed to provide any explanation for his non-attendance at work, the IPS had no option but to recommend that he be dismissed from the Irish Prison Service.

The process then moved from the HR Directorate to the IPS Director General and in turn to the Secretary General of the Department of Justice who, on the 21st October 2022, asked that Officer Meagher be afforded a further three weeks - by way of final opportunity - to provide an explanation as to why he should be retained in the Irish Prison Service

It was not until November 3rd 2022, that the Complainant himself contacted his employer, where he sent a brief email (stating: I am requesting a 14 day extension to my 21 day letter this is to help facilitate a more comprehensive reply as I am in hospital. Best regards B Meagher. Accordingly – as is clear from the contents of the Complainant’s email – the process relating to his proposed dismissal from the IPS was at an advanced stage when he finally contacted his employer.

As stated above, and per submissions, in this 21-day period, the Complainant and his sister on his behalf finally contacted the IPS. The IPS acknowledged that because he was receiving medical treatment, the Complainant should be allowed further time to provide his response.

There followed a number of further interactions between the complainant and the IPS before the HR Directorate concluded on the 21st of March 2023 that Officer Meagher had failed to provide an adequate explanation as to why he failed to inform his employer about his intentions or provide justification for his continued retention with the IPS.

Any submissions provided by the Complainant were considered by IPS and included within the submission issued to the Director General. Accordingly, it is strongly submitted that the Plaintiff was provided with ample opportunity to provide explanations why he should be retained before the recommendation to proceed with his dismissal was again forwarded to the Secretary General of the Department of Justice for approval.

Further, any submissions provided by the Complainant were included within the submission issued to the Secretary General of the Department of Justice. Satisfied that the Complainant had been given every opportunity to make his case for retention, the Secretary General Oonagh McPhillips, in accordance with Section 5 of the Civil Service Regulation Act 1956 as amended, approved Officer Meagher’s dismissal from IPS.

The authority afforded to the Secretary General of the Department of Justice in relation to dismissing employees of the Department in appropriate circumstances is further reflected in the Irish Prison Service’s Disciplinary Code. There it is acknowledged that the Minister for Justice, or Secretary General acting on his/her behalf, retains the power to dismiss an officer in appropriate circumstances. This power is set out in Section 15 of S.I. No. 289/1996 - Prison (Disciplinary Code For Officers) (Appendix 9) which states: “15 . For the avoidance of doubt it is hereby declared that nothing in these Rules shall be interpreted as affecting the power of the Minister or Governor to suspend from duty an officer or of the Minister to recommend the dismissal of an officer, or, if he or she is a probationer, to dismiss him or her or the power of the Minister or a Governor to assign or deploy officers in accordance with the exigencies of the PrisonService. While the S.I. No. 289/1996 - Prison (Disciplinary Code for Officers) has now been replaced by the Civil Service Disciplinary Code 19 of 2016 (Appendix 10) used for all Civil Servants, it is of note that the overriding power to dismiss is established by Primary legislation and therefore it is not fettered by the terms of the Secondary legislation and is stated simply for the avoidance of doubt. i.e. the power to dismiss was not established by the Statutory instrument and it follows that is not lost by the fact that the Statutory instrument is no longer in use. The Primary legislation remains enacted (as amended).

Furthermore, in line with Section 4 of Public Service Management Act, 1997:

 4.—(1) Except as otherwise directed by the Government or provided by or under any other Act, the Secretary General of a Department or Head of a Scheduled Office, as the case may be, shall, subject to the determination of matters of policy by the Minister of the Government having charge of the Department or Scheduled Office or by the Government, have the authority, responsibility and accountability for carrying out the following duties in respect of the Department or Scheduled Office:

 h) subject to the Civil Service Regulation Act, 1956 , the Civil Service Commissioners Act, 1956 , the Defence Acts, 1954 to 1993 (in respect of civilian employees recruited or appointed under the Defence Acts, 1954 to 1993) and any other Act affecting the appointment, performance, discipline or dismissal of civil servants or civilian employees of the Department of Defence, managing all matters pertaining to appointments, performance, discipline and dismissals of staff below the grade of Principal or its equivalent in the Department or Scheduled Office;

Accordingly, the process which was put in place by the HR Directorate to address the complainant’s absence without leave was entirely appropriate. The Complainant was at all times afforded fair procedures and was repeatedly given opportunities by the IPS to explain why his dismissal should not be proceeded with. Any submission made by him was comprehensively considered by the IPS, however, the Complainant was not able to provide an adequate explanation as to why he had abandoned his position and during the period of abandonment was contracted to a separate organisation. Accordingly, it is strongly submitted that the process which ultimately resulted in the Secretary General exercising her authority to accept the recommendation to dismiss was entirely legitimate.

The IPS strongly agrees that any employee whose job is at risk of dismissal is entitled to fair procedures. It is submitted that one of the leading cases addressing fair procedures in the context of dismissal is the Supreme Court’s decision in Nano Nagle School v Marie Daly [2019] IESC 63. In giving the leading judgment in that case Mr Justice McMenamin on behalf of the Court affirmed “our courts have always attached importance to fair procedures where employment is at stake.”

However, McMenamin J then went on to state that where misconduct is the ground upon which termination of employment is at stake, the level of fair procedures that an employee is entitled to can be less than in other circumstances. He said:

“On dismissal from employment for misconduct, a minimal form of fair procedures is required. Some contracts of employment may require more. Where ill-health is in issue then the principles laid out in Humphries v Westwood [2004] 15 ELR 296 and McKevitt v Dublin Bus [2018] IEHC 78 apply. In Humphries, Dunne J noted the following in her analysis of section 16 of the 1998 Act:

This section, on which the respondent relies, can provide a complete defence to a claim of discrimination on the disability ground if it can be shown that the employer formed the bona fide belief that the claimant is not fully capable, within the meaning of the section, of performing the duties for which they are employed. However, before coming to that view the employer would normally be required to make adequate enquiries so as to establish fully the factual position in relation to the employee's capacity.

… nature and extent of the enquiries which an employer should make will depend on the circumstances of each case. At a minimum, however, an employer, should ensure that he or she is in full possession of all the material facts concerning the employee's condition and that the employee is given fair notice that the question of his or her dismissal for incapacity is being considered. The employee must also be allowed an opportunity to influence the employer's decision.”

It is respectfully submitted that the Humphreys test endorsed by the Supreme Court clearly aligns with the process which was followed by the IPS in the complainant’s case for the following reasons: (a) The IPS gave the complainant every opportunity to ensure that he was “in full possession of all the material facts” concerning the complainant’s failure to attend for work for a period of in excess of four months without explanation. (b) The complainant was notified of the seriousness of the situation and that his dismissal from his position was at issue. (c) The complainant was given repeated opportunities to “influence the employer’s decision.” Indeed, as set out in our primary legal submission, the Secretary General of the Department of Justice, despite the fact that the process had proceeded to a number of stages, offered the complainant a further two weeks to make a submission on the basis that if he was able to provide an acceptable explanation, the Department could be dissuaded from proceeding with his dismissal.

In Bank of Ireland v Reilly [2015] IEHC 241 the following test in relation to the obligations of reasonableness that an employer is required to apply in accordance with Section 6(7) of the 1977 Act (as amended).  Section 6(7) makes clear that the court may have regard to the reasonableness of the employer's conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned - see Royal Bank of Scotland v. Lindsay UKEAT/0506/09/DM.

Applying Noonan J’s test to the circumstances of the complainant’s case it is again submitted that the approach taken was entirely reasonable. Not only was it the case that the complainant had abandoned his post without leave, but it subsequently emerged that he was contractually engaged by another organisation while he was contracted and obligated to work for the IPS.

The complaint that comes before this tribunal is referred under the Unfair Dismissal Act 1977 as amended.

The Respondent sets out a comprehensive defence of the procedure that it followed and stated that it extended time so that the Officer could have every opportunity to explain why he abandoned his post without permission. As no satisfactory answer was provided it followed that the trust and confidence that underpins the employer and employee relationship was fundamentally breached. In turn that led to the dismissal of the employee. 

Patricia Kelleher, who was then the assistant governor at Mountjoy with responsibility for human resources, said she had been told “towards the end of June” 2022 by a supervisor of Mr Meagher’s absence and that the complainant “hadn’t reported for duty any day” since the start of the month.

Efforts by her office to reach Mr Meagher by phone got no answer. The “rumour” among prison staff at that time was that he had gone to fight in Ukraine, which she reported in a phone call to the prison service’s HR directorate

Ms Kelleher saw Mr Meagher’s appearance on an episode of RTÉ's Prime Time in mid-September 2022, speaking from hospital in Ukraine.

After that, the matter was referred to the service’s absence management office, which sent a letter on September 21st noting that Mr Meagher had failed to provide an explanation for his absence and it was “deemed to be absence without leave”.

“All absences have an explanation, and if there’s none, it’s Awol,” said Colette Mulvey, the official in charge of the absence management office. On October 7th, 2022, she prepared a submission to the prison service’s director general. “We’ve been paying this man from June to September. He hasn’t been at work; we’re recommending he be dismissed.

“We can’t have a situation whereby people just don’t turn up – we tried to give every opportunity to Mr Meagher,” she said, adding later that Mountjoy Prison, where Mr Meagher had worked, was in “crisis mode” at the time of the absence, with prisoners sleeping on mattresses on the floor.

 It was “disingenuous” to suggest other prison officers were covering Mr Meagher’s shifts. During the investigation process Mr Meagher “started providing medical certification, the service was dealing with his absence being unauthorised”.

“It was tried to be turned retrospectively into a sick leave absence, but his absence was already unauthorised for three months before that,”

Governor Mary Leyden, who has responsibility for industrial relations in the prison service, stated that Mountjoy is 250 prisoners over capacity and such pressures mean it must rigidly manage staff absences.

A key consideration in this case is what constitutes fair procedures, and the parties differ fundamentally on whether fair procedures in fact were applied. A question arises about the standard of fair procedures that should apply in this case.

In McKelvey v Irish Rail [2019] IESC 79 Clarke CJ stated that the standard for an internal disciplinary process does not have to match the court process; however, it must be fair.

7.4 It should be recalled that an internal disciplinary process such as this is not a criminal trial. While the process must be fair, the formal rules of evidence or the procedures which govern either criminal or civil proceedings do not necessarily apply. The position of persons who may also have been the subject of investigation and the question of any evidence which they might give is not necessarily governed by the procedures or rules of evidence which would apply in a similar situation in the courts. Of course, the credibility of such persons may, in an appropriate case, be questioned on the basis of their own possible involvement. But they do not necessarily have to be treated in exactly the same way as a potential accomplice, co-accused or co-defendant in court proceedings. What is required is that Mr. McKelvey and his trade union representative be given a reasonable opportunity to challenge the evidence of any such persons on any reasonable basis. In those circumstances, it does not seem to me that there is, at least at present, any real basis for suggesting that legal issues of any substance will emerge.

In this case the exchange between the parties was through written correspondence and no oral hearing was held.

The Complainant argues that the failure to have a hearing with representation was a breach of fair procedures having regard to the fact that he had sustained a life-threatening injury and was hospitalised for a significant period. He states that the Civil Service Regulation (Amendment) Act 2005 which is relied upon by the Respondent to justify the termination must be considered with regard to the relevant codes:

Section 8 of S.I. No. 289/1996 - Prison (Disciplinary Code for Officers) 1996, refers to oral hearings and states the following; 1) An oral hearing shall be conducted by the Governor 2) The accused officer shall be present throughout an oral hearing and may put forward his answer to the allegation and call any relevant witness 3) The accused officer shall be allowed to have an officer of his or her choice to act on his or her behalf or assist him in the presentation of his or her case at an oral hearing. 4) The accused officer or, on his or her behalf, the officer assisting him or her, if so, requested by the accused officer, may present any relevant evidence, put questions to witnessed and address the Governor at an oral hearing.

While S.I. No. 289/1996 has now been replaced by the Civil Service Disciplinary Code 19 of 2016, Part 1, 1.2 of the Code sets out the Principles of the Code as follows; 1.2 Principles In circumstances where a concern arises about the conduct or performance of an individual it may be necessary to take disciplinary action. Where such circumstances arise, all civil servants must be treated in a fair and equitable manner in accordance with the principles of natural justice which will normally include: • The right of a civil servant to be informed of any concern about his or her conduct; • The right of reply to any such concern; • The right to be represented by a serving civil servant or by an official employed by a trade union holding recognition from the relevant Department or Office in respect of civil servants at that grade or rank; and • The right to a fair and impartial determination of the matter after all relevant facts have been considered

The Claimant had family, colleagues, friends, all of whom were indeed contactable. It is respectfully submitted that any investigation should have included contacting those parties directly. The Claimant was unrepresented up to the point when he engaged a solicitor. It was prejudicial to the Claimant in how his FOI request was handled. A reasonable employer would attempt to contact the family of an employee if that employee was not corresponding.

The Claimant had suffered catastrophic injuries and was hospitalised. If anyone was unaware of the Claimants injuries or his whereabouts prior to the airing of the Primetime programme on RTE in September 2022, they certainly became aware afterwards. It is entirely unreasonable to expect a person to make submissions or give an adequate explanation at that time. Apart from any injury or illness the Claimant incurred, he would also have suffered trauma at some level. The fact that the IPS were looking for submissions from the Claimant as to why he should not be dismissed would appear that they had already decided his faith. When the Claimant eventually made submissions in early 2023, they were deemed inadequate

I note in the recent High Court  Case Electricity Supply Board v Kieran Sharkey [2024] IEHC 65  where Mr Justice Rory Mulcahy referenced Glover that guarantee that fair procedures must apply; however, what constitutes fair procedures will depend on the circumstances of the case.

46. In Glover v BLN[1973] IR 388, the Supreme Court found that the constitutional guarantee of fair procedures found in Article 40.3 of the Constitution applied, at least in that case, in the employment context. Walsh J stated (at p. 425)

“This Court in In re Haughey held that that provision of the Constitution was a guarantee of fair procedures. It is not, in my opinion, necessary to discuss the full effect of this Article in the realm of private law or indeed of public law. It is sufficient to say that public policy and the dictates of constitutional justice require that statutes, regulations or agreements setting up machinery for taking decisions which may affect rights or impose liabilities should be construed as providing for fair procedures.”

47. The obligation for fair procedures in disciplinary proceedings is now firmly established, though it is also clear that what constitutes a fair procedure will depend on the particular circumstance of an individual case.

Fair procedures must apply in this case irrespective of the statutory right to dismiss as the right to fair procedures is a constitutional right as affirmed by the Supreme Court and must apply in dismissal procedures for misconduct.

The Respondent has stated that it has applied fair procedures. The case to be answered was clear and every opportunity was provided to explain why the Officer left his position without obtaining approved leave. The Chronology of exchanges is detailed and went on for months so that the Officer could respond to the allegation that he had left his post without permission.

The Complainant stated that he never planned to leave any shifts unattended. He paid a colleague a substantial amount to cover his shifts. He also stated that within the Prison Service it is commonplace for absences to be covered by colleagues who are paid by another colleague and has become part of the Annual Hours unofficial market. The Annual Hours system provides a stable income and encourages staff flexibility, while an official system does exist to cover absences and holidays, the fixed scheduling of shifts has given rise to an unofficial system where shifts are swapped or worked by another colleague.

The Complainant’s daughter is Ukrainian and prior to serving in the Prison Service he was in the Defence Forces. Naively, he wanted to help the Ukrainian people for a short period because of his prior Army background. He naively believed that with shift cover and his holidays he could be away for a meaningful period to support Ukraine without losing his job. That plan was challenged when it became clear due to security and the requirement not to compromise his position while on active duty, he could not contact colleagues at home or the prison service. While his absence was unnoticed for a while, his appearance on a Prime-Time programme brought matters to a head.

The Complainant was seriously injured in combat and any failure by him to engage in a disciplinary process when rehabilitating and traumatised he argues must be considered.

The Complainant accepts that he should be sanctioned; however, he states that the sanction is disproportionate based on the unique circumstances of this case.

In An Bord Banistíochta, Gaelscoil Moshíológ v The Labour Court (Respondent) and Aodhagán Ó Súird and The Department of Education (Notice Parties) [2024] IESC 38 O’Donnell CJ stated the following when considering whether or not the sanction was reasonable:

94. The 1977 Act effected a significant change and provided for an adjudication of the fairness of dismissal. It would, I consider be inherently unlikely that the Oireachtas would have created the complex statutory machinery providing for the adjudication on fairness of dismissals if the test was simply that the employer had made the decision, however unreasonably, on grounds such as conduct. It is also equally unlikely that the Oireachtas would have sought to effect such a significant change in the relationship between employer and employee, as to make the Employment Appeals Tribunal and its successors, the sole arbiters of the dismissal decision. The specific grounds deemed to be unfair dismissals, and those grounds deemed fair, are best understood as providing examples. The essential structure of the section follows from the presumption of an unfair dismissal under s. 6(1), that “… unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal ”. When this provision is read with s. 6(7) permitting the decision-maker to have regard to the reasonableness or otherwise of the conduct of the employer in relation to dismissal, it becomes clearer that the Act seeks to provide protection to employees by imposing upon employers the onus of establishing that a dismissal was fair.

95. Thus in  JVC Europe Limited v. Panisi [2011] IEHC 279 considered that:-

“ The issue for the tribunal deciding the matter will be whether the circumstances proven to found the dismissal were such that a reasonable employer would have concluded that there was misconduct and that such misconduct constituted substantial grounds to justify the dismissal ”.

96. In The Governor and Company of the Bank of Ireland v.  Reilly [2015] IEHC 241, [2015] 26 E.L.R. 229 (“Reilly”), Noonan J. said:-

“ That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned…”

The right to be heard is a central tenet of Natural Justice.

Redmond in Dismissal Law 3rd edition states at 13.14:

‘Perfect’ procedural justice has been defined as the ideal of a procedure guaranteed to lead to an outcome where justice is identified by some independent criterion. 24 The balance between substantive and procedural justice becomes most crucial in relation to the reasonableness of an employer’s decision to dismiss. Increasingly, procedural justice is being taken for granted by all concerned and the WRC’s function is to decide how exacting its tenets shall be. An employer will be regarded as having fairly dismissed an employee only if it both gave the employee the full benefits of a fair procedure and accorded him his just deserts or established a functional necessity for his dismissal. Section 6(7) of the Unfair Dismissals Act 1977 further emphasises the importance of reasonableness. In determining if 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

And at 13.16 Redmond states:

The WRC will scrutinise an employer’s conduct very closely where the employer is faced with a problem requiring investigation. In Dunne v Harrington 26 its predecessor, the EAT, declared that an employer may investigate either:

‘(a) personally in a fair and reasonable manner, i.e., as fully as is reasonably possible, confronting the “suspected” employee with “evidence”, checking on and giving fair value to the employee’s explanation or comments and allowing the employee to be represented at all such meetings/confrontations if the employee requests it or a union/management agreement requires it and to produce “counter evidence” 27 or he may:

(b)rely on the reports of others. If he does so without confronting the accused employee with the contents of the same, without hearing, investigating, and giving value to his replies, giving him reasonable opportunity to produce rebutting “evidence”, and to be represented if the employee feels this to be desirable, then such employer breaches a fundamental rule of natural justice, viz, that the other party (i.e., the employee in these circumstances) should be heard. In short, an employer acting on the reports of third parties and not acquainting the employee with same does so at his peril if it results in the dismissal of that employee.’ 28

And at 13.22 Redmond cites:

The High Court in Loftus and Healy restated the issue thus. It was not a question of whether the ex-employees were deprived of procedures to which they were entitled but:

‘whether the denial to them of such procedures is such that the defendant must be deemed to have failed to establish ... [the basis of its dismissal] as the whole or the main reason for and justifying their dismissal’

The first question that must be answered was there substantial grounds justifying dismissal? However, that question is qualified in the Act and the question is:

The essential structure of the section follows from the presumption of an unfair dismissal under s. 6(1), that “… unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal ”

The reasons provided for dismissal are as follows:

1. Officer Meagher abandoned his position with the Irish prison service on 11 June, 2022 to take up paid employment with the Ukraine armed forces. Officer Meagher has provided no acceptable reason for failure to notify, inform or discuss his plans with the Irish Prison Service prior to abandoning his post.

 2. Officer Meagher abandoned his position in Mountjoy Prison at a time when that prison was experiencing significant resource issues requiring crisis management interventions from IPS Headquarters. He took the decision to abandon his post with apparent disregard of the impact this would have on his colleagues and the IPS.

 3. His correspondence confirmed his departure was planned with evidence of clear, conscious, and calculated decision-making in consultation with family and Ex-military colleagues.

4. He departed, without notifying his employer about the nature and duration of his absence and this resulted in a large overpayment of salary.

5. Following his departure from the jurisdiction, Officer Meagher made no attempt to contact his employer for several months. It was only following his injury and cessation of his IPS salary that contact was made.

 6. The assertion in that the Officer Meagher had put in place arrangements to cover his absence in agreement with other (unnamed) officers is disingenuous. It would have been unworkable given that the duration of the absence was unknown and had not been reported to or approved by management. All prison officers are responsible for their own attendance and cannot assign their shifts and responsibilities to others on an open-ended basis. To do so would be fraudulent. Reference is also made to availing of annual leave, however, any applications for such leave must be made in advance and approved by management. This was not done.

7. His reported medical issues sustained in the Ukraine appear to be complex and are not disputed. The provision of medical certification however is not required as his absence without leave is unrelated and commenced several months earlier.

The reasons detailed fail to adequately present the Complainant’s reasons for this absence and what he stated was his plan for it to be short term. The case presented is lopsided. It is not based on a fair hearing as no hearing took place where he could have been competently represented. It does not adequately deal with the reasons for not engaging with the IPS. He was seriously injured and traumatised.

The officer was nearly a month absent before it was noticed:

1.      The Complainant’s failure to attend for work was notified to the Human Resources Directorate of the IPS by Assistant Chief Officer in Mountjoy Prison Padraig Martin on 29th June 2022.

This is more indicative of system that has a high degree of self-regulation and swapping as in most work environments absence of this length would have been noticed much earlier.

There is no mention or acceptance of an unofficial system that operates in a parallel with the official system to provide cover where officers unofficially swap with one another. This system is ignored and if it existed and operated would be fraudulent. This tribunal accepted the evidence of the Complainant that this unofficial swapping system in fact does exist.

There is no mention of any personal connection to the Ukraine conflict and that his daughter is Ukrainian and no acknowledgement of his motivation other than to describe it as irresponsible and abandoning his position. That is not accurate.

Both parties have given evidence to support their stated positions with the Respondent principally relying on senior Human Resource Officials to detail the procedures followed. The presumption is that the dismissal is unfair and unless having regard to all the circumstances, there were substantial grounds justifying the dismissal. The circumstances in this case are not so black and white.

The Officer did not intend to abandon his post. The Officer put in place cover for his absence. The reason why this system failed arose because he was not allowed to communicate while on combat duty. That was further compromised when he suffered a serious and life-threatening injury. I find the evidence of the Officer that the unofficial system, where shifts are covered by colleagues outside of the official approval process to be credible. It is also the case that any colleagues who gave evidence on his behalf for operating this system would likely face disciplinary action. This system based on his evidence has been operating for some time.

The Officer’s sister gave evidence about how difficult it was to engage the support of Union Officials to assist her brother. There is no doubt that this officer after being injured was not in a fit position to represent himself. He eventually did receive legal advice and representation. Legal advice does not substitute for competent representation at the workplace itself. There is an absence of any Union involvement in this case. The Complainant was absent of competent workplace official representation for a significant period of the investigation.

There was no formal hearing where he could have been competently represented and could explain why he left his post and why he thought the cover he put in place would be adequate. He was not provided an opportunity to challenge the Human Resources Officers findings that he abandoned his post and to question the Officials. There is no adequate record of the Officer’s account to arrange back cover or any mitigating factors that should be considered when considering what sanction is proportionate based on considering all the circumstances of this case. The written exchange of correspondence between the parties, is not a standard of fair procedures appropriate for dealing with this case and do not constitute fair procedures. For these reasons I find that the decision to dismiss was unfair and lacked procedural fairness. No serious consideration is evident in the Respondent’s submissions that they seriously engaged with the explanations provided by this Officer, that a fair and balanced investigation was conducted, and that the investigation was open to an alternative unofficial system where cover could be provided.

It is also the case that an organisation such as the Prison Service must be able to maintain discipline and ensure cover is in place on all shifts. While there are extenuating circumstances that gave rise to shifts being left uncovered, an employer must disapprove of such unofficial arrangements, albeit they appear to be commonplace in the service.

The Officer accepts that he has contributed significantly to the initiation of a disciplinary investigation as his absence was not approved albeit his evidence of a parallel unofficial system operating for cover has been accepted as credible evidence by this tribunal. 

An Annual Hours Shift system is in fact underpinned by an honour system and replaced an overtime system that gave rise to a huge variance in income. The system deters short term absence as such absence must be covered by work colleagues. Longer term absence is typically not covered from the bank of hours paid in advance and included in a stable income plan. The facts of this case and when considering all the circumstances:

·        The unofficial cover system

·        The paid cover put in place by the officer

·        The officer’s intention that his assistance would be short term for the Ukraine effort

·        The fact that his daughter is Ukrainian

·        His previous service in the Defence Forces

·        His naivety

·        His life-threatening injuries and inability to engage with the Service and reply to their correspondence

·        Difficulty in obtaining Union Official or competent workplace representation

tend to indicate that the requirement to apply fair procedures and have regard to all the circumstances relevant in this case did not happen.

There are flaws in the disciplinary investigation by not holding a formal hearing where questions could be raised, and further evidence presented. There is a failure by the employer to demonstrably show that the officer was fairly heard and competently represented allowing for his serious injury, a failure to show they understood and engaged with his defence.   The reason not to accept his explanation about paid cover to another colleague of a very significant amount of money, his intention of returning to Ireland in late August and the mitigating factors that extended his absence such as serious life-threatening injury and trauma are not adequately considered.  Limiting the investigation in this case, which is complex, to an exchange of correspondence and the right to a written reply does not meet the requirement for fair procedures where gross misconduct is alleged. The duration of his unapproved absence from work is distorted as he was seriously injured in September and had left the service in June.

The procedural flaws and failure to have regard to all the circumstances must lead to a conclusion that the Employer has not shifted the presumption of an unfair dismissal.

Reinstatement is not a just remedy as the Officer failed to follow the correct procedures to obtain leave of absence. It is clear why he did this as the staff shortages in the service meant that such leave would not be approved. The Employer must be able to plan and have certainty about cover particularly under an Annual Hours Plan.

The Employer believes that trust and confidence has been so undermined, reinstatement or reengagement are not appropriate.

The Officer is not a senior manager in the service. There is a shortage of trained prison officers. There is no question about the officer’s character and honesty. He previously served in the Defence forces. However, he does need to prove to his employer that he is reliable and has learnt from a set of circumstances that is highly unlikely to occur again. Compensation is not an adequate remedy where the Employer has failed to consider all the circumstances including mitigating factors before determining that there were substantial grounds justifying dismissal based on the presumption that the dismissal is unfair.

As the employer has not made out their case adequately to justify dismissal and the circumstances of this case are the opposite of most misconduct cases, and in fact demonstrate courage and character to help others, I find that reengagement to be the most appropriate remedy. I order that the officer is reengaged within 6 weeks of the date of this decision and is subject to a 6 months’ probation period. His absence to be treated as leave of absence for the calculation of the appropriate incremental salary point and staff service benefits on the date of reengagement.

I determine that the Complainant was unfairly dismissed.

Reinstatement is not a just remedy as the Officer failed to follow the correct procedures to obtain leave of absence. It is clear why he did this as the staff shortages in the service meant that such leave would not be approved. The Employer must be able to plan and have certainty about cover particularly under an Annual Hours Plan.

The Employer believes that trust and confidence has been so undermined reinstatement or reengagement are not appropriate.

The Officer is not a senior manager in the service. There is a shortage of trained prison officers. There is no question about the officer’s character and honesty. He previously served in the Defence forces. However, he does need to prove to his employer that he is reliable and has learnt from a set of circumstances that is highly unlikely to occur again. Compensation is not an adequate remedy where the Employer has failed to consider all the circumstances including mitigating factors before determining that there were substantial grounds justifying dismissal based on the presumption that the dismissal is unfair.

As the employer has not made out their case adequately to justify dismissal and the circumstances of this case are the opposite of most misconduct cases and in fact demonstrate courage and character to help others, I find that reengagement to be the most appropriate remedy. I order that the Complainant is reengaged within 6 weeks of the date of this decision and is subject to a 6 months’ probation period. His absence to be treated as leave of absence for the calculation of the appropriate incremental salary point and staff service benefits on the date of reengagement.

Re-engagement