Intro
In the recent case of Colm Keane v The Revenue Commissioners, UDD2125 the Complainant appealed the decision of the WRC to the Labour Court.
Background
The Complainant was employed by the Respondent from 2007 until his dismissal in July 2018. The Complainant was employed as a Higher Executive Officer and was a member of the Respondent’s audit team.
Adjudication Officer Ewa Sobanska in the WRC concluded that the Respondent had not been unfairly dismissed concluding that the Complainant’s actions constituted a breach of the Respondent’s policies which amounted to gross misconduct and that the Respondent actions were within the range of reasonable responses open to it and that substantial grounds did exist to justify the Complainant’s dismissal.
Facts: The case surrounded an incident in which the Special Compliance Branch staff of the Respondent responded to a social media advertisement offering cigarettes fort sale. On 5th January 2018 officers of the Respondent seized 400 cigarettes from the Appellant who had delivered them. The cigarettes in question did not carry an Irish Tax Stamp.
The Complainant submitted that he had returned from Poland with his girlfriend where his girlfriend had purchased three cartons of cigarettes. On return, his girlfriend had offered two cartons of these cigarettes for sale on social media. A potential buyer responded, and his girlfriend asked the Complainant to deliver the cigarettes to the potential buyer which was an employee of the Respondent engaged in customs work. The Complainant did acknowledge that he was aware that the actions of his girlfriend were unlawful but nevertheless had agreed to pass on the cigarettes on her behalf. The Respondent pointed out that the Complainant involved himself in the sale of contraband cigarettes contrary to the Finance Acts and Revenue’s rules which are the specific field of legislation and rule he was employed to safeguard.
The Complainant submitted that the procedure carried out by the Respondent was flawed and varied from the written disciplinary code of the Respondent. The Complainant
submitted that the Personnel Officer incorporated both an investigation process and a disciplinary process into one which led to the Complainant being dismissed which he submitted was not a fair process.
Decision: The Court concluded that having reviewed the process including the appeals process, that there was a clear lack of separation of the roles of investigation, disciplinary and appeal which created a fatal deficiency in the processes used to address the matter of the allegation against the Complainant. It was for that procedural reason that the Court concluded that the dismissal of the Complainant was unfair.
The Court then had to consider the appropriate form of redress in the circumstances. Having regard to the underlying and undisputed facts of the matter, compensation was deemed to be the appropriate form of redress. The Court noted the submission of the Complainant wherein he confirmed that he had made no substantial effort to mitigate his financial loss by way of attempting to secure employment. The Court also took into consideration the extent to which the conduct of the Complainant contributed to his dismissal. The Court concluded that the conduct of the Complainant contributed to the level of 100% to his dismissal. Therefore, taking all these factors into consideration the amount of compensation which was just and equitable having regard to all the circumstances was nil.
Takeaway for the Employers: Employers should ensure that even in situations where an employee contributes significantly to their dismissal that fair procedures are followed to ensure that the ultimate decision can be upheld.
Link – https://www.workplacerelations.ie/en/cases/2021/april/udd2125.html
Authors – Eva Lindsay and Anne O’Connell
7th May 2021
Anne O’Connell Solicitors
19-22 Lower Baggot Street, Dublin 2
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