The “almost unprecedented” sacking of a civil servant by the head of a government department, against advice from a specially convened disciplinary panel to demote the man instead, was unfair, the Workplace Relations Commission (WRC) has ruled.
The move to dismiss the man was at odds with “natural justice”, WRC adjudication officer Michael McEntee wrote in a ruling published on Thursday, in which he awarded the civil servant €40,000. A civil service Disciplinary Appeals Board (DAB) had recommended demoting the man, a full-time executive officer with 12 years’ service, to the role of clerical officer after his head of personnel upheld complaints about his performance. But the secretary general overturned the DAB decision and dismissed the civil servant on the grounds of serious misconduct.
The man, whose annual salary at the time of his dismissal was €39,364, later sued the department for unfair dismissal at the WRC.
In the published decision Mr McEntee said the complainant commenced his employment in the civil service in September 2006. Neither the complainant nor the department he worked for were named in the ruling.
The complainant had told the WRC that he previously worked at Revenue without any issue regarding the quality of his work and was “highly thought of” by former colleagues. But shortly after transferring to the department he began to experience numerous problems with his new duties and superiors. In December 2017, he was placed on a Performance Improvement Plan (PIP). Less than a year later, on November 27th, 2018, he was issued with a written warning about his performance. Then, in March 2019, the department’s human resources director recommended the man’s dismissal after claiming there had been no improvement in his performance “despite all supportive efforts [that] had taken place”.
The man appealed the decision to sack him to the DAB, which recommended in June 2019 that demoting him to the grade of clerical officer would be the more appropriate measure. The secretary general, however, intervened and, according to Mr McEntee “set aside the DAB recommendation and dismissed the complainant by letter of the 9th of August 2019 on the grounds of serious misconduct”.
In his submissions to the WRC, the man claimed his sacking had been “a completely disproportionate penalty” and that he had been the victim of bullying by his superiors. He further claimed that the dismissal process engaged in by the secretary general “was in flagrant breach of all the rules of natural justice”. The secretary general, he alleged, had failed to give him an opportunity to “further state his case, especially when the ultimate penalty of dismissal was being imposed”. The man also told the WRC that the “overturning of a DAB finding was extraordinary and almost unprecedented across the entire civil service”.
The secretary general – who has since left the department – told the WRC that the decision to sack the man was one he had “not taken lightly”. Described by Mr McEntee as a “most impressive witness”, the secretary general said he recognised that the overturning of the DAB finding “was a far from trivial matter that carried serious repercussive effects across the entire civil service”.
However, he maintained the complainant had “serious performance flaws” in relation to accepting the “proper authority” of his superiors and following accepted work practices.
“On overall balance it was his view that the continued employment of the complainant was not in the best interests of the civil service and he had decided to opt for the dismissal decision,” the adjudication officer noted in his decision.
“In cross-examination he [the secretary general] vigorously maintained that the dismissal decision was his alone and that he had not been subject to any external pressures or lobbying,” the WRC officer continued. He ruled, however, that the decision to dismiss the man went against “the highest standards of natural justice” which “the gravity of the situation required” and he had been unfairly dismissed.
Absolving the secretary general of blame, Mr McEntee said the civil servant was entitled to 54 weeks’ pay, or €40,878.
“It was a structural issue that was at fault – one person, albeit the most senior departmental officer, should not have been asked, bearing in mind all the possible natural justice complications, to make this decision which was, essentially, overturning a DAB finding,” he added. “Accordingly, a finding of unfair dismissal, on the grounds of natural justice, has to be made.”
