Case Number: ADJ-00026339. Workplace Relations Commission

• Docket Number: ADJ-00026339
• Hearing Date: 20 October 2020
• Date: 15 January 2021
• Court: Workplace Relations Commission
• Respondent: A Government Department

ADJUDICATION OFFICER DECISION.

Adjudication Reference: ADJ-00026339

Parties:

	Complainant	Respondent
Anonymised Parties	An Office Worker	A Government Department

Representatives Mark O’Connell BL, instructed by Leo Fay , Solicitor, of Michael J Kennedy & Co Elizabeth Donovan BL instructed by Chief State Solicitor's Office

Complaint:

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00033572-001	09/01/2020
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00033578-001	09/01/2020
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00033609-001	09/01/2020

Date of Adjudication Hearing: 20/10/2020

Workplace Relations Commission Adjudication Officer: Michael McEntee

Procedure:

In accordance with Section 8 of the Unfair Dismissals Acts, 1977 – 2015following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

At the commencement of the Oral Hearing on the 20th October 2020 it was agreed that CA-00033572-001 was the principal claim. CA-00033578-001 and CA-00033609-001 were not being proceeded with as they were both duplicate complaints to the principal complaint.

A major Legal Point concerning the Standard of Proof required was raised during the Hearing.

Supplemental Legal submissions were invited from both Parties and received during November 2020

Background:

The issues in contention concern the alleged Unfair Dismissal of an Office Worker by a Government Department. The employment began in February 2001 and ended with Dismissal on the 5th December 2019.

1: Opening Legal Arguments – Level of Proof required.

1:1 Background.

By way of background the Complainant was dismissed for serious misconduct from a Civil Service clerical position in a high profile, ultra-high security State Service. Despite all guarantees of confidentiality, it was strongly argued by the Complainant’s Legal Advisor that it is virtually impossible to keep this dismissal a private matter. The re-employment prospects for the Complainant will be challenging, if not to say, bleak. It was alleged to be a “doomsday” situation for the Complainant. He was effectively unemployable.

1:2 The Legal question raised – Burden of Proof in an Employment “Doomsday” situation.

1:2:1 The Complainant position/Arguments – the “Third” Level of Proof

The Complainant’s Legal Team argued that in a “doomsday” situation, such as this, a much higher standard of proof is required of an employer. A simple reliance on a Civil standard of “Balance of Probabilities” is not appropriate rather a formula closer to the Criminal standard of “Beyond all Reasonable Doubt” is required. This was referred to by the Complainant’s Legal team as “the third or intermediate standard of proof”

The issue had particular relevance to this case as the major investigation relied upon by the Respondent was based on conclusions derived on a Balance of Probability basis. The Complainant argued that these conclusions were not legally sound and fell short of a required high standard of natural justice and fair procedures. The flawed conclusions fatally impugned the entire Dismissal process.

Legal precedents from the cases of Georgopoulos v Beaumont Hospital Board [1993] ELR 246 and Kelly v Minister for Agriculture [2012] IEHC 558 were cited as supportive of the case. It was advanced that Mr. Justice Hedigan in the Kelly case referred to above had accepted that where an employee faces a threat of dismissal, his or her employer will “need to prove guilt on the basis of ahigher degree of probability.”

In this case and in view of the background which would never be capable of being kept confidential the Dismissal was a Doomsday decision for the Complainant. In this context a reliance on a simple Balance of Probabilities formula to justify a Dismissal which would have profound consequences for the Complainant was in itself a gross injustice.

1:2:2 The Respondent position on the Burden of Proof.

The Respondent Legal team strongly contested the concept of a “Third level of Proof” and cited considerable case law from the Irish Supreme Court. The cases of Banco Ambrosiana SPA v Ansbacher and Co Ltd, [1987] ILRM 669, Georgopoulos v Beaumont Hospital Board [1993] ELR 246 and Hazel Lawlor v The Planning Tribunal [2010] IR 270 were advanced in support.

In summary these Supreme Court cases did not find in favour of an intermediate “Third level of Proof” between the Civil Balance of Probability and the Criminal Beyond Reasonable Doubt.

In an Employment context the comments of Finlay CJ in the Banco Ambrosiana case were advanced by the Respondent.

If, as has been suggested, the degree of proof of fraud in civil cases is higher than the balance of probabilities but not as high as to be (as is required in criminal cases) beyond reasonable doubt, it is difficult to see how that higher degree of proof is to be gauged or expressed. To require some such intermediately high degree of probability would, in my opinion, introduce a vague and uncertain element, just as if, for example, negligence was required to be proven, in certain cases to the level of gross negligence.

In addition, in the Hazel Lawlor v The Planning Tribunal [2010] IR 270 case Mr. Justice Murray stated that

“In principal, evidential requirements must vary depending on the gravity of the particular allegation. This is not to adopt “the sliding scale” of proof advocated by counsel for the applicant, but rather to simply recognise, as an integral part of fair procedures, that a finding in respect of a...