Department of Foreign Affairs dismisses worker for issuing fraudulent passports after five-year paid suspension
THE DEPARTMENT OF Foreign Affairs has dismissed an office worker accused of fraudulently issuing Irish passports.© Shutterstock Aaftab Sheikh
The office worker continued to receive full pay during a near five-year suspension from his Civil Service post before his eventual dismissal in December 2019 for serious misconduct.
A large contributor to the length of the suspension was a Department commissioned an independent investigation into the allegations against the worker that took almost two years to complete.
Now, the office worker has failed in his unfair dismissal action against the Department of Foreign Affairs.
This follows Workplace Relations Commission (WRC) Adjudication Officer, Michael McEntee finding that the dismissal was not unfair.
Mr McEntee stated that the man was employed in a civil Service clerical position “in a high profile, ultra-high security State Service”.
Mr McEntee stated that “being careful not to be dazzled by the high-level security issues, in this case, the major consequences of this case could not be ignored” in considering the Department’s sanction of dismissal.
He found that as natural justice in the process was observed at all stages, proper procedures were followed, and the decision to dismiss was in the “band of reasonableness” “I have to find, from the evidence, that the dismissal was not unfair”.
Mr McEntee stated that it was of some concern that the investigation report took some two years to complete and while the delay was most undesirable, it did not amount to a departure from fair procedures of such a degree as to warrant setting the dismissal aside.
Legal representatives for the man argued that as a result of his dismissal he was “effectively unemployable” and was facing a “doomsday” situation.
The civil servant was suspended on full pay in February 2014 after he was arrested by Gardai concerning the alleged fraudulent issuing of Irish passports.
The matter came to light after a number of discoveries by British police “of fraudulently obtained but genuine Irish identity documents”
However, in September 2016, the Director of Public Prosecutions (DPP) informed the parties that no charges would be made against the civil servant by the Gardai.
The Department of Foreign Affairs had commenced “a major internal investigation” into the allegations that the office worker had fraudulently issued Irish passports and breached Data Protection by unauthorised accessing of personal records.
However, that investigation was put on hold to allow the outcome of the Garda investigation to become known.
After the DPP decision not to prosecute and discussions with the man’s union an independent investigation of the matter was undertaken.
The earlier investigation and any draft conclusion the investigator might have reached were not known to the independent investigator.
The “most thorough” new investigation commenced in May 2017 and took almost two years to complete before the final report, running to over 1,200 pages, was issued in April 2019.
The report made “seriously negative findings” against the office worker on the balance of probabilities and on December 5th 2019, the Secretary-General of the Department of Foreign Affairs confirmed the dismissal on the grounds of Serious Misconduct.
This followed the Civil Service Disciplinary Appeals Board in November 2019 upholding a recommendation made by the Department’s Head of HR to dismiss the worker in July 2019.
Legal representatives for the Department of Foreign Affairs told the WRC that the grounds underlying the dismissal were extremely serious for a person employed in a most sensitive State security setting.
The lawyer stated that the dismissal “was the only realistic option available to the employer”.
The Department stated that an exhaustive HR investigation and disciplinary process had taken place, the rules of natural justice had been scrupulously observed and there were no flaws in the procedures or any processes to justify setting aside the dismissal finding.
However, the civil servant’s legal team, Mark O’Connell BL and Leo Fay of Michael J Kennedy Solicitors argued that the delays in processing their client’s case by the Department of Foreign Affairs “had been extraordinary and most oppressive”.
The man’s lawyers stated that a suspension, albeit even on full pay as in this case, lasting almost five years, “was in itself an unjust penalty and a major breach of the worker’s legal and constitutional rights”.
The worker claimed that the two-year long independent investigation was “fundamentally flawed” and cited numerous incidents in the investigation that he felt were basically unfair to him.
The complainant argued that the conclusions in the independent report were not legally sound and fell short of a required high standard of natural justice and fair procedures.
The man’s lawyers stated that their client’s “legal and constitutional rights had been egregiously trampled upon” by the independent investigation process.
They argued that the complainant was entitled to a higher standard of proof than the simple balance of probabilities basis used by the Investigation process.
They argued that the dismissal was fundamentally flawed as it was the product of a legally flawed investigation process coupled with a most egregious set of unnecessary delays that were in themselves the imposition of an illegal penalty.
Solicitor for the man, Leo Fay confirmed on Friday that an appeal has been lodged with the Labour Court against the WRC ruling and declined to comment any further on the case.
Asked to comment on the outcome of the case, a spokesman for the Department of Foreign Affairs said on Friday: “It is the policy of the Department not to comment on the details of employment of current or former employees.”