A prison officer who was sacked after she was accused of going awol to Australia for 18 months having been refused a career break while suffering from stress has won her job back.
A senior civil servant decided she was to be dismissed rather than return to work after the worker told her bosses the she had to act to “save her marriage”, the Workplace Relations Commission was told.
In an anonymised decision under the Unfair Dismissals Act 1977 published on Tuesday, the tribunal ruled that the prison officer’s bosses were “wholly unreasonable as well as unfair” in the case and had “concocted an extraordinary and utterly bizarre set of procedures devoid of any sense of fairness whatsoever”.
It ordered that the worker be re-engaged as a prison officer almost two years on from her dismissal in July 2021.
The complainant told the tribunal said she had been looking for a career break in 2018 because of “personal stresses” stemming from “difficulties” in coming out as gay at work as a prison officer and the death of her wife’s father.
Her wife needed to return home to Australia, the complainant said, and she herself was suffering physical manifestations of stress including alopecia, gastric ulcers, insomnia and anxiety.
The worker’s barrister, Roddy Maguire, appearing instructed by solicitor Siúna Bartels, exhibited a November 2018 report by an in-house occupational health doctor who noted the worker was “very upset and distressed” about the employer’s refusal of the career break.
She was taken off the payroll after going over her paid sick leave limit but remained absent into 2020, with the employer writing to her in June that year as it reached out to all staff missing from work, the tribunal heard.
When the worker replied to that letter, she was informed she “should have been removed from payroll” in November 2018 for “being absent without official leave” – and had been “overpaid” during her absence.
Barrister Peter Leonard, who appeared for the employer instructed by Jennifer Murray of the Chief State Solicitor’s Office, said the complainant had been written to in March 2019, a month after going over her sick leave limit, when her employer realised she had failed to provide medical certs since the previous November.
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He said the letter at that stage said if the prison officer didn’t send certs that her “retention in the prison service” would become an “issue”, but that there was no reply to it.
Mr Leonard said the director general of the service took the view the worker had “abandoned her post, travelled to Australia and been absent without leave for nearly two years”.
A plan to sack her was then sent forward to the Government department supervising the employer and was approved by its secretary general, who made the ultimate decision to dismiss.
“In law, there is no such thing as an open-and-shut case. A person accused of wrongdoing is entitled to a fair hearing,” wrote adjudicating officer Breiffni O’Neill.
He wrote that although the worker had been cleared as medically fit to go back to work in September 2020, the employer “effectively suspended” her when she sought to return.
Mr O’Neill wrote that he considered suspension “a sanction in its own right and a significant indication of prejudice” on the employer’s part – though a HR officer had disputed that a suspension was imposed at all.
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“I find this assertion to be extraordinary and do not understand what the point was in sending her to the chief medical officer if the respondent had no intention of allowing her back to work,” he wrote.
It was “even worse” that the same HR officer who suspended the prison officer carried out the investigation and recommended dismissal, he added.
He said the HR officer’s letter to management urging dismissal also “augmented” the allegations levelled at the prison officer by referring to her going to Australia, which he noted had not been put to the complainant when she was told her file was being sent to the Government department.
Mr O’Neill said the employer had been “wholly unreasonable as well as unfair” – referring to “flagrant and extraordinary breaches” of the statutory code of practice on disciplinary processes.
“The respondent concocted an extraordinary and utterly bizarre set of procedures devoid of any sense of fairness whatsoever, and that their conduct was throughout the process hugely prejudicial. Accordingly, I find that the dismissal of the complainant was unfair,” he wrote.
Mr O’Neill noted the complainant’s “blemish-free” disciplinary record over 11 years before taking leave – and her evidence on the employer’s approach to prison staff working under the influence of drink or drugs – and said the unauthorised absence should not be cause for a loss of trust.
He ordered the complainant be re-engaged from April 24th, 2023, as a prison officer, with the period following her dismissal on July 16th, 2021, to be treated as “unpaid suspension”.