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Latest in Employment Law>Case Law>Tom Kelleher v An Post [2013]
Tom Kelleher v An Post [2013]
Published on: 10/09/2013
Issues Covered: Discipline
Article Authors The main content of this article was provided by the following authors.
The Employment Law Team at CKT
The Employment Law Team at CKT
Background

The Plaintiff was the Postmaster in Newcastle West, County Limerick for 19 years. His wife and son, Ronan are employed in the post office also. The Plaintiff’s other son, Tommy (who was not an employee), was kidnapped and held for ransom in June 2011 while the Plaintiff and his wife were on holidays in Spain. 

The Plaintiff’s son, Ronan and the two remaining full time employees handed over €105,000 to the kidnappers. Tommy Kelleher was then released without harm. The employees did not take any step to contact the Gardaí or any other party until Tommy was safely released. The kidnapping triggered an audit and subsequent investigation into a variety of matters including, inter alia:-

A. A failure to follow An Post security procedures during the kidnap resulting in the loss of €105,000

B. Misuse of An Post money

C. A failure to process business deposits on the day of receipt

D. Unauthorised access to the An Post Counter Automation System. 

The audit and investigation commenced on the morning following Tommy’s release by the kidnappers. At this stage, the Plaintiff and his wife returned home and were available to assist in the investigation. The Plaintiff was suspended on the same day and his salary was immediately stopped. 

The four complaints above were set out in detail and given to the Plaintiff for his response. The detailed letter “concluded” that a failure to follow the company’s security policy greatly facilitated the theft of €105,000 as the Plaintiff had failed to train his employees on security measures to implement in the event of a “tiger” kidnapping. It also noted that the Plaintiff had admitted to the misuse of company funds (a €12,000 three day advance in his salary before leaving for his holidays). The Plaintiff was given the opportunity to set out his response in writing or at an oral hearing. 

The Plaintiff criticised the procedures used and specifically alleged that the investigator had pre-determined the issues given the comments above set out in the initial letter. He chose not to attend an oral hearing and wrote a final letter accepting each of the criticisms outlined above. 

An Post, following a review and consideration of the letters and issues before it, chose to terminate the Plaintiff’s employment with immediate effect. It further sought the Plaintiff’s proposals on the return of €52,500, being half of the money stolen during the raid, in accordance with the terms of the Plaintiff’s contract. 

The Plaintiff appealed the decision in accordance with the procedures. An Post appointed an internal appeals manager who notified the Plaintiff as to the procedure that would be followed. An oral hearing took place and An Post sent the Plaintiff a summary of the meeting and gave him 7 days to reply with any comments. The appeals manager then prepared and furnished a report/recommendation to the Director of Retail Operations who ultimately upheld the original decision to terminate the Plaintiff’s employment. The Plaintiff was not given a copy of this report. 

DETERMINATION

Peart J in the High Court reviewed each stage of investigation and opportunities provided to the Plaintiff to respond to the allegations made. 

He addressed the Plaintiff’s criticisms of:-

1. The allegation of pre-determination of the issues by the initial investigator.
2. An Post’s refusal to hand over the appeals manager’s finding/report to the Plaintiff. 

The Court stated that the alleged pre-determinations set out in the investigator’s initial letter were of “a prima facie nature, capable of revision or amendment” in light of any reply the Plaintiff chose to submit. The Plaintiff was given every opportunity to respond to the issues raised and he availed of that opportunity in many letters written to An Post.

The Judge held that the Plaintiff was not entitled to be furnished with a copy of the appeals manager’s report. Peart J said that there was no requirement on the appeals manager to go back to the Plaintiff for further submissions. The appeal hearing was the forum in which the Plaintiff was given a full opportunity to fully set out the basis of his appeal. 

The Court held that the Plaintiff was advised of the allegations against him in a comprehensive manner and given every opportunity to respond to the allegations made. He was afforded oral hearings (at the original investigation and appeals stage), and an opportunity to make both oral and written submissions at both stages. 

Peart J held that the procedures adopted by An Post were “scrupulously fair” and upheld the Plaintiff’s dismissal.

LEGAL REVIEW 

The Court carefully reviewed each stage of the disciplinary focus reminding employers of the necessity to strictly comply with its own policies and procedures. 

This case is unusual in that the appeals manager’s report was not furnished to Mr Kelleher prior to it passing to the Director of Retail Operations. It is apparent from this decision that Mr Kelleher had agreed to the disciplinary and appeals procedures in place and An Post was not required to furnish the report as part of this process. It highlights the importance to have appropriate policies in place to deal with disciplinary issues, sanctions and appeals and expressly set out what the employee is entitled to receive at each stage. 

The case also raises the question of what is a right of appeal? Is the employee entitled to a full re-hearing or is it just dealing with specific grounds raised by the employee? The precise scope of an employee’s right to appeal should be addressed comprehensively in the employer’s policy.

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Disclaimer The information in this article is provided as part of Legal Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article. This article is correct at 10/09/2013
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