A senior member of a Revenue Commissioners audit team fired for gross misconduct after his involvement in selling contraband cigarettes for cash has won his unfair dismissal action.
However, Colm Keane (38) of Shravokee, Clonlara, Co Clare, will end up empty-handed from the case after the Labour Court ruled that he should receive zero compensation.
It follows Labour Court chairman, Kevin Foley finding that Mr Keane’s own conduct contributed 100 per cent to his dismissal.
Mr Foley stated that the 'nil' award "is just and equitable" having regard to all of the circumstances.
Procedures
Mr Foley found that the dismissal of Higher Executive Officer, Mr Keane was unfair for a procedural reason after concluding that the lack of a clear separation of the roles of investigation, disciplinary and appeal "created a fatal vulnerability" in the processes employed to address the allegations made against Mr Keane.
The case was before the Labour Court after Mr Keane appealed a ruling by the Workplace Relations Commission (WRC), which found that he was not unfairly dismissed.
Mr Keane’s dismissal arose from a ‘sting’ operation in 2018 where the Revenue’s Special Compliance Branch responded to an advert on Facebook offering cigarettes for sale.
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As a result of the advert, Mr Keane delivered the cigarettes on January 5th 2018 and the Revenue staff seized 400 cigarettes from him without an Irish Tax Stamp.
Mr Keane was sacked for gross misconduct in July 2018 after Revenue found that his actions breached Revenue’s Code of Ethics; compromised his standing within Revenue and potentially imperilled the Revenue's good reputation.
In its findings, Mr Foley stated that there is no dispute between the parties that Mr Keane, a senior Revenue official, “participated in and facilitated an exercise involving the supply of cigarettes which did not carry the appropriate Irish Tax Stamp”.
Mr Foley stated that the court accepts that the Revenue Commissioners “would reasonably regard the events which occurred involving the appellant (Mr Keane) as serious and very significant”.
Contraband cigarettes
The Revenue Commissioners pointed out at the Labour Court hearing that Mr Keane’s job was as part of an audit team in which it was his job to confront non-compliance with Revenue rules.
Revenue stated that Mr Keane involved himself in the sale of contraband cigarettes contrary to the Finance Acts and Revenue rules which are a specific area of legislation and were rules that he was employed to safeguard.
Revenue claimed that Mr Keane did not demonstrate an appreciation of the significance of his misconduct and is in denial.
Girlfriend
A witness for the Revenue told the Labour Court hearing that Mr Keane did not stand to gain financially from his misconduct but concluded that the admitted actions constituted serious misconduct.
Mr Keane - employed with Revenue since 2007 - stated that it was his girlfriend who posted on Facebook about two cartons of cigarettes for sale after the two had returned from Poland.
A potential buyer who was in fact an undercover Revenue official responded and Mr Keane passed on the cigarettes on his girlfriend's behalf.
Mr Keane told the Labour Court that he was aware that the actions of his girlfriend were unlawful but nevertheless had agreed to pass on the cigarettes on her behalf.
Mr Keane had been promoted twice within Revenue and had an unblemished record of service before the incident.
In the Labour Court’s findings, Mr Foley stated that the court didn’t consider that re-instatement or re-engagement would be appropriate in the case.
