AN Iarnród Éireann supervisor who narrowly escaped dismissal in connection with a rail and sleeper theft scam has lost an unfair dismissal claim after he was later fired when the company discovered payments for work that was not done.
Damien Smullen, Friars Hill, Wicklow, an acting permanent way inspector, was first recommended for dismissal in March 2007 for alleged involvement in the illegal disposal of rails and sleepers, the Employment Appeals Tribunal was told.
After an ad miseracordiam appeal heard by Iarnród Éireann’s director of strategy and business development in the presence a union official who is also a worker director, it was decided to give him another chance. The decision was subject to a number of conditions, including payment of €100,000 in recompense, a final warning and two years of special monitoring.
“During this period, should new evidence of past wrongdoing emerge which was not currently available or any breach of any element of discipline, there will be a mandatory sanction of dismissal,” the appeal finding said.
The appeal resulted in Mr Smullen being allowed to resume his career after taking into account his “admissions and his family circumstances, including the record of his father”, his work record and the “apparent co-operation given to the gardaí . . . ”
It said “inappropriate activity” was admitted “both internally and before the law courts” of a particular instance where Mr Smullen was involved in arranging the theft of company materials to sell them and share the profits.
It was also acknowledged that there were “many other instances of a similar nature over a long period of time”. Mr Smullen also admitted that he had engaged in “other inappropriate activity”, which resulted in personal gain and cost to the company.
However, following his reinstatement, Mr Smullen was dismissed in January 2008 after alleged discrepancies subsequently emerged surrounding a €250,000 bill to remove spoil from the site of a new Dublin Docklands station.
Mr Smullen was civil supervisor on the site in early 2006 but the audit discrepancies did not emerge until after he got his job back. The tribunal was told Iarnród Éireann’s position was that Mr Smullen had signed off on invoices which showed that more than 600 truck-loads of spoil, representing 11,000 tonnes of material, were removed from the site by a particular contractor.
The company’s investigations suggested that 23 truck-loads, representing 409 tonnes of spoil, was the limit of the contractor’s involvement. Iarnród Éireann said Mr Smullen’s direct supervisor, who was also the subject of disciplinary action arising from the audit, had approved the invoices.
Mr Smullen claimed that in preparation for a ministerial visit, he used his discretion to send material from the site to the Point and from there to the tip.
The tribunal said that under cross-examination, Mr Smullen conceded that, contrary to his direct evidence, he had nominated which contractors were to be used for particular operations at the site.
The tribunal said yesterday it was reasonable for Iarnród Éireann to conclude from the extensive audit that there was “a serious discrepancy” between the amount of material removed from the site and what was invoiced for by the contractor. It also said it was reasonable for the company to conclude that Mr Smullen was involved in this discrepancy and his dismissal for misconduct was not unfair.