Mountjoy prison officer unfairly dismissed after going AWOL to fight in Ukraine

Gordon Deegan

The Irish Prison Service (IPS) has been ordered to allow a ‘naive’ but courageous prison officer, who went AWOL for months to fight in the Ukrainian Foreign Legion, to return to work subject to a six month probationary period.

This follows Workplace Relations Commission (WRC) Adjudicator, Brian Dalton, finding that the IPS unfairly dismissed Mountjoy prison officer Brian Meagher in May 2023.

In his findings, Mr Dalton said that the IPS has not made out its case adequately to justify Mr Meagher’s dismissal and the circumstances of the case are the opposite of most misconduct cases “and in fact demonstrate courage and character to help others”.

He said: “I find that reengagement to be the most appropriate remedy."

Mr Dalton has ordered that Mr Meagher is re-engaged by the IPS within six weeks of the date of the decision and is subject to a six months’ probation period.

Mr Dalton said that Mr Meagher’s absence to be treated as leave of absence for the calculation of the appropriate incremental salary point and staff service benefits on the date of re-engagement.

Mr Meagher told the WRC hearing, held over two days, that his daughter is Ukrainian and, as a past member of the Defence Forces, he felt morally obligated to provide support.

He said he never intended to abandon his post and had arranged cover with a colleague who he paid to cover his shifts.

Mr Meagher accepted that he should be sanctioned but argued that the sanction of dismissal is disproportionate based on the unique circumstances of the case.

He said he left Ireland for Ukraine around May 27th or 28th, 2022 – explaining that he wanted to "go and help" – adding that his three-year-old daughter was living less than 20km from the Ukrainian border at the time.

Mr Meagher was sacked by the IPS for abandoning his post after a senior IPS official saw him give a September 2022 RTÉ Prime Time interview from his hospital bed when he was severely wounded in action by a landmine, having left for the Ukraine in May of that year.

At a WRC hearing, Mr Meagher said he arranged cover in Mountjoy prison with a colleague through an unofficial "swap system" and hoped to go to Ukraine and come back "with no-one knowing”.

In his findings, Mr Dalton found that Mr Meagher “did not intend to abandon his post”.

He said: “The Officer put in place cover for his absence. The reason why this system failed arose because he was not allowed to communicate while on combat duty. That was further compromised when he suffered a serious and life-threatening injury.”

Mr Dalton found that the evidence of Mr Meagher that an unofficial system, where shifts are covered by colleagues outside of the official approval process to be credible.

Ordering the IPS to allow Mr Meagher to return to his duties after a probationary period, Mr Dalton said that there is a shortage of trained prison officers.

He said: “There is no question about the officer’s character and honesty. He previously served in the Defence forces. However, he does need to prove to his employer that he is reliable and has learnt from a set of circumstances that is highly unlikely to occur again”.

Concluding that the decision to dismiss was unfair and that it lacked procedural fairness, Mr Dalton said that there was no formal hearing where Mr Meagher could have been competently represented and could explain why he left his post and why he thought the cover he put in place would be adequate.

Mr Dalton said that Mr Meagher was not provided an opportunity to challenge the Human Resources Officer's findings that he abandoned his post and to question the officials.

Mr Dalton said that there is no adequate record of Mr Meagher’s account to arrange back cover or any mitigating factors that should be considered when considering what sanction is proportionate based on considering all the circumstances of this case.

He said that the written exchange of correspondence between the parties, is not a standard of fair procedures appropriate for dealing with this case and does not constitute fair procedures.

Mr Dalton also found that there was no serious consideration evident in the IPS submissions that they seriously engaged with the explanations provided by Mr Meagher, that a fair and balanced investigation was conducted, and that the investigation was open to an alternative unofficial system where cover could be provided.

Mr Dalton ruled out an immediate re-instatement for Mr Meagher stating that it was “not a just remedy as the Officer failed to follow the correct procedures to obtain leave of absence”.

Mr Dalton stated that the facts of this case and all the circumstances tend to indicate that the requirement to apply fair procedures and have regard to all the circumstances relevant in this case did not happen.

Mr Dalton listed the circumstances as the unofficial cover system; the paid cover put in place by the officer; Mr Meagher’ intention that his assistance would be short term for the Ukraine effort; the fact that his daughter is Ukrainian, his previous service in the Defence Forces; his naivety, his life-threatening injuries and inability to engage with the Service and reply to their correspondence and the difficulty in obtaining Union Official or competent workplace representation.

In the case, Mr Meagher was represented by Thomas Loomes & Co. Solicitors and Brian Carroll BL while the IPS was represented by Peter Leonard BL, instructed by solicitor, Jennifer Murray at the Chief State Solicitor’s Office.