The Supreme Court has ruled that Barry McKelvey was not entitled to have a solicitor and barrister represent him at an Iarnród Éireann disciplinary hearing concerning alleged misuse of company fuel cards. Under the agreed procedure, he could be assisted by a fellow employee or represented by a trade union official.
The judgment, delivered by Mr Justice Peter Charleton on November 11, 2019, addressed Mr McKelvey’s appeal over legal representation at the hearing. It did not decide whether he misused company property. The judgment says those matters remained for the disciplinary process to determine.
The company’s allegations concerned fuel purchases from 2014 to 2016, including a claimed shift from petrol to diesel, purchases said to be inconsistent with work travel, and transactions allegedly involving amounts exceeding the capacity of Mr McKelvey’s car. The judgment also records explanations he gave, including that another person used the card, that it had been left at the depot, or that fuel was stored in jerry cans for legitimate purposes. These were allegations and explanations, not findings by the Supreme Court.
The Court said the employment contract and agreed procedures were the starting point. The procedure incorporated the Industrial Relations Act 1990 code of practice and expressly limited representation to a colleague or registered trade union official, excluding other people or bodies unconnected with the company.
Mr Justice Charleton said fair procedures required that allegations be put to the employee, that he have an opportunity to respond, and that the matter be impartially determined. Those requirements did not generally import the structures of a criminal trial, including legal representation and cross-examination, into workplace disciplinary hearings. He also noted that public-law principles can apply to a publicly supported national transport company, but found no basis in this case for requiring lawyers under the contract or public law.
The judgment’s result was that Mr McKelvey could have a fellow employee assist him or a trade union official represent him, but no other outside person could represent him at the disciplinary hearing. The Court did not determine the underlying allegations or the eventual outcome of the disciplinary process.