Suspension of CIÉ employee remains in place after court finding

Interesting details available in a finding made by the High Court last week.

KEENAN – v – IARNRÓD ÉIREANN

Mr John Keenan is the plaintiff, he has taken a case against CIÉ/Iaranrod Eireann (hereafter referred to as CIÉ), at present he remains suspended with pay. He is a long standing Labour member, friend of Emmet Stagg and is being represented by Alex White. In the above case he sought “interlocutory injunctions directing Iarnród Éireann to allow the plaintiff to perform his duties… without interference; and restraining the defendant from taking any steps to remove him from his position”. In short, he asked the court to tell CIÉ to lift the suspension with immediate effect.

Mr Keenan was head of human resources when the incidents which give context to the judgement are alleged to have taken place. It should be noted that this judgement has not considered the allegations made by either side in the case, only whether or not the suspension should be lifted.

In October 2007 Mr Keenan was asked by CIÉ’s CEO, Dr John Lynch, to compile a report for the company’s Audit Committee. The report set out the progress made in respect of disciplinary charges issued in the case of an Iarnród Éireann employee, one of the subjects of the then on-going Baker Tilly investigation.

In the last sentence of his report Mr Keenan stated that the losses expected to be detailed by Baker Tilly would “be seven or eight digit sum”. This, he says, triggered “a very adverse reaction” from some in senior management.

[Mr Keenan] says that Dr. Lynch and Mr. Paul Kiely, the chairman of the Audit Committee believed that this aspect of the report jeopardised their positions and that he was told that he was stupid and should have known better than to suggest such high losses in writing to a Board sub-committee.

Mr Keenan continued directing the Cost Audit committee but says in December 2007 there was a direction given that no minutes be kept of meetings of a “steering group” on these matters and that nothing should be kept in writing.

He claimed to the court that at one point he told other members  of CIÉ senior management that Baker Tilly estimated losses could have been 12% of the CIÉ’s annual spend. He said the Chief Executive, Dr Lynch, argued that this estimate was outside Baker Tilly’s terms of reference and wanted it removed. Mr Keenan attempted to argue the relevance of the figure but, he says, Dr Lynch was unmoved. According to Mr Keenan the figure was then reduced to €2.5 million. That was around September of last year.

When published the Baker Tilly Report, as covered in some depth on this blog, detailed €2.6m in quantifiable losses, with a note that the team was “confident further unidentified losses exist within the company”. At the time Shane Ross estimated the true extent of the losses to be €9m.

It’s important, and I again wish to note, that none of the allegations made by either side are found correct or incorrect by the judgement about which I write in this post. They will be considered in a later case.

Mr Keenan also claims that on November 11 2009 the CEO, Dr Lynch, and Richard Fearns, the chief financial officer, relieved him of responsibility for the Cost Audit Unit. He says they did so as they wanted him “off the pitch”. Mr Fearns categorically denies this to be the case and says there was legitimate reason for the change. Mr Fearns believed the Audit Unit would be better handled by the finance section of CIÉ, not Human Resources, of which Keenan was in charge, as it was covering issues of financial irregularities.

It is accepted by both parties that there was considerable tensions between the two at this point.

On December 3rd Keenan was suspended from CIÉ for dereliction of duty. The reason given related to separate case which is now under judicial review in the Equality Tribunal.

The Equality Officer for that case had delivered findings on November 13th which were “very much averse to Iaranród Eireann”. They stated a female employee in the company had been harassed on gender grounds. There were clear implications made which could have damaged the reputations of both Mr Keenan and Mr Fearns.

Mr. Keenan says that having received it personally on 20th November 2009 (a Friday), he took the determination home with him and returned to work on the following Monday, 23rd November. He says that he then took a number of steps in relation to the determination, involving meeting with the Iarnród Éireann solicitor who had dealt with the matter (with regard to an appeal) and also instructed that counsel be briefed. The plaintiff says that he planned to brief Mr. Fearns on this issue at a meeting arranged for 2nd December, 2009. A full meeting however did not proceed as planned.

Mr Fearns contends Mr Keenan had ample opportunity to inform him of the findings and that by not ensuring he did so he was in dereliction of duty. He said due to Mr Keenan’s inaction there was a possibility that the company would be the subject of bad publicity for which it would be unprepared. Mr Keenan states this not to be the case, saying that the details of the cases are not made public for a month after the Equality Tribunal makes its findings.

Mr. Fearn deposes that he informed the plaintiff that he had a crisis of confidence in him as a H.R. Director as he had failed to tell him about this decision and that he should have known what a big issue this would be for the company. He says that he directed the plaintiff to stand aside from his duties with immediate effect, to go home and not to return to work until further notice. He was to continue to be paid his full salary. He was to collect his personal belongings and to hand him the keys of his office.

That was on December 3. Mr Keenan claims that the decision was disproportionate. He implies that the suspension was an attempt to silence him and that the CIÉ pair have been seeking to suppress information and acting in bad faith in dereliction of their duty to investigate alleged fraud.

However, after the meeting with Mr Fearns, Mr Keenan didn’t go home immediately. He returned to his office and made a number of phone calls. Mr Fearns claimed Mr Keenan indicated that he would return to work the following day despite being told not to. Mr Fearns then decided to seal Mr Keenan’s office, close his access to the internal email system and cut off his internet facilities. Security staff were later told – though Mr Fearns says, not by him – to ensure Mr Keenan didn’t return to CIÉ grounds. I’ve been informed that this included the posting of Wanted-style posters around CIÉ facilities.

The judgement says these decisions were “quite radical”.

The CIÉ representatives say following the December 3 incident Mr Keenan contacted employees who had been reporting to him and told them to access email correspondence and make copies. Mr Keenan said this was not “wrong” and that it was part of his duties. They say he procured access to the email account of the personal assistant of the Chief Medical Officer, Dr Declan Whelan, and that he may have authorised access to employee’s bank accounts. Dr Whelan accessing his assistant’s email account was a breach of trust. Furthermore, the defendent (CIÉ) claim Mr Keenan authorised the placement of a tracking device on an employee’s car. Mr Fearns called for an investigation in the matters and said the suspension should remain in place until complete.

Judge John Mac Menamin found that the suspension should remain in place. He didn’t find against Mr Keenan however. He said that allowing him to return to work would be wholly impractical as the level of trust between the the top brass in CIÉ and Mr Keenan had disintegrated completely.

The allegations which gave context to the case will be assessed at a later date.