€250k for HSE official dismissed over fuel card
However, Judge Alan Mahon, in the Circuit Civil Court, yesterday reduced the award by 20% to €200,000 because of 49-year-old McClintock’s pre-dismissal conduct in using the fuel card for his own use.
The judge told the Derry-city based Mr McClintock the loss he suffered since his dismissal almost four years ago was significant and certainly greater than the maximum €250,000 he could award under current employment legislation.
He told Frank Callanan SC, for Mr McClintock, that his client’s inappropriate use of the fuel card would have warranted and deserved a penalty of some nature by the HSE.
Judge Mahon had heard evidence over two weeks in a challenge by Mr McClintock against an Employment Appeals Tribunal finding that, although constructively dismissed, he was not deserving of any compensation because of “pre-dismissal events”.
John O’Donnell SC, for the HSE, had counter appealed and asked the court to overturn the tribunal’s finding of constructive dismissal.
Judge Mahon found that when Mr McClintock attended a meeting in Mar 2012 he did not know the main focus would relate to his use of the fuel card or that the HSE had obtained CCTV footage identifying him using it at a filling station in Co Donegal.
A report had found that Mr McClintock had misappropriated €9,300 and “only admitted the truth” when evidence emerged. He had been led to believe, before volunteering his resignation, that the matter would be referred to the gardaí.
Judge Mahon said in his reserved judgment:
Mr McClintock’s use of the fuel card to refuel his private car was inappropriate and constituted an unauthorised use;
That he would probably have faced suspension or indeed dismissal in an internal inquiry;
Mr McClintock had been told the matter would be referred to the gardaí;
That despite having acknowledged “an error of judgement” and “an undoubted mistake,” he had not considered resignation before this;
Mr McClintock had convinced himself that the alternative to resigning would end in even greater personal disaster;
That his resignation had been prompted by fear of suspension, dismissal without a reference, and threat of Garda intervention;
He had been misinformed that the file had already been sent to gardaí. This did not happen for another 10 days.
The judge said there had been much media coverage about Mr McClintock. Somebody within the HSE had a prop-ensity to leak information about him and it was always going to be the case that the full story, together with all the innuendo associated with it, was likely to quickly emerge in media reports.
The judge believed Mr McClintock’s anxiety to resign was a consequence of his discovery at an early stage that he had been found guilty of very serious misconduct without being afforded the opportunity to defend himself.
“I am satisfied Mr McClintock’s resignation was not voluntary and he was constructively dismissed,” he said.
Following the judgment Mr McClintock said: “I feel vindicated now. It has been a long, hard four years for myself and my family.”
