Prison guard challenges sacking for going AWOL

A prison officer who went AWOL to fight in the Ukrainian Foreign Legion was sacked after a senior official saw him give a TV interview from his hospital bed when he was severely wounded in action.

Brian Meagher "went [off] his own back for his own principles" to the front line in Ukraine and suffered "horrendous, life-threatening wounds" when a landmine exploded during an ambush on 5 September 2022, his barrister told the Workplace Relations Commission.

He has lodged a complaint under the Unfair Dismissals Act 1977 against the Irish Prison Service after being dismissed the following spring on the basis that he had absented himself without permission and broke the terms of his employment.

The tribunal heard that the prison service continued to pay Mr Meagher for several months after rumours circulating that he had gone off to war had reached the Prison Service's HR directorate - Mr Meagher’s lawyer explaining that his client had an "unofficial" arrangement with a colleague to cover his shifts for the duration.

Patricia Kelleher, who was then the assistant governor at Mountjoy with responsibility for human resources, said she had been told "towards the end of June" 2022 by a supervisor of Mr Meagher’s that the complainant "hadn’t reported for duty any day" since the start of the month.

Efforts by her office to reach Mr Meagher by phone got no answer, she said. The "rumour" among prison staff at that time was that he had gone to fight in Ukraine, Ms Kelleher said, which she reported in a phone call to the Prison Service’s HR directorate.

Ms Kelleher saw Mr Meagher’s appearance on an episode of RTÉ’s Prime Time in mid-September 2022, speaking from hospital in Ukraine, the witness said.

After that, the matter was referred to the Prison Service’s absence management office, which sent a letter on 21 September noting that Mr Meagher had failed to provide an explanation for his absence and it was "deemed to be absence without leave", the tribunal was told.

"All absences have an explanation, and if there’s none, it’s AWOL," Colette Mulvey, the official in charge of the absence management office said.

The absence management official added that because it seemed Mr Meagher was "not in a condition to fulfil" his contract of employment, the office would consider recommending that consideration be given by more senior officials to dismissal, and invited him to respond.

Ms Mulvey said by then the Prison Service had "no option but to force a response" from Mr Meagher.

On 7 October 2022, she said she prepared a submission to the prison service’s director-general stating that Mr Meagher had "gone missing" and that there was a media report the previous month stating that he "was fighting in Ukraine and received injuries".

"We’ve been paying this man from June to September. He hasn’t been at work; we’re recommending he be dismissed," Ms Mulvey said.

"We can’t have a situation whereby people just don’t turn up - we tried to give every opportunity to Mr Meagher," she said - adding later that Mountjoy Prison, where Mr Meagher had worked, was in "crisis mode" at the time of the absence, with prisoners sleeping on mattresses on the floor.

She said it was "disingenuous" to suggest other prison officers were covering Mr Meagher’s shifts.

She said that during this process Mr Meagher "started providing medical certification, but we were dealing with his absence being unauthorised".

"It was tried to be turned retrospectively into a sick leave absence, but his absence was already unauthorised for three months before that," she said.

The case was referred to the Prison Service director-general and then to the secretary-general of the Department of Justice, who ultimately decided to dismiss Mr Meagher in February 2023, the witness said.

Peter Leonard BL, for the State, said the Prison Service was "a very large-minded organisation" and that explanations would always be considered.

"In the abstract, if someone looks at this, they might take a very positive view of someone taking part [in the Ukraine war]. In our case, we have to manage the prisons of Ireland. There’s a staff crisis in the prison service. If someone wants to leave, or take a career break… there are processes and procedures," he said.

The prison service was "under pressure staff-wise" and could not have the position where a prison officer "abandons" work. He submitted that Mr Meagher seemed to have been in "a contractual relationship with a military organisation to take part in the war".

Brian Carroll BL, appearing for Mr Meagher, said his client "went to Ukraine to fight with the foreign legion" and "went there without any remuneration… went on his own back for his own principles".

He said there was an "unofficial" system of shift swaps among prison officers and that Mr Meagher "took it upon himself" to make arrangements to "manage his shift while he was away". "You could call it naïve because ofhis reliance on this system in the Irish Prison Service," he added.

He said his client’s unit was ambushed on 5 September 2024 and left him suffering "horrendous, life-threatening injuries" - a situation compounded when his client contracted a "superbug" during a stay in Cork University Hospital.

Mr Meagher addressed the hearing just once to confirm that he was repatriated to Ireland at the end of October 2022. He is expected to give evidence at a later stage in the proceedings, as the State bears the burden of proving his dismissal was fair in the first instance and must present its evidence first.

Adjudicator Brian Dalton adjourned the case to a future date, to be set in due course by the WRC’s schedulers.