ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00023000
A Waste Management Company
Harrison O'Dowd Solicitors
Complaint Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977
Date of Adjudication Hearing: 03/10/2019
Workplace Relations Commission Adjudication Officer: Ewa Sobanska
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complains.
The Complainant commenced his employment with the Respondent on 24th February 2017.
He referred three identical claims of constructive dismissal to the Director General of the WRC on 24th June 2019. Complaints bearing reference numbers CA-00029259-001 and CA-00029260-001 have been merged with CA-00029257 under the Adjudication File Reference Number ADJ-00023000.
On 26th June 2019, the Complainant referred an additional claim of unfair dismissal bearing reference number CA-00029324-001. On 2nd July 2019, the Complainant wrote to the WRC confirming that his complaint bearing reference number CA- 00029324 is the correct one. At the adjudication hearing, the Complainant confirmed that his claim of constructive dismissal was entered in error and is withdrawn.
At the adjudication hearing the parties confirmed the correct name of the Respondent.
Supplemental submissions were received from the parties post the adjudication hearing, with the latest communication from the Complainant received on 11th November 2019.
Summary of Respondent’s Case:
The Respondent submits as follows.
The Complainant was hired on the 24th February 2017 as a Helper. He worked on different routes during his time with the Respondent and worked as a spare helper at times. During his employment the Complainant displayed no problem with time and attendance but verbally expressed that he did not get on with some colleagues and requested often to be changed from scheduled routes assigned to him. On the 20th August 2018, General Manager, GF met with the Complainant about this pattern of requests to be changed or to change the driver on his routes. GF informed the Complainant that too much time was being spent on his relationship issues with his colleagues. The Company were not in the position to move drivers to facilitate him and that he needed to get on with his work as scheduled.
On the 27th March 2019, Customer Services Administrator, RB received a call from a customer,
Mr. AB. Mr. AB informed RB that he had paid a deposit on the 25th March 2019 for a skip hire to the Respondent’s employee at his address but that he had not received any communication from the company since this date.
RB communicated this information to Transport Manager, JG and gave him Mr AB’s contact details. The Transport Manager then ascertained what route the address was assigned to, the vehicle registration and the employees working this route on the 25th March 2019. He then proceeded to make contact with Mr. AB and arranged to meet with him on the 29th March 2019.
JG met with Mr. AB on the 29th March 2019 and was informed that it was an employee working off the back of the truck that interacted with him. The employee told Mr. AB that he would organise a skip hire for him but that he would come back to him later in the day to sort it out. The employee returned to Mr. AB at approximately 16:00 in his own vehicle and told Mr. AB that the skip hire would be €160.00. Mr. AB said that he would give a deposit of €60.00 which was recorded on the docket, but as he had no change, he actually gave a deposit of €70.00. JG took a copy of the receipt which appeared to be signed by a ‘Mark Spencer’. JG arranged the skip hire for Mr. AB as originally requested. On the 1st April 2019, JG communicated this information back to GF, General Manager at the time, who advised JG to identify the employee with Mr. AB. JG then showed Mr. AB approximately 5 photos of different employees, one of the Complainant, one of the other helper working with the Complainant on the same day (RW) and the remaining of employees not working this route. Mr. AB identified the Complainant as the employee that he engaged with. HR Manager, MR was then directed to take a statement from Mr. AB which she did on the 10th April 2019. Mr. AB declined to sign the statement as he feared that there could be retribution for his complaint. Mr. AB informed the HR Manager that he was living on his own at the age of 82 and didn’t want to be subject to any consequences for lodging the complaint.
On the 12th April 2019 GF met with the Complainant to explain the allegations made about him. The Complainant denied any interaction with Mr. AB. JG then arranged to meet with Mr. AB on the 23rd April and drove him to the truck and employee in question. Mr. AB positively identified the Complainant as the employee that took the deposit of €70.00 on the 25th March 2019.
Following this positive identification, JG and MR met with the Complainant to inform him that they had been appointed to conduct an investigation following the allegation received by Mr. AB. The Complainant denied any interaction with Mr. AB. JG and MR informed the Complainant that he would be suspended with pay pending investigation, that he was to go home and that they would meet him the following day to conduct an investigative meeting.
On the 24th April 2019, the Complainant met with JG and MR and communicated that he did in fact speak with Mr. AB on the 25th March 2019. The Complainant said that after being notified of the investigation he went home and remembered that he did have a conversation with Mr. AB. The Complainant said that Mr. AB had asked him if he could throw some timber in the back of the truck, the Complainant told him he couldn’t and that he would need to phone the office to sort it out. The Complainant said that Mr. AB had the wrong person and that he possibly identified him as a way of revenge for not letting him put the timber in the back of the truck.
RW, the other helper gave a statement, he said that when he asked the Complainant what he had been discussing with the customer, the Complainant had informed him that the customer had asked to put timber in the back of the truck but that the Complainant had said no to him.
Mr. AB had positively identified the Complainant on two occasions. The Complainant initially denied communication with Mr. AB and then changed his version of events on the 24th April 2019. Mr. AB did not identify another member of staff and the investigative panel findings were that it needed further investigation under the Disciplinary Procedure. On the 26th April 2019 the Complainant was sent a letter inviting him to a disciplinary hearing on the 30th April 2019 along with the completed investigative report.
JC, Marketing and Sales Director, was appointed to conduct the disciplinary hearing. The Complainant did not bring a witness, the option to bring one was given to him in the invitation and at the opening of the meeting. He declined. JC asked the Complainant to confirm if he had a chance to review the report to which he responded that he had. The Complainant denied the allegation that he had returned to Mr. AB’s house to take the deposit for skip hire. During this meeting JC called JG to confirm some details in the Complainant’s presence. JG confirmed he had spoken and met with Mr. AB about the deposit he alleged he had given to the Respondent’s employee and that he worked towards resolving this issue with the customer. JG confirmed that he met with Mr. AB twice about identifying the Complainant, one by photo, one by driving out Mr. AB to the truck the Complainant was assigned to on the 23rd April 2019. JG also met with Mr. AB on a couple of occasions to organise his timber collection.
When JG left the meeting, JC summarised the information discussed and confirmed with the Complainant it was correct. The Complainant then produced a docket/receipt booklet which he claimed he found in the vicinity of a named supermarket on Sunday the 28th April 2019. This booklet was the same booklet that the receipt Mr. AB received came from. JC retained the booklet as it was company property and asked the Complainant if he had anything further to add, he said no. He then asked the Complainant if he agreed the process had been dealt with fairly to which to responded that he did. JC agreed to meet with the Complainant the following day, 1st May 2019, at 11:00am.
JC delivered the decision to dismiss the Complainant from his employment as it was found his actions constituted Gross Misconduct. The Complainant asked why this decision was made and JC reconfirmed that he found his action constituted Gross Misconduct and as a result he would no longer be employed by the Respondent. JC reminded the Complainant that he had confirmed the previous day that he found the process to be fair. JC communicated that the Complainant had the option to appeal this decision to the General Manager, PT. JC also informed the Complainant that Mr. AB’s bins had gone missing overnight and that this would be reported by Mr. AB to the Gardai. The Complainant said he would go and make direct contact with Mr. AB now that he was no longer hired by the Respondent. JC advised against this and reminded him of his right to appeal the decision. The Complainant received his last payment the week ending 3rd May 2019.
The Complainant submitted a letter of appeal on the 2nd May 2019 and PT, General Manager, responded on the same day to invite him to attend the appeal hearing on the 10th May 2019. In the meantime, on 7th May, the Complainant was sent the copies of the meeting notes from the 30th April and the 1st May.
In the meeting on the 10th May, the Complainant said the allegations were fake and PT asked the Complainant how he managed to have the booklet that was the source of Mr. AB’s receipt. The Complainant responded that the handwriting in the booklet was not the same as his and that he had found the booklet in a named location. When PT asked why he denied speaking with Mr. AB initially the Complainant said it was because his English wasn’t very good, but his explanation on the 24th April for initially denying the interaction with Mr. AB was that he had forgotten about it.
The Complainant was invited to the Appeal Outcome Hearing on the 29th May for the 6th June 2019. On the 6th June 2019 PT informed the Complainant that he had requested JG and MR to confirm some information with Mr. AB. In the booklet the Complainant had submitted, Mr AB’s name appeared on another docket, number 20259. PT directed JG and MR to ask Mr. AB about this new evidence. Mr. AB said that he had never seen docket 20259. Mr. AB confirmed his signature was the one next to Authorised Signature on docket 20254. Mr. AB confirmed his original statement was correct and no changes or amendments applied.
No dockets in the booklet corresponded with payments received in 2019. PT decided to uphold the Disciplinary Hearing decision based on the following:
· The Complainant was working the specific route on the 25th March 2019.
· The Complainant initially denied any communication with Mr. AB and then changed this account in the investigation meeting, confirming he had spoken with Mr. AB.
· The Complainant was identified on two occasions by Mr. AB as the employee who took €70.00.
· The Complainant was able to produce the booklet the docket deposit receipt came from on the day of the disciplinary hearing.
The Respondent submits that the Complainant’s actions constitute gross misconduct. The Respondent’s Disciplinary Policy notes that in the cases of gross misconduct the Respondent may summarily dismiss an employee and the examples of gross misconduct include:
· Falsification of company records, including personnel related records, time sheets, stock records, medical certificates, expenses, etc;
· Dishonesty, theft or fraud, including abuse of any of the company benefit schemes;
· Breach of trust.
The Respondent quoted “Redmond on Dismissal Law”:
“it is not for the employer, nor the WRC, to establish the guilt or innocence of the employee. The WRC will look to see whether there are reasonable grounds to sustain that the employer’s suspicion that an employee has acted dishonestly.”
In that regard, the Respondent cited Looney and Co Ltd v Looney UD843/1984.
The Respondent submits that based on substantive matters and the procedures applied the Respondent has met the test of reasonable suspicion and consequently the decision to dismiss in the circumstances and on these facts was fair.
The Respondent highlighted the inconsistencies in the Complainant’s case, which came to light in various meetings held. The Respondent also highlighted the fact that the docket book “magically appeared” at the disciplinary hearing, and that it directly links the Complainant with the receipt in question.
The Respondent noted that the Complainant in his WRC communication of 26th July 2019 stated that he could not have called to Mr. AB at 4pm as he worked until 5.30pm. The Respondent argued that this was never raised during the disciplinary process. The Respondent checked its clock in record and it shows that the Complainant clocked out at 3.30pm on the day in question. The Respondent noted that the driver and the second helper would have to finish up the work and ordinarily clock out some 30-40 minutes later. After the hearing the Respondent provided copies of clock in records for both of these employees showing clocking out times at 16:20 and 16:08.
Furthermore, the Respondent argued that Mr AB said that the employee’s in question car was silver grey in colour, not new and the Complainant’s car is silver grey in colour, some 2 years old.
The Complainant’s attempt to suggest an improper motive on part of Mr. AB stretches the Complainant’s credibility.
The Respondent confirmed to the Adjudication Officer that the driver of the truck was not interviewed as he had no interaction with Mr. AB or the Complainant. RW, who would be in the back of the truck was interviewed. The Respondent noted that the Complainant did not mention to RW that Mr. AB offered him money in return for taking the timber.
In respect of the docket book, the Respondent confirmed that since 2017 the Respondent no longer uses the manual dockets.
Evidence of JG, Transport Manager
JG addressed the Complainant’s allegations in respect of the clock in system. He noted that, if there was any discrepancy between the clock in record and a payment made to the Complainant, the Complainant would have raised it with him and it would be rectified in the next payroll. This would have been a very rare occurrence.
Summary of Complainant’s Case:
The Complainant claims that he was unfairly dismissed.
The Complainant, with the assistance of interpreter, argued as follows:
As he is non-native English speaker, at the time he did not understand whether the question he was asked was did he meet Mr. AB during or after work. That’s why he said that he did not speak to Mr. AB. He then thought about it and remembered that, in fact, he did speak to Mr. AB.
He questioned why Mr. AB said that he was waiting for the employees to arrange the skip. He claims that there is phone number on each bin and Mr. AB could have made a phone call.
The Complainant claims that Mr. AB said that it was around 2pm that the truck was there and, in the Complainant’s view it would be impossible as this route is served around 12pm.
He argued that he always signed his dockets with block letters and all his books have been given back to the manager. He claims that it wasn’t his handwriting on the docket.
The Complainant submits that Mr. AB asked him to take some timber and a brown bin. The Complainant told him that he could not do that and advised to ring the office. The Complainant claims that Mr. AB stopped him again and asked if he would take it for €20. The Complainant refused. The Complainant argues that Mr. AB’s statement that he returned to his house at 4pm and gave him the docket and took money is incorrect. The Complainant claims that Mr. AB “set him up”.
The Complainant says that the clock-in records submitted by the Respondent are incorrect as all clock outs are at various time e.g. 17:03, 18:54, 18:51 but the one on the day in question is exactly at 15:30. He suggests that the clock in system was tampered with. Even if the records were correct, the Complainant claims that it would be impossible to travel to Mr. AB’s house in 15 minutes. The Complainant claims that he noted the Respondent tampering with the clock in system some two years ago but, despite being aware of the grievance procedure never raised a grievance in that regard. He claimed that he could have worked up to 2-3 hours overtime every week he wasn’t paid for, but he had no time to deal with it.
The Complainant further argues that Mr. AB said in his statement that he met JG only once, but JG said that he met Mr. AB a few times.
The Complainant argues that the Respondent was not permitted to show his photo to a third party and that only his photo was shown to Mr. AB. The Complainant claims that every customer can say that an employee took money and the employee in question would lose their job. He says that he would not risk losing his job over €60. The Complainant claims that he had an opportunity to receive €400 fortnightly from customers cash in hand if he was dishonest.
The Complainant outlined some difficulties he experienced with a co-worker. He claims that this particular person said that he would do everything to get rid of the Complainant.
In relation to the docket book, the Complainant submits that he was shopping with his family in a supermarket when he needed to use the toilet. Rather than look for a toilet he decided to go “behind the wall” of the shop. He kicked an empty beer can on the ground and the docket book was there. He claims that the docket book could have been planted. He argues that if he was dishonest, he would use the book but he never took anything from the company. He claims that the main proof of his innocence is that it is not his handwriting in the book as he always uses block letters.
In addition, the Complainant says that the letter of 26th April 2019 was hand-delivered to his home address. He could have thrown it away but he is an honest person and showed up at the meeting on 30th April 2019, as requested.
In respect of the disciplinary process, the Complainant claims that the decision to dismiss was hurried. The disciplinary meeting took only two hours, he doesn’t believe that it was sufficient for him to explain himself with his level of English. The meeting finished at 12pm and on the next morning he was informed about the dismissal. He claims that no lesser sanction was considered. He does not believe that he was treated fairly.
The Complainant referred to meeting Mr. AB post-dismissal in a bank. He said he helped him as Mr. AB had sight and hearing problems, they had a chat but clearly Mr. AB did not recognise him. He claims that during the disciplinary process it was suggested to Mr. AB that he was the person who took the money.
In cross-examination, it was put to the Complainant that throughout the process he never raised he matter of clock in system being incorrect and never told the Respondent that he could not have met Mr. AB as he worked until 5.30pm. This was not mentioned until the WRC submission. It was also put to the Complainant that it would be easy to travel the distance from the Respondent’s location to Mr. AB’s house in 20 minutes.
The Respondent showed the Complainant various documents written by him and noted that on some occasions the Complainant used capital / block letter on others he used script.
Findings and Conclusions:
The issue before me is not whether the Complainant had actually accepted the cash from Mr. AB with a promise to arrange a skip for him against the Respondent’s rules and procedures. The issue is whether or not in all the circumstances the Respondent was justified in dismissing the Complainant having regard to his conduct, his explanation for his conduct and the surrounding facts established by the Respondent subsequent to its becoming aware on 27th March 2019 that a customer of the Respondent paid to an employee of the Respondent a sum of cash in return for a skip, which was never delivered.
The relevant law
The Unfair Dismissal Act, 1997 stipulates that:Section 6(1)
”Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.”
“Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following: ...
(b) the conduct of the employee,…”
Section 6(6) imposes the burden of proof on the employer to show that the dismissal was fair and Section 6(7) provides for an Adjudication Officer to have regard to
“(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and (b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14 (1) of this Act (to provide written reasons when requested) or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7 (2) of this Act.”
The combined effect of the above sections of the Act require me to consider whether or not the Respondent's decision to dismiss the Complainant, on the grounds stated, was reasonable in the circumstances. It is not the function of the Adjudicator to establish the guilt or innocence of the employee. It is the function of the Adjudicator to assess what a reasonable employer, in the Respondent's position and circumstances, might have done. This is the standard the Respondent’s actions must be judged against. The Act places the burden of proof on the employer to demonstrate that the dismissal was fair. As part of exercising this burden of proof, the Respondent needs to show that fair process and procedures were applied when conducting the disciplinary process.
In O'Riordan v Great Southern Hotels [UD1469-2003], the EAT stated as follows:
"In cases of gross misconduct the function of the Tribunal is not to determine the innocence or guilt of the accused of wrong doing. The test for the Tribunal in such cases is whether the Respondent had a genuine base to believe, on reasonable grounds, arising from a fair investigation that the employee was guilty of the alleged wrongdoing."
In The Governor and the Company of Bank of Ireland -v- James Reilly (2015) IEHC 241, Mr. Justice Noonan elaborated on what was required by Section 6 of the Unfair Dismissals Acts as follows:
“It is thus clear that the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s. 6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the employer's conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned - see Royal Bank of Scotland v. Lindsay UKEAT/0506/09/DM.”
It is also well established that an employee has a contractual, constitutional and statutory entitlement to fair procedures. (See Re: Haughey (1971) IR 217). In particular, S.I. No. 146/2000 - Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures) provides that employers should have written procedures for dealing with disciplinary issues reflecting the varying circumstances and complying with the general principles of natural justice and fair procedures.
I must therefore consider both the fairness of the procedures adopted and the substantive issues leading to the dismissal.
Dismissal as a fact is not in dispute and so therefore it is for the Respondent to establish that in the circumstances of this case the dismissal was fair. The Respondent contends that the Complainant was dismissed on the grounds of gross misconduct.
In considering the fairness of the Respondent’s decision to dismiss the Complainant, a number of factors need to be considered. Firstly, it needs to be established whether or not there were sufficient grounds for the Respondent to initiate disciplinary action against the Complainant. Secondly, any investigation/disciplinary process applied must be in accordance with the requirements of fair procedures, due process and natural justice. Finally, consideration must be given to whether the sanction emanating from such a process falls within what might be considered a range of reasonable responses by the employer.
The Respondent received a call on 27th March 2019 from a customer complaining about the matter of a deposit collected by an employee of the Respondent with a promise to organise a skip hire. The Transport Manager met with the customer in question on 29th March 2019 and on 4th April 2019 when the customer identified the picture of the Complainant as the employee who he engaged with. I note that the Respondent showed photographs of some five employees to the customer, including two employees, ‘helpers’ servicing the route in question. The customer subsequently identified the Complainant in person while observing him at work.
I am satisfied that sufficient grounds existed for the Respondent to arrange an investigation meeting to establish whether the Complainant has a case to answer. The Complainant was first met and informed about the allegations against him and that an investigation meeting would be carried out. He was then invited to the investigation meeting. It is unclear whether or not the Complainant was informed of the right to be accompanied at this stage of the process. At the investigation meeting, the Complainant explained his version of events and signed his statement. As a result, the Complainant was invited to a disciplinary meeting. The evidence shows that at his juncture the Complainant was informed of his right to be accompanied by a fellow worker and that the outcome may attract a punishment in a range up to and including dismissal.
In respect of the disciplinary process, I note that the Respondent has detailed Disciplinary Procedure in place, a copy of which the Complainant received together with his contract of employment. The document outlines clearly the details of the disciplinary code and process as well as gives examples of gross misconduct, falsification of company records, dishonesty, theft and fraud, and breach of trust being some of them.
In respect of the Complainant’s assertion that the disciplinary hearing took only 2 hours which was not sufficient given his level of English, I find that precedent has been set in this regard in EED048 Campbell Catering Ltd v Rasaq where the Labour Court held thatemployers have a positive duty to ensure that all workers fully understand the allegation of misconduct and the consequences of same and on occasion, special measures may be necessary in the case of non-Irish national workers to ensure that this obligation is fulfilled.
I find that central to providing a foreign employee and non-native English speaker with a fair procedure is the obligation for an employer to adequately cater for potential language difficulties, particularly in serious issues such as a potential dismissal. While the Respondent has failed to demonstrate that it sufficiently catered for the potential language difficulties that might have existed, I note that at no stage did the matter of the Complainant having any difficulties with his understanding of the process due to language barrier arise. I note that at the appeal hearing, the Complainant said that if a customer had a query, he spoke with him as his English was better than the other Helper. While it would be ideal to have an interpreter available to the Complainant, I find that, given that the Complainant seemed to follow the process without any inconvenience and at no stage expressed any concerns in that regard, the Respondent could not have known of any such difficulty.
I note that, throughout the process and in the WRC submission the Complainant raised a number of matters such as why was he not permitted to speak to Mr. AB and the Respondent had only taken feedback via the Transport Manager? Why did Mr. AB delay (by one day) contacting the Respondent’s office? Why was his statement not signed? Why Mr. AB’s statement did not include confirmation of a meeting with the Transport Manager on 29th March 2019? Incorrect time (2pm) of the alleged conversation given by Mr. AB, as in his view it would have to be 12pm (I note the inconsistency in the Compalinant’s submission in this regard. In the Complainant’s submission to the WRC the Complainant stated that he spoke to the customer around 2pm) etc. It appears that, in the absence of any credible explanation of the events of 25th March 2019, the Complainant concentrated on matters that aimed at discrediting Mr. AB’s statement. While it would be ideal for the Complainant to be able to meet in person with Mr. AB to ask these questions, I accept that given Mr. AB’s personal circumstances (living alone), his age and fear of retribution it could not be reasonably expected that he would have agreed to meeting the Complainant.
The Complainant was informed of the allegations against him, a full investigation meeting was conducted at which the Complainant had ample opportunity to set out his version of events. From the evidence adduced it is clear that the decision to proceed to the disciplinary stage of the process was one which a reasonable employer could reasonably have made having regard to the allegations made by Mr. AB, his positive identification of the Complainant and the discrepancies in the Complainant’s version of events. The evidence, as presented at the hearing shows that the disciplinary process which followed the investigation stage followed the Respondent’s procedure.
I accept that the Respondent’s procedures were somewhat deficient but taking all matters into account these procedures were not sufficiently unfair to undermine the fairness of the decision to dismiss.
As to whether there were substantial grounds for the Complainant’s dismissal on the ground of gross misconduct, I note that, having examined the matter the Respondent came to a conclusion that
· The Complainant was working on the route in question on 25th March 2019;
· The Complainant initially denied any communication with Mr. AB and then changed his account and confirmed an interaction about taking extra waste;
· The Complainant was identified on two occasions by Mr. AB as the employee who took cash from him;
· On the day of the disciplinary hearing, the Complainant was able to produce the booklet the docket deposit receipt came from.
The Labour Court in DHL Express (Ireland) Ltd. v M. Coughlan UDD1738 stated that established jurisprudence in relation to dismissal law in this jurisdiction takes a very restricted view of what constitutes gross misconduct justifying summary dismissal. This is evidenced, for example, by the determination of the Employment Appeals Tribunal in Lennon v Bredin M160/1978 (reproduced at page 315 of Madden and Kerr Unfair Dismissal Cases and Commentary (IBEC,1996)) wherein the Tribunal states:
‘Section 8 of the Minimum Notice and Terms of Employment Act 1973 saves an employer from liability for minimum notice where the dismissal is for misconduct. We have always held that this exemption applies only to cases of very bad behaviour of such a kind that no reasonable employer could be expected to tolerate the continuance of the relationship for a minute longer; we believe the legislature had in mind such things as violent assault or larceny or behaviour in the same sort of serious category. If the legislature had intended to exempt an employer from giving notice in such cases where the behaviour fell short of being able to fairly be called by the dirty word ‘misconduct’ we have always felt that they would have said so by adding such words (after the word misconduct) as negligence, slovenly workmanship, bad timekeeping, etc. They did not do so.’
Having considered the matter, in all the circumstances of this case, I find that the Respondent acted reasonably and that its decision to dismiss the Complainant for gross misconduct, based on the allegations made against him and the outcome of the disciplinary process, was within the range of reasonable responses of a reasonable employer.
In all the circumstances, and having regard to the foregoing, I find that the Respondent had reasonable grounds to dismiss the Complainant.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
Having considered the submissions of both parties and the evidence adduced at and post the adjudication hearing, I declare that the complaint of alleged unfair dismissal is not well founded.
Dated: 29th November 2019
Workplace Relations Commission Adjudication Officer: Ewa Sobanska
Unfair dismissal –falsification of records