ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00036287
Gerard Mc Veigh
Dunnes Stores Dunnes Stores
Barbara Anderson, Mandate Trade Union
Padraig Lyons, BL, instructed by Byrne Wallace
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973
Date of Adjudication Hearing: 26/07/2022
Workplace Relations Commission Adjudication Officer: John Harraghy
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 complaint(s) to me by the Director General, I inquired into the complaint(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s). All evidence in this case was taken on oath. Cross examination of all witnesses took place. The complainant provided a written submission with copies of letters, notes of meetings and various decisions. The respondent also provided a written submission along with a book of documents and a book of authorities. The complainant submitted a booklet of job applications post hearing.
The complainant was employed by the respondent from 22/06/2007 until his dismissal on 08/09/2021. He worked as a general assistant and at the time of his dismissal was engaged in night packing duties. He was paid €570.75 (gross), (€483.00 net) per week. The complainant was dismissed following an investigation by the respondent into the complainant’s arrest and subsequent District Court appearance where it was alleged that he committed an offence contrary to the Sexual Offences Act in a city center supermarket on 16/06/2021. The complainant believes that the incident was not work related and the respondent’s investigation was flawed.
Summary of Complainant’s Case:
The complainant was employed as a general assistant by the respondent since June 2007. His employment was uneventful until 10/07/2021. On his way into work, he was arrested by the Gardai in relation to a non-work-related incident. He returned to work the following night and was met by the Ambience Manger, Mr Milton Hoque. Mr Hoque asked the complainant about what had occurred the previous night. The complainant was not comfortable discussing the matter as it had no bearing on his employment with the respondent. The complainant was also advised by his solicitor not to discuss the matter with anyone. The complainant did confirm to Mr Hoque that he was arrested. Mr Hoque advised the complainant that he was being suspended with pay and was not given any reason why. He was contacted and asked to attend a meeting with Mr John Conway, Store Manager, on 22/07/2021. The complainant was not given any written notice of this meeting and was not informed of the specifics of any allegation in relation to this meeting. He was not advised that this was an investigation meeting. He was advised that he could bring a work colleague.
At the meeting Mr Conway asked the complainant if he had been arrested on 10/07/2021. The complainant confirmed that he was. Mr Conway then referred to a newspaper article in which the complainant was named. The complainant was asked to explain what had happened. The complainant confirmed that he was advised by his solicitor not to discuss the matter with anyone and that he was innocent and that he was going to fight the charges.
Mr Conway advised the complainant that he had to consider the matter and how it would impact on the company and that he also had to take into consideration colleagues and customers.
The complainant believed that this was a non-work-related incident and that it would not have a detrimental impact on the business or colleagues as it was only his name that was mentioned in the newspaper article. Mr Conway repeatedly asked the complainant if he wanted to provide more information, but the complainant said that he was following his solicitor’s advice. Mr Conway outlined that all the information that he had was what was reported in the media. The complainant’s suspension was confirmed.
A further meeting was held with the complainant on 26/07/2021. The complainant was asked if he wished to provide any further information on this issue. Mr Conway told the complainant that the matter was causing them a lot of concern and he would need more time to process it. He confirmed that the complainant was to remain on suspension. Mr Conway also confirmed that this was an investigation.
Following this the complainant delivered a letter to the respondent asking for reasons for his suspension and also requesting details of issues mentioned by colleagues. Mr Conway replied to this letter confirming the suspension and pending an investigation and consideration of his future employment with the respondent arising from the complainant’s arrest and charge as outlined the various newspapers. Mr Conway also confirmed that they had a duty of care to staff, customers and visitors and that this matter impacts on that. Mr Conway also confirmed that he had not decided on the matter of the complainant’s future employment was awaiting a further meeting with the complainant in order” to hear from you again in your own defence”.
The complainant was on sick leave and was unable to attend any meeting until 08/09/2021. At this meeting the complainant was advises by Mr Conway that he was considering the termination of his employment as his alleged conduct while an employee may damage the company in the eyes of the customer. The complainant was not advised of the serious nature of these meetings, and he asked if he could bring an outside trade union representation. He was told that this would not be allowed as he had a work colleague with him.
Following a break Mr Conway resumed the meeting and confirmed that he had made a decision to dismiss the complainant with immediate effect as a result of his alleged inappropriate conduct outside the workplace. This dismissal was confirmed by letter on 14/08/2021 and he was informed of his right to appeal. The appeal would be heard by Mr Thomas Worrall who is a store manager in another of the respondent’s stores. The complainant sent a letter of appeal to Mr Worrall on 07/10/2021 and he outlined a number of points of appeal. There was a delay in the complainant receiving the outcome due to a change of address. The complainant was not given an opportunity to present his appeal at a meeting. Mr Worrall upheld the decision to dismiss the complainant. Mr Worrall also confirmed that the respondent’s appeal procedure is undertaken by way of written submissions.
It was submitted on behalf of the complainant that the complainant’s suspension was unnecessary and due to the length of time he was suspended led to talk on the shop floor. The complainant’s representative made reference to the High Court case of The Governor and Company of the Bank of Ireland v James Reilly where Mr Justice Noonan listed a number of instances where suspension would normally be justified if it was necessary to prevent repetition of the conduct complained of, to prevent interference with evidence, to prevent individual at risk from such conduct or to protect the employer’s business or reputation. As the complainant was not convicted of any offence there was not detrimental impact on the company and the four instances did not apply to him and so the suspension was unnecessary and unjustified.
It was also submitted that the manner in which the complainant as invited to attend the three investigation meetings was grossly unfair and he was not informed prior to the meetings the nature and specifics of the meetings or the fact that these meetings might lead to a sanction up to and including dismissal.
It was also submitted on behalf of the complainant that as he did not realise the seriousness of the matter, he was denied the opportunity to be represented by his trade union representative. None of the complainant’s colleagues had the qualifications to represented him and this was a failure by the respondent. In the context he case of Maher v Irish Permanent  4 IR 302 found that the right to legal representation was required given the complexity of the allegations and the serious nature of the allegations:
“Given the nature of the investigation and the possible disciplinary sanction of dismissal the Claimant should have been given the opportunity on this occasion to be represented by a paid Trade Union Official. This was denied in contravention of his right to fair procedures.
The right to fair procedures in decision making is an unenumerated Constitutional right pursuant to Article 40. It means that an employee such as the Claimant must be given an adequate opportunity to defend himself from the allegations being made against him. It is not in the Respondent’s gift to determine how the Claimant should exercise his constitutional right to do so”.
It was also submitted on behalf of the complainant that the right to fair procedures are outlined in the Code of Practice on Grievance and Disciplinary Procedures (S.I. 146 of 2000). This right was also confirmed in the Labour Court decision LCR18364, Dunnes Stores Tralee v Mandate:
“the right to representation is obligated by the requirement of procedural fairness and it is clearly for the benefit of the employee. It follows that it is the employee and not the employer who has the right of election as between the modes of representations provided for by the code of practice”.
The process used in this case involved the investigation officer acting as “both Judge, Jury and Executioner” in that he carried out he three investigation meetings and then made the decision to invoke the disciplinary procedures and acted as the disciplinary manger and made a decision to dismiss the complainant. It was also submitted by the complainant’s representative that Mr Conway was considering a sanction of dismissal before the process was completed and a letter dated 9/8/21 was cited as evidence of this.
The respondent’s representative also referred to the case of Marvin Moore v Tesco Ireland Ltd (UD2423/2011) wherein the complainant was found to be unfairly dismissed and was awarded €11,500 even though the complainant in that case had been convicted of the sale and supply of drugs. A further case of Noonan v Dunnes Stores IER (2016) (unreported) and cited in the Employment Law Report, April 2016 the Circuit Court “considered the dismissal of an employee by the company to be unfair after he had assaulted a Garda Sergeant. The Circuit Court deemed the dismissal to be unfair as the conduct was not connected with the workplace”.
The complainant’s representative submitted that the respondent was not willing to accept his declaration of innocence despite him having an exemplary work record. The respondent acted unreasonably in their determination of a sanction of dismissal in circumstances where they failed to afford the complainant the principles of natural justice and fair procedures throughout the process. The complainant has suffered greatly because of his dismissal both personally and financially and has been unsuccessful in his attempts to secure meaningful alternative employment.
The complainant in his evidence confirmed that Mr Conway showed him the newspaper articles in relation to his arrest on a few occasions, but he did not want to view them. The complainant confirmed that he received a copy of the employee handbook when he commenced employment. The complainant was asked what training was provided to him and he confirmed that he received manual handling training and till training. The complainant was asked when he first realised that the respondent was taking this matter seriously and he confirmed that it was not until the 9th of August 2021 when he received a letter from Mr Conway. The complainant also confirmed that he did not know what would happen as he will prove his innocence at the court case.
The complainant was cross examined by Mr Lyons BL. Mr Lyons made it clear to the complainant that in his role as the respondent’s representative he was asking him questions in order to understand the issues and were not intended to embarrass or make matters unpleasant for him. The complainant was asked if he had received an updated employee handbook and the complainant was not sure if he had. It was put to the complainant that he signed a receipt of the employee handbook on 13/10/2010. He had a contractual obligation to be bound by the terms of the handbook. It was put to the complainant that section 6 of the handbook deals with the Code of Conduct. The relevant paragraph states: “To maintain proper standards of integrity and conduct and concern and not to do anything which is likely to bring the Company’s reputation into disrepute, either during or outside the course of your employment”. The complainant was asked if the act which he was alleged to have committed would make the company look bad given that people in the community shop in the supermarket and they would most likely read the newspapers. The complainant agreed that it would.
The complainant was asked about the events of 16/06/2021 and he explained that he was the supermarket in Dublin city centre to use the toilet. He checked with the security officer if the toilets were open, and he proceeded to the toilets which were located on the third floor. There was no one else in the toilet and he proceeded to use the urinal. While there he was approached by a man who identified himself as a Garda and another Garda also arrived. He was arrested and taken to a Garda station and changed with alleged act of public masturbation. The complainant confirmed that both Gardai made statements, and these were with his solicitor. He confirmed that he did not read them, but his solicitor read them to him. It was put to the complainant that these statements would constitute “relevant information” and that copies should be submitted to the WRC. The complainant confirmed that he would ask his solicitor about this, and he also confirmed that if he was not in a position to provide those his representative would advise the WRC accordingly. The complainant’s representative submitted the two statements to the respondent’s representative and the WRC on 03/08/2022.
The complainant confirmed details of his arrest and confirmed that he has not yet provided a statement as he is waiting to be advised on this by his solicitor. The complainant was asked to explain how he intended to prove his innocence. The complainant said that he intends to give a statement. It was put to the complainant that it was unlikely that two Gardai would have mistaken what they had seen him do at the urinal. The complainant replied that he “would fight that in court”.
The complainant confirmed that he was due to work on the night on 16/06/2021 and following his arrest he telephoned Ms Donohue in HR to say that he had a migraine headache and would not be in work that night. He made this call after he had been released from the Garda station.
The complainant was then asked to provide details of his arrest on 10/07/2021 as he was about to come on duty. He explained that there were two Gardai and they took his bicycle into a white van, and he was asked to go into the car which he did. The complainant said that he was not handcuffed by the Gardai. The complainant outlined that his arrest was witnessed to two colleagues.
The complainant confirmed that when he reported for work the following day he was suspended. He told the manager that he was arrested as he did not answer a telephone call from the Gardai. He outlined that it is his practice not to answer calls which do not have telephone numbers displayed. The complainant confirmed that he was due on a week’s holiday the following week. The complainant agreed that there was a lot of publicity surrounding his arrest and court appearance.
It was put to the complainant that he refused to give any information to Mr Conway at any of the meetings he attended. The complainant said that he was doing as instructed by his solicitor. He agreed that he was asked by Mr Conway to reconsider his position. The complainant confirmed that he had received a text message from his solicitor which said that he was innocent until proven guilty.
The complainant was asked to explain his view that he was illiterate. He confirmed that he was not totally illiterate, and he had done three years of numeracy and literacy skills. The complainant was asked if he agreed that this matter would be harmful for the company, and he replied that it would not as it happened outside the company. The complainant also confirmed that he realised on 9th August 2021 that this was a serious matter.
In relation to his right to representation the complainant confirmed that he has a colleague attend all the meetings with him. This person was active in the trade union, and he was also a member of the trade union.
It was put to the complainant that he was no worse off as he had a colleague attend with him. The complainant said that she was a friend who has stuck by him. The complainant agreed that this colleague said that Mr Conway was being fair to the complainant. He also agreed that he said this.
It was put to the complainant that the overall position was that Mr Conway had a number of meetings with him and he was given many opportunities to outline and clarify his version of events. At the meeting on 8th September 2021 Mr Conway then took a break to consider the matter and made a decision to dismiss him. The complainant confirmed that he had those meetings.
It was put to the complainant that after the decision to dismiss him he was given an opportunity to appeal that decision and set out his grounds of appeal in writing. The complainant confirmed that he done that. The complainant was asked about the letter confirming the appeal outcome and he confirmed that he did not receive it initially as he had moved. It was put to the complainant that the appeal process was a further opportunity for him to make his observations in relation to this matter and he confirmed that he done that.
It was put to the complainant that when one looks at the process, he had a fair hearing and given fair opportunities to state his case. The complainant said that he had “no comment” in relation to that.
The complainant also confirmed that he never requested to be moved to another store.
The complainant was asked why Mr Conway was criticised for his handling of this matter. The complainant said that he should have been told earlier that his job was at risk and the felt that Mr Conway had made his decision to dismiss him at their first meeting.
It was put to the complainant that the statement in his submission that he had an exemplary work record was not a fair statement. The complainant said that he had received some warnings. The respondent’s representative then outlined a number of warnings that were issued to the complainant from 2008 to 2017 and the complainant agreed that this did not indicate that he had an exemplary work record.
The complainant was asked about the attempts to mitigate his loss and he said that he remained unemployed and had submitted a number of applications for work. The complainant confirmed that he had not received a call to any interviews. The complainant confirmed that the applications were all made through the same website, and he was also registered with some agencies. The complainant did not know why he was not getting any employment offers and said that if he could get work, he would start in the morning.
It was put to the complainant that the stance that he took with the respondent was totally unhelpful. The complainant said that he was acting on the advice of his solicitor. It was put to the complainant that he was presented with a prosecution from the DPP, statements from two Gardai and a serious allegation and despite this he did not cooperate with the respondent’s process.
Ms Anderson in closing stated that in the case cited by respondent of Mooney v An Post was different as there were actual complaints in that case and in the instant case the respondent did not provide any evidence of complaints. Ms Anderson also refuted the suggestion that the complainant did not cooperate. He attended the meetings and confirmed details.
The complainant does not have a copy of the handbook he was issued with and is unable to state if subsequent versions had any relevant changes.
Ms Anderson said that he investigation meetings were informal, and the complainant was never advised of the seriousness of his situation and that the termination of his employment was a possibility. Ms Anderson also addressed the question of whether representation would make a difference and she said that they would normally ask for a copy of the relevant policy and they may have advised the complainant differently.
Summary of Respondent’s Case:
The respondent denies and contests that the complainant was unfairly dismissed. The complainant was arrested outside the respondent’s premises on 10/07/2021 by two members of An Garda Síochána. The complainant contacted a representative of the respondent’s, Ms Marie Donohue, the following day and advised her that he had been arrested as he failed to provide a witness statement to Gardaí. The following evening the respondent’s ambient manager, Mr Milton Hoque asked the complainant if he had been arrested and he confirmed that he was. He declined to provide any further information. In those circumstances Mr Hoque made a decision to suspend the complainant on pay pending an investigation. This was a holding suspension and not a disciplinary sanction.
The complainant appeared before Dublin District Court on 13/07/2021 where he was accused of an offence contrary to the Sexual Offences Act in a supermarket in Dublin city centre on 16/06/2021. The respondent acknowledges that the complainant has contested the charges in full. However, the nature of the charges in question and the particular circumstances and location raised significant reputational concerns for the respondent.
The complainant was requested to attend a meeting with the Store Manager, Mr John Conway, on 22/07/2021. He attended with a work colleague, LT. At this meeting the complainant was asked about the circumstances of his arrest on 10/07/2021. He confirmed that he was arrested because he did not answer his phone and he clarified that he does not answer private numbers. The complainant confirmed that the allegations against him were in the papers, and he outlined that he was innocent until proven guilty and he intended to contest the charges. Mr Conway asked the complainant to “explain in your own words what happened” and the complainant responded that he had taken legal advice and had been advised not to discuss what had taken place. Mr Conway outlined that this meeting was an opportunity for the complainant to clarify his story and not just what was written in the media. The complainant responded that he was advised by his solicitor not to clarify anything. Mr Conway then advised the complainant that he needed to consider if this matter impacted on the company and if the company would deem the complainant fit to work for them. The complainant was given an opportunity to consider the matter and see if he was willing to provide more information. When the meeting resumed the complainant’s colleague, LT, outlined that the complainant was very upset over these allegations and confirmed that the complainant had been charged with the offences as reported in the newspapers. The complainant also apologised for the upset it had caused the respondent’s company.
A further meeting took place on 26/07/2021 and the complainant attended with a work colleague, LT. At this meeting the complainant was asked if he could see how this matter was causing a lot of concern for the respondent. The complainant confirmed that he did. Mr Conway also outlined that this was not something that he had come across very often and that he would need more time to process it. He confirmed the complainant’s suspension. The complainant’s colleague added that she felt that Mr Conway was being more that fair to the complainant.
Another meeting was held on 29/07/2021 and the complainant attended with a work colleague, LT. The minutes of the previous meeting were read and confirmed as being correct and signed. Mr Conway asked the complainant if he had anything to say about the issue or if he was prepared to tell them anything about the incident. The complainant confirmed that he had nothing to say about the issue. The complainant’s colleague was asked if she had anything to add on behalf of the complainant and she asked for a letter setting out the reasons for the complainant’s suspension.
Mr Conway wrote to the complainant on 09/08/2021 and provided copies of meeting notes and all notes regarding the matter. Mr Conway confirmed that the complainant was “suspended on pay pending investigation and consideration of your future employment with the Company following on from the matter of your attest, change and information in the newspapers and I have questioned you on this”. Mr Conway then went on to advise the complainant: “I am considering termination of your employment under the following basis: your alleged conduct whilst as an employee of the Company, may damage the Company in the eyes of the Customer”. The respondent submits that the complainant was specifically advised in this letter of the possibility of the termination of his employment and the reason for doing so.
The complainant was certified by his GP as suffering from stress and anxiety and the respondent postponed a proposed disciplinary meeting to facilitate the complainant. A disciplinary meeting was held on 08/09/2021 and this was attended by Mr Conway, Ms Donoghue, the complainant and his work colleague, LT. The complainant was asked to confirm that he had received the letter of 09/08/2021 and that he had an opportunity to review it. This was confirmed by the complainant. Mr Conway referred to the Dunes Stores Code of Conduct which is outlined in the Staff Handbook and specifically the following passage: “We expect staff to maintain proper standards of integrity and conduct and not to do anything which is likely to bring the Company’s reputation into disrepute either during or outside the course of your employment”. The complainant was asked if he had any comment in relation to this and he declined to do so. It was put to the complainant that if the information which was reported in relation to his conduct was true then he would not have adhered to the Code of Conduct. The complainant declined to comment on this.
In order to provide the complainant with a further opportunity to consider his position with his colleague there was a break in the disciplinary meeting. Following this break the complainant declined to provide any further information other than to protest his innocence.
Mr Conway then concluded that the complainant’s alleged conduct was inappropriate and had the potential to damage the reputation of Dunnes Stores in the eyes of their customers. He took a decision to terminate the complainant’s employment, and this was confirmed in writing on 14/09/2021. The complainant was also advised of his right to appeal and was provided with details of the appeal process. The complainant submitted his letter of appeal on 21/09/2021 and he also requested copies of any evidence against him. The complainant was advised by the appeal person, Mr Thomas Worrall, Store Manager, that he had been provided with all relevant information and was granted a further seven days to outline his grounds for appeal. The complainant set out his grounds for appeal in a letter dated 07/10/2021. Mr Worrall wrote to the complainant on 18/10/2021 inviting him to review the points contained in his letter of appeal and allowed a further seven days to put forward any additional information in support of his appeal. The complainant did not avail of that opportunity and by letter dated 02/11/2021 the complainant was advised that his appeal was not allowed and the decision to dismiss him was upheld.
A number of legal submissions were submitted on behalf of the respondent. Section6(1) of the Unfair Dismissals Act, 1977 provides that:
“(a) 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”.
The respondent submits that there were substantial grounds justifying the termination of the complainant’s contract of employment. The respondent further asserts that the dismissal of the complainant was reasonable in all the circumstances, and it cannot be seriously suggested that the sanction of dismissal, in all the circumstances, was outside the “band of reasonable responses”. The role of the Adjudication Officer is not to substitute his/her views for that of the employer but rather to establish whether or not the decision to dismiss was within the ‘band of reasonable responses” available to an employer finding itself in the position of the respondent. It was submitted by the respondent’s representative that there were a number of relevant legal precedents. Anglian Home Improvements Limited v Kelly  ICR 242: “The correct legal test is: Was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might have reasonably dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view: another quite reasonably take a different view. One would quite reasonably dismiss the man. The other would quite reasonably keep him on. Both views may be quite reasonable. If it was quite reasonable to dismiss him, then the dismissal much be upheld as fair: even though some other employers may not have dismissed him”.
The respondent’s representative also opened the case of Foley v Post Office  ICR 1283, which was cited with approval by McGovern J of the High Court in the context of a wrongful dismissal claim in Doyle v Asilo Commercial Limited  IEHC 445:
“It is not the function of the courts to substitute itself for the employer and to make its own decision on the merits of the employer’s decision to dismiss. As Mummery LJ stated in Foley v The Post Office  ICR 1283 at page 1295:
“The employer, not the Tribunal is the proper person to conduct the investigation into the alleged misconduct. The function of the tribunal is to decide whether that investigation is reasonable in the circumstances and whether the decision to dismiss, in the light of the results of that investigation, is a reasonable response”.
The respondent’s representative also opened the case of The Governor and Company of the Bank of Ireland v Reilly  26 ELR 229 which held 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) of the Act.
It was submitted on behalf of the respondent that the complainant was under an obligation to provide his cooperation in relation to the investigation being carried out by the respondent. The authority for this proposition has been provided by the Supreme Court in Mooney v An Post  4 IR 288 in which Barrington J at page 300 stated:
“The defendant received complaints which caused it to have misgivings about the integrity of the postal service and about the conduct of the plaintiff. It appears to me that the defendant was entitled to expect a candid response from the plaintiff when they put these misgivings to him and that it was not sufficient for the plaintiff to deny responsibility…”
The case of Mooney concerned a disciplinary investigation which overlapped with a criminal matter. The existence of an overlap does not prevent the plaintiff in those proceedings to invoke a right to silence as a basis for nob-cooperation with the investigation. Barrington J at page 300 of that judgement pointed out that “It is important to emphasise that the dismissal proceedings were not criminal proceedings, and it was not sufficient for a person in the position of the plaintiff simply to fold his arms and say: I’m not guilty. You prove it”.
In this case the complainant declined to provide any cooperation in relation to the matter which was of real and genuine concern and had a self-evident position of causing damage to the business reputation of Dunnes Stores. It was impermissible for the complainant “to fold his arms (metaphorically speaking) and invoke the right to silence in circumstances where bona fide cause for concern existed”. The absence of the complainant’s cooperation made it impossible for the respondent to conduct the investigation in relation to the events which underpinned the criminal prosecution. The respondent was not in a position to ignore the charges having regard to the potential for reputational harm and there was no exculpatory information provided by the complainant who was under an obligation to do so. In these circumstances the complainant cannot credibly argue that the decision to dismiss him was an unreasonable one in the circumstances.
In relation to the complainant’s submission that there were procedural deficits the respondent representative submitted that even if there were and the respondent denies that there were, these deficits did not imperil the complainant’s entitlement to a fair hearing. The respondent relies on the test identified by Laffoy J in the High Court case of Shortt v Royal Liver Assurance Ltd  IEHC 332 that:
“the authorities … make it clear that, while an employee who is facing disciplinary action is entitled to the benefit of fair procedures, what these will demand depends on the terms of the employee’s employment and the circumstances surrounding the disciplinary action (per Barrington J in Mooney v An Post  4 I.R. 228 at p. 298). The important point is that the decision-maker must not act in such a way as to imperil a fair hearing or a fair result (per Hamilton C.J. in Gallagher v The Revenue Commissioners (No 2)  1 I.R. 55 at p. 76)”.
In reviewing the procedure at applied to the complainant it was submitted on behalf of the respondent:
a) There is no requirement to furnish the employee with a formal invitation to an investigation. An employer is entitled to meet with an employee and ask them questions about work matters.
b) The complainant cannot seriously suggest that he did not understand the reason for the investigation or the matters under investigation. It is very clear from the minutes of the meetings that the complainant well understood what the issues were.
c) The complainant was advised of his right to be represented during the disciplinary procedure and he availed of that right. The meetings notes show that he was represented by a colleague.
d) The complainant was afforded his right to a fair and impartial determination of the issues concerned.
e) The complainant was advised of his right to appeal and exercised that right. S.I. 146/200 does not require an oral appeal or the holding of a meeting with the employee before the conclusion of the appeal. The respondent’s disciplinary procedure does not provide for an oral hearing.
f) In circumstances outlined above, it is clear that the complainant’s entitlement to a “fair and impartial determination of the issues concerned, taking into account any representations made by, or on [his] behalf, and any other relevant or appropriate evidence, factors or circumstances” was upheld by the respondent during the course of the investigation and disciplinary procedure.
In relation to the complainant’s submission that Mr Conway acted as both investigator and decision maker the respondent relies on the judgement of the Supreme Court in O’Callaghan v Disciplinary Tribunal & Others  1 IR 1, as follows:
“In [this] Court two grounds of attach have been put forward. The first relates to the statutory procedures under which the Disciplinary Tribunal acts. Before there can be an inquiry the Tribunal has to make a determination as to whether there is a prima facie case for holding such an inquiry. Mr Walter Beatty sat on the division of the Tribunal which initially decided that there was a prima facie case for an inquiry and then sat on the division of the Tribunal which conducted the inquiry itself. It is argued on behalf of the applicant that that is an unfair and unlawful procedure in that not only will all the documentation have been before Mr Beatty at the preliminary stage, but he will have formed a preliminary view on the matter or at least might have, and that in these circumstances there was an apparent objective bias on the part of Mr Beatty while he participated in the inquiry itself…
On the first of the grounds the following is what was said by McCracken J. in the High Court:
“… I think this case is made under a misapprehension of the nature of the preliminary procedure. It is not an inquiry and does not in any way decide upon the validity of the complaint made against the applicant. It simply decided that there is a serious case put forward by the complainant. At that stage the Tribunal is not aware of the attitude of the solicitor against whom the complaint is made, and all that it is doing is directing that inquiries should be made into the complaint. As I said earlier, this is very similar to the situation where a court gives leave to an applicant to bring judicial review proceedings”.
The judge also points out that here is no rule in the High Court to say that a judge who gives leave for a judicial review cannot hear the judicial review application itself. “The nature of the decision to be made; the second time round is quite different from the nature of the decision made on the first occasion”.
The respondent’s representative also made a reference to the Code of Practice and in particular the right to representation. The complainant was offered to be accompanied/represented by a work colleague. This entitlement is provided for in the respondent’s handbook. The complainant was afforded the right and he availed of it.
The respondent’s representative also addressed the complainant’s submission that the allegations were not provided to him in writing before the investigation. The investigation was a “pure” investigation: Bergin v Galway Clinic Doughiska Ltd  2 IR 205. It did not make any findings other that a finding that the complainant had a prima facie case to answer. It is well established that the process of carrying out such a “pure” investigation does not attract the benefit of fair procedures: O’Callaghan v Disciplinary Tribunal  IR 1. Even if the process was flawed that would be nihil ad rem (nothing to the matter). The complainant was provided with a letter which provided details in advance of the disciplinary hearing and this was patently sufficient to meet the requirements of due process.
The respondent submits that this accords with the test identified by Laffoy J in the High Court case of Shortt v Royal Liver Assurance Ltd  IEHC 332 that:
“the authorities … make it clear that, while an employee who is facing disciplinary action is entitled to the benefit of fair procedures, what these will demand depends on the terms of the employee’s employment and the circumstances surrounding the disciplinary action (per Barrington J in Mooney v An Post  4 I.R. 228 at p. 298). The important point is that the decision-maker must not act in such a way as to imperil a fair hearing or a fair result (per Hamilton C.J. in Gallagher v The Revenue Commissioners (No 2)  1 I.R. 55 at p. 76)”.
The respondent’s representative also complainant’s submission that the case of Marvin Moore v Tesco Ireland Ltd was relevant. This instant case can be distinguished from the facts of Moore as Mr Conway did consider other sanctions open to him and advised the complainant of this. The complainant did not have an unblemished work record as he received a number of cautions and disciplinary sanctions during the course of his employment with the respondent.
Three witnesses gave evidence on oath on behalf of the respondent.
Ms Marie Donoghue is the HR manager at the respondent’s store where the complainant was employed. She is in this role three years and the respondent has approximately 220 staff at this store which deals in textiles and grocery. Ms Donoghue confirmed that she is familiar with the complainant. She gave evidence that while on duty on 11/07/2021 she received a telephone call from the complainant. The complainant asked her if she heard that he got arrested outside the store. He confirmed that he was arrested and that this occurred because he didn’t answer private phone numbers and he was required to provide a witness statement to the Gardaí. The complainant was due to work on a night shift as a night packer. Ms Donoghue confirmed that Mr Hoque had a conversation with the complainant when he reported for duty the following evening. Mr Hoque suspended the complainant with pay pending an investigation and this was in relation to his arrest at the premises. Ms Donoghue was asked if it was correct that the complainant had worked for the respondent for 15 loyal years without incident. Ms Donoghue said that the complainant had a record of previous warnings for various matters such as attendance, use of mobile phone and a dignity at work incident. On cross examination Ms Donoghue was asked if she had advised the night manager and she confirmed that she had. Ms Donoghue was asked why there was nothing provided in writing to the complainant, and she said that Mr Hoque had informed the complainant about his suspension and the reason for this.
Mr John Conway gave evidence. He confirmed that he has worked for a store manage for 22 years and is in the current store where the complainant worked for three years. He described his role as that of a general manager and has a number of other managers who report to him. He confirmed that there are 220 employees in this store. He outlined the catchment areas where the store is located, and that staff and customers are neighbours and are on friendly terms. Mr Conway confirmed details of the meeting he held with the complainant on 22/07/2021. He confirmed that the complainant’s colleague was LT and that she is also an employee. The complainant brought this colleague to the meetings the Mr Conway is aware that she is a member of the trade union. Mr Conway was asked to confirm that the responses provided by the complainant as recorded in the minutes were accurate and he confirmed that this was the answers provided by the complainant. Mr Conway as asked if the complainant volunteered any prosecution evidence and Mr Conway confirmed that none was provided. Mr Conway confirmed that the complainant was told by him that the meeting was an opportunity for him to clarify what had happened. Mr Conway also confirmed that the complainant did not dispute the fact that he was at the venue as reported in the media. Mr Conway also confirmed details of the meeting on 26/07/2021. Mr Conway was also asked to outline what his thought process was in relation to this matter. He outlined that this was a delicate situation for the complainant, and it was an unusual one for the respondent. His approach was to deal with it as best he could and as compassionate as he could. Mr Conway confirmed that the reason the complainant was suspended was because of what was reported in the papers, and he was investigating that. He confirmed that he had not made any decision in relation to this matter.
In relation to the disciplinary meeting Mr Conway confirmed that a medical certificate was received from the complainant, and he postponed the meeting as a result of this. This meeting was subsequently held on 08/09/2021. Mr Conway said that the company policy did not allow for external representation at disciplinary meetings, and this was the reason he told the complainant that he was facilitated by having a work colleague present.
Mr Conway was asked if the decision to dismiss could be described as harsh. He responded that he had to base his decision without any information from the complainant. He was more than satisfied that he gave the complainant many opportunities to provide clarification, but he did not do so. Mr Conway was asked to outline what potential reputational damage might arise from this incident. He outlined that their store is community based and staff and customers live in the adjacent catchment areas. People read the newspapers and as a result of that people talk. He had a duty to protect the store in the eyes of the customer and in that context, he felt that the decision to dismiss was appropriate. Mr Conway confirmed that the complainant received formal confirmation of the decision in a letter dated 14/09/2021.
Under cross examination Mr Conway was asked why the complainant was not formally invited to the investigation meeting. Mr Conway said that he was not in the store at that time and did not know. He also confirmed that the complainant did not receive any written invitations to the other two meetings. It was put to Mr Conway that the complainant was not advised of the potential sanction and he confirmed that was correct. He also confirmed that he was not issued with a copy of the disciplinary policy. Mr Conway was asked why he did not ask someone else to hold the disciplinary meeting and he outlined that he did not want to cause any further upset to the complainant. Mr Conway was asked if he considered any other sanctions and he outlined that he had to look at all angles. He confirmed that people – customers and store staff – know the complainant. Mr Conway agreed that he did not look at a potential transfer to another store. He also confirmed that he showed the newspaper cuttings about the incident to the complainant on one occasion. He was asked if he accepted that the complainant’s colleague, LT , was not a shop steward for the trade union and Mr Conway confirmed that he never said that she was.
In his redirection Mr Conway outlined that he was impartial in his dealings and in his decision to dismiss the complainant. He confirmed that he did not want to cause any further stress to the complainant. Mr Conway also confirmed that the complainant did not request a transfer at any stage.
Mr Tom Worrell is a store manage in another of the respondent’s stores. He has been a store manager for 32 years and he confirmed that he did not know the complainant. He confirmed that he was appointed as the appeal person in this case. Mr Worrell confirmed that he received a letter from the complainant dated 21/09/2021 seeking copies of all evidence in relation to this matter. Mr Worrell confirmed that he wrote to the complainant stating that he had received all the evidence and that he was prepared to give him a further seven days to submit his grounds for appeal. Mr Worrell confirmed that he was not aware of any decision made prior to the disciplinary hearing. Mr Worrell was asked if the complainant had brought the company into disrepute and Mr Worrell noted that the complainant had in fact apologised to the company for the incident. Mr Worrell was clear that in his review of the appeal he noted that the complainant provided no information or there was no engagement from him. Mr Worrell was asked about the policy in relation to representation. He confirmed that the policy that an employee could be represented by a work colleague. Mr Worrell also confirmed that he received a letter from the complainant dated 18/10/2021 requesting a meeting in relation to his appeal. Mr Worrell confirmed that the company policy was that appeals were undertaken by way of written submissions. Mr Worrell also confirmed that the complainant did not ask for a transfer and he also confirmed that such a transfer was not company policy. Mr Worrell confirmed that he undertook a review of all the material received prior to making his decision to uphold the decision to dismiss the complainant.
Under cross examination Mr Worrell was asked if the letter of 01/10/2021 was sent to the complainant and he confirmed that it was not sent. He was then asked if it was normal for another store manage to hear an appeal and he confirmed that it was the practice. Mr Worrell was asked to explain how the company could be taken into disrepute. Mr Worrell said that their stores are community based and are embedded into the local community. An incident like this would be known and likely to bring the company into disrepute. Mr Worrell confirmed that a transfer to another store was not part of their policy.
In his closing remarks the respondent’s representative Mr Lyons, BL, stated that if there were any procedural failures there must be a likelihood of an impact on the process. The process must be considered in the round and the various authorities confirmed this. This case was unusual in that the complainant took a course of action and he did not outline his version of the events. Any criticism of the respondent must be seen in that light. In relation to the contention put forward by the complainant that Mr Conway was not impartial it was noted that here is no legal authority cited by the complainant in relation to this. Mr Conway did not make any findings and he spent a number of weeks on what was essentially an information gathering exercise. He made no findings, and he was trying to establish what he overall facts were. Any criticism of Mr Conway is misconceived.
Mr Lyons also stated that there were no material changes in the company handbook and the complainant did not provide any evidence that there were. The question in this case is, is it meaningful for an employee to say that the kind of conduct involved could not reflect badly on the employer.
In relation to issues associated with representation Mr Lyons noted that there are different views. In this case this did not matter as the complainant took a particular stance, i.e., non-cooperation. The various authorities cited say that non-cooperation is not an option. The employer is not a tribunal, and all an employer can do is to ask the employee to co-operate and give information.
The respondent in this case was placed in in unenviable position. There was a charge by the Director of Public Prosecutions, two Garda statements, investigation meetings that they had to consider. The fact that the complainant did not help himself is not the fault of the employer
Findings and Conclusions:
CA-00047456-001: This is a complaint pursuant to the Unfair Dismissals Act. The Complainant commenced employment on 22/06/2017 and ended on 08/09/2021. He worked as a General Assistant and was paid €570.75 gross per week. The fact of dismissal is not in dispute. The legal onus is on the Respondent to show that the dismissal was not unfair. In this case, the dismissal arose from the as a result of the complainant’s alleged breach of the Code of Conduct in relation to an incident which resulted in the complainant being charged under the Sexual Offences Act. The evidence was that the complainant had breached the Code following his arrest and charge before the Dublin District Court on 13/07/2021 and the implications that the extensive reporting of this matter had for the respondent’s reputation with its customers.
The lawful reasons for dismissal are set out in Section 6 (4) of the Unfair Dismissals Act 1977 which provides:
“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:
(a) The capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,
(b) The conduct of the employee,
(c) The redundancy of the employee, and
(d) The employee being unable to work or continue to work in the position he held without contravention (by him or his employer) of a duty or a restriction imposed by any statue or instrument made under statute.”
Furthermore, Section 6 (6) of the Unfair Dismissals Act 1977 places an onus on the employer which provides:
“In determining, for the purposes of this Act, whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.”
The burden of proof lies with the Respondent to show that the complainant’s dismissal was fair. In formulating a decision, I am conscious that in my role as an Adjudicating Officer, I must not assume the mantle of an employer regarding the facts in any case. My role is to decide whether, within the so-called band of reasonableness of decision making, an employer’s decision is not unfair. The band of reasonable test was considered by the Irish High Court in Bank of Ireland v Reilly ( IEHC 241. In that case, Noonan J looked at S 6(7) of the Unfair Dismissals Act 1977 and outlined that it provided that a court have regard to the reasonableness of the employer’s conduct in relation to a dismissal. He stated:
“That is, however, not to say that the court or other relevant body may substitute its own judgement 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.”
It is not my function to determine if the dismissal was the correct sanction. It is my function to determine if the sanction of dismissal came within the “band of reasonableness” cited in the above referenced cases. I am guided by the jurisprudence of the High Court in the case of Bank of Ireland.
The importance of fair procedures in cases involving dismissal on grounds of misconduct has been set out in our case law.
In cases where a dismissal involves gross misconduct the EAT set out the appropriate test to be applied in such circumstances. 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 guild 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 within case there were clearly a number of issues which the respondent was required to address.
I have carefully considered the submissions received and evidence presented by both parties at the hearing. The allegations against the complainant were very serious and would have important implications for both the respondent and the complainant. Trust is an essential component of all employer/employee relationships. The respondent had a duty to deal with the incident which was widely reported on 13/07/2021. on 04/10/2018. It is clear that the respondent had a policy which dealt with such an eventuality.
The respondent set up an investigation in order to obtain further information from the complainant in relation to his matter. The complainant gave evidence that he did not know why he was suspended by Mr Hoque on 13/07/2021. This is not compatible with the evidence that he was asked by Mr Hoque about his arrest and was suspended on pay by Mr Hoque after he spoke to the complainant. The complainant gave evidence that he did not know why he was asked to attend a meeting with the store manager on 20/07/2021. As the complainant was suspended for a specific reason it is not credible that a meeting with the store manager could be about anything else other than to discuss the incident. A meeting with one’s store manager would, most likely, be an unusual event and only in circumstances where something of a serious nature was involved. I do not accept that the complainant was unaware of the nature of the matter being investigated by the respondent.
Having considered the evidence I am satisfied that Mr Conway gave the complainant many opportunities to clarify “in your own words” what happened. The complainant did not provide any information other than to confirm his arrest and to confirm that the reporting of his court case was correct.
In my review of the evidence the complainant was given four opportunities by Mr Conway to clarify matters. These opportunities took place on 22/07/2021, 26/07/2021, 29/07/2021 and 08/09/2021. The complainant was given a further opportunity at the appeal stage to provide any information relevant to this matter.
The complainant gave evidence that he did not appreciate the seriousness of his situation until he received written confirmation dated 09/08/2021 in relation to this suspension. This does not stand up to scrutiny as the complainant was on suspension and in such circumstances, this should have alerted him to the fact that the respondent was taking this matter serious and at the first meeting he was advised by Mr Conway that the respondent needed to consider if this matter impacted on them and if “we deem you fit to work here”. I am satisfied that there was no ambiguity in relation to this clarification. I find that the complainant’s evidence that he was unaware of the seriousness of his situation is inconsistent with his view that the store manager, Mr Conway was considering his dismissal prior to a disciplinary hearing taking place.
The complainant’s representative stated that as the complainant was not aware of the seriousness of his situation, he should have been facilitated with representation from his Trade Union Official at the disciplinary meeting and that a failure to do so “risked a fair hearing on these facts”. The complainant was advised at all times that he could be accompanied by a work colleague. He availed of this right. In his evidence the complainant confirmed that he was a member of the trade union and that his colleague was also a member. At any stage in the process the complainant or his colleague could have taken advice from their trade union. The respondent provided a number of breaks in the various meetings to allow an opportunity for the complainant to consult with his colleague. The complainant gave evidence at the hearing that he maintained the same viewpoint at the disciplinary hearing and that he was not going to provide anything further. The complainant confirmed that he took advice from his trade union official at the appeal stage of the process.
It was submitted on behalf of the complainant that the disciplinary process was flawed in that Mr Conway conducted the investigation and disciplinary hearings. It was also submitted that Mr Conway had already considered the sanction of dismissal before the investigation process was completed. While the point being made can be relevant in considering some procedural shortcomings in the instant case the fact remains that the complainant’s only engagement with the process was to confirm his arrest and the nature of the charge against him. There was no evidence that the complainant would have provided any further information to any other person at that time. It is clear that he continued to maintain his position that he was advised by his solicitor not to discuss this matter with anyone. The complainant did not clarify if he had spoken to his solicitor in relation to a workplace investigation. I am satisfied that there is no evidence to suggest that Mr Conway in any way acted in such a manner that would compromise a fair and impartial hearing.
The appeal process was conducted in similar manner and conducted in line with the respondent’s procedures. This procedure outlines that an appeal is by way of written submissions. I accept Mr Worrell’s evidence that he gave the complainant a number of opportunities to provide any additional information relevant to the appeal and that he undertook the appeal in an open-minded and detailed manner.
In all the circumstances of this case I find that the action of the respondent in dismissing the complainant for gross misconduct was within the range of reasonable responses open to it and that substantial grounds did exist to justify the Complainant’s dismissal.
CA-00047456-002: In view of my findings in the previous complaint I find that this complaint is not well founded.
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
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.
CA-00047456-001: I find that the complainant was not unfairly dismissed
CA-00047456-002: I find that this complaint is not well founded.
Workplace Relations Commission Adjudication Officer: John Harraghy