Complainant

Respondent

Parties

Roy  Sweeney

 Ck Roofing & Carpentry Ltd

Representatives

Dearbhla Casey B.L. instructed by Crean O'Flaherty Solicitors LLP

Roisín Haughey B.L. instructed by Henry Hathaway Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00064056-001

12/06/2024

The complainant was employed by the respondent as a General Operative (G.0.) from February 2022 until his dismissal for gross misconduct on 18th April 2024. The complaint relates to an alleged unfair dismissal.

Supplemental submissions

At the adjudication hearing on 28th November 2024, the complainant was asked to furnish additional submissions in respect of loss of earnings calculations within 14 days of the hearing. The respondent’s representative was given a further 14 days to submit a response. The supplemental submissions of the complainant were not received until 7th March 2025 and the response from the respondent’s representative was received by the WRC on 2nd April 2025. As supplemental submissions were sought on mitigation of loss and related calculations only, other issues raised in the respondent’s supplemental submissions have not been considered.

Submissions

Counsel for the respondent contends that the complainant was dismissed for gross misconduct following a fair and transparent disciplinary process. The respondent’s position is that the complainant was involved in accident on site which led to him being knocked down by a van driven by one of his colleagues. While the complainant did not accept any wrongdoing on his part, it was his negligent and unsafe actions that led to him being injured despite his qualifications in Health and Safety which he had undertaken as part of his employment. The respondent’s position is that the complainant’s dismissal was fair in circumstances where he had not complied with his contract of employment, the Safety Health and Welfare at Work Act, 2005 and the staff handbook in respect of his own safety and that of others.

Legal Submissions

Counsel for the respondent outlined the provisions of the Unfair Dismissals Act, 1977 in respect of the complainant’s dismissal in accordance with Section 6(4)(b)of the Act. Counsel submitted that the disciplinary process which led to the dismissal was fair and that the sanction of summary dismissal was proportionate given the complainant’s conduct on the day in question. Counsel also cited Section 6(7) of the Act in respect of the respondent’s reasonableness and adherence to its own disciplinary procedures in relation to the dismissal.

Counsel cited the cases of Kilsaran Concrete v Vet (UDD11/2016),Pacelli v Irish Distillers Limited [2004] 15 ELR 25, Bunyan v UDT (Ireland) Ltd [1982] ILRM 404, Pottle Pig Farm v Pasanov UDD1735 in support of its position that it acted in line with fair procedures and its decision to dismiss was proportionate and within the band of reasonable responses of a reasonable employer.

Evidence and Cross examination – Witness No 1.

The first witness for the respondent is a HR professional with 40 years’ experience. The witness gave evidence by affirmation. The witness stated that he advised the respondent to comply with its procedures and suspend the complainant with pay while the investigation took place. The witness said that he presented the evidence at the disciplinary meeting but was not the decision maker in relation to the dismissal. The witness stated that the complainant’s accident report was different to what was depicted on the CCTV footage. The witness confirmed that all information was given to the complainant at the meeting, and he was given an opportunity to respond. The witness submitted that the purpose of the meeting was to establish if the actions of the complainant were a breach of good conduct and Health and Safety rules which would, in turn, be a breach of contract and thereby an act of gross misconduct leading to summary dismissal.

It was put to the witness in cross examination that the complainant was denied fair procedures, that he was unaware that the disciplinary meeting had the potential to end his employment and that the decision to dismiss was taken in approximately 10 minutes without any input from the complainant. In all those circumstances, it was claimed that the complainant had undoubtedly been treated very badly by the respondent and unfairly dismissed.

Evidence and Cross examination– Witness No 2.

The Company Secretary gave sworn evidence at the adjudication hearing. The witness stated that the HR advice was to suspend the complainant with pay between the 16th April 2024 and the 18th April 2024 when the disciplinary meeting would take place. The witness confirmed that the complainant was suspended as advised and the decision was taken to dismiss him from his employment in circumstances where he took no responsibility in relation to his actions on 16th April 2024 and there was no way forward in terms of the employment relationship. The witness stated in cross examination that the statements of the incident were reviewed and there were no statements from the complainant or the driver of the van. The witness further stated that the CCTV footage was not shared as it was not available until 3pn on 18th April 2024 and that it did not show anything different than outlined in the statements that were provided. The witness stated that the dismissal letter was signed at approximately 12.30pm on the 18th April 2024. Counsel for the complainant put it to the witness that the complainant was not suspended, was not provided with the CCTV footage which he should have been and was dismissed at the meeting without any opportunity to provide his position and where the respondent took only 10 minutes to reach a decision on the dismissal.

Supplemental submissions

Responding submissions from the respondent’s representative were received on the 2nd of April 2025. The respondent does not accept the quantified losses of the complainant. The respondent’s position is that the complainant did not disclose details of one employment at adjudication and only included this in his supplemental submissions which the respondent had to request. The respondent further stated that the complainant undervalued his current salary levels as he is also in receipt of additional payments including subsistence, fuel allowance, commission and a discretionary bonus payments. The respondent stated that the complainant did not provide the required documentation and the information that was submitted is insufficient to establish the actual losses incurred. The respondent further stated that the complainant has not made sufficient efforts to mitigate his losses as required.

Submissions

Counsel for the complainant stated that the complainant was involved in a workplace accident on 16th April 2024 which required medical treatment in hospital. On his return to work he was invited to attend a disciplinary meeting on 18th April 2024. Counsel contends that there was no time for the complainant to prepare for the meeting or put forward his version of events as to what happened on the day in question. Counsel further stated that the complainant was unaware that the meeting could result in the termination of his employment.

The complainant’s position is that he was summarily dismissed after a break in the disciplinary meeting held on the 18th April 2024 for gross misconduct yet the letter of dismissal relates to a “breach of good conduct and health and safety.” The complainant’s position is that he was not given ample opportunity to put forward an explanation of what happened on 16th April 2024 from his perspective and contends that his actions were not gross misconduct.

Legal Submissions

Counsel for the complainant stated that the respondent bears the burden of proving that the complainant was fairly dismissed. Counsel outlined the requirement on the respondent to adhere to the complainants contractual and constitutional right to fair procedures and cited the following paragraph fromEmployment Law Ireland, Cox, Corbett and Ryan Par 21.100:

In so much as this right will be most keenly enforced by the courts and the tribunal in circumstances where that employee faces the ultimate sanction of dismissal, a dismissal of an employee may be deemed to be unfair in circumstances where, even if there is no substantive difficulty with the dismissal (that is, where it is one of the listed reasons contained n the Act for which a dismissal will be deemed fair) the manner in which the decision to dismiss was reached and somehow procedurally flawed. From and employer’s standpoint therefore, it is vital that his or her business have in place a fair det of disciplinary rules and they be adhered to strictly.

Counsel stated that the respondent failed to adhere to the principles of fair procedures as the complainant was denied a properly focused disciplinary process, was not given all the required documentation and evidence, was not afforded the opportunity to present his case and was not permitted to cross examine witnesses and challenge their evidence.  Counsel cited the cases of Mooney v An Post 4 IR 288, Cassidy v Shannon Castle Banquets and Heritage Limited [2000] ELR 248, Redmond v Ryanair UD/123/05 and Shortt v Royal Liver Assurance 2008 IEHC 332 in support of its position that the respondent failed in its obligations to apply fair procedures.

Counsel also contends that the respondent did not act reasonably as it is required to do in respect of the dismissal and that the dismissal itself was disproportionate to the incident in question. Counsel cited the cases of Frizelle v New Ross Credit Union Ltd [1997] IEHC in respect of its point on reasonableness and the case of Bolger v Dublin Sport Hotel Limited UD 45/85 and Fitzpatrick v Superquinn Ltd UD452/1984 in respect of the proportionality of the sanction and consideration of a lesser sanction.

Counsel for the complainant concluded by stating that the losses incurred by the complainant were entirely attributable to the conduct of the respondent and that no conduct on the part of the complainant contributed to the dismissal. Counsel also contends that the complainant has shown that he made significant efforts to mitigate his losses and secure alternative employment.

Evidence

In his evidence, the complainant stated that he and his colleagues were at their break on site which requires a short journey in the van. After the break had ended, the complainant was not permitted entrance to the van by his colleagues and had to walk back to the work location. The complainant stated that he made his way to the internal roadway back to the work location and was subsequently hit by the van as it attempted to drive past him on the roadway. The complainant stated that he attended the local hospital where it was confirmed he had suffered a broken foot and ligament damage.

In respect of the disciplinary meeting of 18th April 2024, the complainant stated that he was informed that it was company policy to investigate any incidents such as these but it procedural and was “nothing serious”. The complainant stated that the meeting progressed like an interrogation and that he was not provided with any documentation or other evidence in relation to the incident. The complainant stated that he felt he was “interrogated and “sacked” as he was the “Labourer”.

Cross examination

It was put to the complainant in cross examination that he was in possession of a contract of employment which encompasses the staff handbook. The policies relating to the employment are within this documentation. It was also put to the complainant that he had a qualification in Health and Safety, yet he had breached the basics of safety procedures and common sense in respect of his efforts to step in front of the van to impede it entering the roadway to return to work which resulted in his injuries. It was also put to the complainant that his actions amounted to gross misconduct and a serious breach of trust which led to his dismissal.

Supplemental submissions

The complainant’s representative submitted additional information in respect of quantifying the complainant’s loss of earnings. The complainant had approximately 9.5 weeks of unemployment following his dismissal. He then commenced a position for 13 weeks before working for three weeks as an agency worker. He then commenced a full-time position in his current employment. The complainant contends that the losses attributable to the dismissal amount to €16,037.45.

The Applicable Law

Section 6(1) of the Unfair Dismissals Act, 1977 provides as follows:

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.

Section 6(4)(b) of the Unfair Dismissals Act, 1977 provides as follows:

(4) 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) not relevant…….

(b) the conduct of the employee,

Reasonableness

Section 6(7) of the Unfair Dismissals Act, 1967 at relevant part provides as follows:

6(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so—

(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and……..

The respondent contends that it acted reasonably in dismissing the complainant in accordance with Section 6(4)(b) of the Unfair Dismissals Act, 1977 and that it in the circumstances of the complaint the dismissal of the complainant was the proportionate sanction to the incident having considered the matter in totality.

I note that 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.”

Gross misconduct

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.

Mitigation of Loss

The complainant was requested to furnish additional information post hearing in respect of his quantified loss of earnings following his dismissal and the efforts he made to mitigate those losses through job applications. The additional information was due to be submitted within 14 days of the adjudication hearing which was held on 28th November 2024. The additional information was not received until March 2025. In the supplemental submission, there is a small number of job applications which the complainant submitted since his dismissal and further details in respect of the period of time the complainant was in receipt of payments from the Department of Social Protection (DSP). Since April 2024, there were only two different roles that the complainant held until his new current employment commenced on 4th November 2024. On this issue I am not satisfied that the complainant made efforts to mitigate his losses to the required level.

I also note the case of Coad v Eurobase UD/ 1138/2013 where the Employment Appeals Tribunal took into consideration the efforts of the claimant to mitigate his losses and found that that the efforts did not meet the standard set out by the Tribunal in Sheehan v Continental Administration Co Ltd (UD 858/1999) where the Tribunal stated that:

“a claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work. It is not enough to inform agencies that you are available for work nor merely to post an application to various companies seeking work ... The time that a claimant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss."

Contribution

The complainant’s contribution to his dismissal arises from his actions on the 16th April 2024. From reviewing the CCTV footage, it appears that the complainant is trying to get to the roadway before the van and when the van arrives on the roadway, the complainant appears to try and impede it from continuing and in the process, the complainant is knocked down and suffers a broken foot. It is clear from the CCTV footage that the complainant is acting precariously and trying to get in the vans way to prevent the van moving forward. In my view, the only possible conclusion is that the complainant put himself in that dangerous position which is even more surprising given his experience and qualifications in matters concerning health and safety in the workplace. Accordingly, I find that there was significant contribution on the complainant’s part to his dismissal.

Conclusions

Having considered the submissions and evidence of the parties to this complaint, I find that the complainant was unfairly dismissed. The respondent carried out its disciplinary process and gave the complainant its decision that same day. I find that this was not the actions of a reasonable employer as in my view a reasonable employer would have taken more time to consider the dismissal and contemplate other disciplinary sanctions that may have been more appropriate such as, inter alia, a final written warning. The complainant was dismissed without notice for gross misconduct and in my view, while his actions were clearly negligent and unsafe, I find that they were not at such a level that warranted summary dismissal. Accordingly, I find that the dismissal of the complainant was disproportionate to the incident. I further note that the complainant did not exercise his right of appeal and contributed significantly to his own dismissal. In conclusion, I find that the complainant should receive a modest level of compensation of €4,000.00 which I consider to be just and equitable in all the circumstances of the complaint.

The complaint is well founded. The complainant was unfairly dismissed. The respondent is directed to pay the complainant €4,000.00 in compensation.

Unfair dismissal, gross misconduct