Complainant

Respondent

Parties

Tony  Molloy

Kaefer Limited

Representatives

Mr. Andrew Turner, Hamilton Turner Solicitors

Mr. Ger Connolly,  Mason Hayes & Curran LLP

Act

Complaint Reference No.

Date of Receipt

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

CA-00065692-001

29/08/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00065692-002

29/08/2024

The Complainant commenced employment with the Respondent on 17th October 2016. The Complainant was a full-time, permanent member of staff, in receipt of an average weekly payment of €1,100. The Complainant’s employment was terminated by the Respondent on 29th May 2028.

On 29th August 2024, the Complainant referred the present complaint to the Commission. Herein, he alleged that the dismissal of the Complainant was procedurally and substantively unfair. In particular, he submitted that while he accepted that he committed wrong-doing, the sanction of dismissal was entirely disproportionate to the wrong-doing alleged and that the process related to the same was pre-determined by the Respondent. In denying these allegations, the Respondent submitted that the dismissal of the Complainant arose through third party request and that they had done all within their power to retain him as an employee.

A hearing in relation to this matter was convened for, and finalised on, 22nd April 2025. This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced during the hearing.

Both parties issued extensive submissions in advance of the hearing. Said submissions were expanded upon and contested in the course of the hearing. The Complainant gave evidence in support of his complaints while the Respondent’s operations manager gave evidence in defence. All evidence was given under oath or affirmation and was opened to cross examination by the opposing side.

At the outset of the hearing, the representative for the Complainant confirmed that the present matter would proceed under the Unfair Dismissals Acts and that the other complaint was not going to be pursued. No other issues as to my jurisdiction to hear the complaint were raised at any point of the proceedings.

By submission, the Respondent submitted that the Complainant was employed as a mechanical technician on a site managed by a primary client of the Respondent. The Complainant had approximately 16 years of experience in similar roles and was fully trained for his duties, having worked on the site since the beginning of 2024 and having completed a secondment with the client in question.

As part of the Respondent’s contractual arrangement with its client, the Respondent, via the Complainant and his team, completed certain mechanical works. As part of this arrangement, the Respondent’s client issues “permits” outlining specific forms of mechanical work which the Respondent is required to complete to an approved set of standards.

On the 26th April 2024, and on subsequent days, the Complainant refused to accept responsibility for permits and carry out his duties as a permit holder, despite repeated requests from his supervisor and other members of management. He claimed his refusal was due to the disciplinary proceedings initiated against a colleague and a belief that he was entitled to additional compensation to perform the permit holder role. In this regard, the Respondent noted he had no basis for either claim and that a core part of his contractual duties was to accept permits and complete same to the standard dictated by their client.

On 15th May 2024, following his continued refusal to perform duties, the Complainant was suspended from work with immediate effect. Later that day, the Complainant emailed the operations manager to apologise for his unacceptable and unprofessional behaviour, acknowledging that his refusal was an overreaction to a colleague's termination and requesting a chance to return to work and rectify his actions.

A formal disciplinary meeting was duly scheduled for 23rd May 2024. However, on the morning of the meeting, the Respondent received a letter from its client issued pursuant to a contractual clause, demanding the Complainant be removed from site on an indefinite basis. The Respondent had previously asked the client to reconsider this action, suggesting a performance management review as an appropriate form of outcome. Nonetheless, the client declined and insisted that the Complainant be removed.

Given the client's directive, which the Respondent was contractually obliged to follow and which made it impossible for the Complainant to perform his role on site, the Respondent did not pursue the disciplinary process against the Complainant. Rather, they dismissed the Complainant on the basis of some other substantial reason, in this case being that their client demanded that he be removed from the site.  This outcome was duly communicated to the Complainant by way of correspondence dated 29th May 2024.

In evidence, an Operations Manager for the Respondent stated that their preferred outcome from the disciplinary policy would have been a sanction short of dismissal and the imposition of a performance improvement plan. Notwithstanding the same, she submitted that the client's correspondence and their reliance on a pre-agreed contractual term essentially forced their hand. As a gesture of goodwill, the Respondent increased the Complainant's notice pay from four weeks to eight weeks. This outcome was subsequently appealed by the Complainant in accordance with the Respondent’s internal procedures and was duly upheld in favour of the Respondent.

By closing submission, the Respondent stated that the dismissal was fair on the grounds of some other substantial reason as permitted by the impleaded Act. In this regard, they submitted that the direction of their client was unambiguous and based on a clear contractual term. In the alternative, they stated that should the dismissal of the Complainant be found to be unfair, they submitted that the Complainant significantly contributed to his dismissal by virtue of his refusal to follow reasonable management instructions in the acceptance of permits.

In evidence, the Complainant stated that he was employed by the Respondent as a mechanical fitter from 17th October 2016. The Respondent itself is engaged by a third-party client, which operates a large gas production facility on the west coast of Ireland.

In early 2023, the Respondent amended its procedures in manner by which it administered work to persons on the Complainant's team. In this regard, the Respondent would provide a permit for certain works to be undertaken on the client's facilities. This permit would then be taken up by members of the Complainant's team, and the works in question would be completed and subsequently reviewed.

In April of 2024, the Complainant became concerned when a colleague, who worked in the same role, apparently suffered disciplinary sanction as a consequence of a defect in work undertaken on such a permit. This caused the Complainant a great amount of concern, as it appeared to him that liability for any defect in the standard of work completed rested with the permit holder, regardless of the cause of the defect itself.

On foot of the same, the Complainant stated that he would no longer be taking these permits from the Respondent, as he harboured deep concerns about his own liability in respect of these alleged defects. In evidence, the Complainant stated that his refusal to take these permits in no way hindered the Respondent’s ability to provide services to their client. In this regard, he stated that he was still able to work as part of a team and complete the duties assigned to him by the Respondent. However, he stated that he would not put himself in the position of being the permit holder to whom liability might attach on account of any purported defects. In this regard, the Complainant stated that he set out his concerns and reasons for refusing to take permits to management at the relevant time.

Despite making this position clear, the Complainant's line manager continued to request that he take up permits without addressing the underlying issues regarding the Complainant’s refusal to do so. On 14th May 2024, the Complainant was taken aside by a member of management and asked to reconsider the approach that he was taking. The Complainant agreed at this point to reconsider his approach but stated that he would need some clarity as to the issues that he had raised regarding liability in respect of alleged defects. The Complainant stated that he would speak with members of the Respondent's operational team on the coming Monday to discuss same.

The following day, 15th May 2024, a number of staff members on the Complainant's team had been assigned to non-urgent duties, and some had been sent off-site for training. Later that day, the Complainant was called up to see a member of the management team of the Respondent, who duly informed him that he was to be suspended on foot of his failure to follow reasonable management instructions.

Following this suspension, the Complainant emailed an apology to the Respondent. This apology demonstrated wholehearted remorse for the Complainant's prior position regarding his refusal to take out permits and stated that this was not a position that he intended to adopt in the future. At this point, the Complainant was concerned about his ongoing employment and believed that his apology in regard to these matters would resolve these issues.  However, on 17th May 2024, the Complainant received correspondence to the effect that his suspension would remain ongoing pending the completion of disciplinary procedures.

By submission, the Complainant stated that his suspension was penal in nature. In this regard he stated that suspension was in no way justified in circumstances whereby he had apologised for his previous actions and unequivocally set out his intention to accept permits in the normal course of his duties.  He had not engaged in any active misconduct and that he was in no way represented a danger to the Respondent or its client.

Thereafter, a disciplinary hearing was convened for 22nd May 2024. By submission, the Complainant submitted that a number of allegations were made against him during this meeting that were not set out in the invitation to the disciplinary hearing. The Complainant's refusal to sign his performance review was raised as an issue against him, and the Complainant's manner in which he questioned his supervisor was also referenced. The Complainant received no prior notice that these issues would be considered as part of the disciplinary hearing and stated that he was effectively ambushed by these allegations. He submitted that there was also a further vague allegation that the Complainant's behaviour had sometimes “crossed the line”. The Complainant stated this allegation was completely unsubstantiated and vague and was incapable of being effectively challenged.

By correspondence dated 29th May 2024, the Respondent stated that the Complainant had been dismissed from his employment. This correspondence stated that the Complainant was dismissed for “some other substantial reason”. In that correspondence, the Respondent stated that their client had demanded that the Complainant be removed from the site and stated that they were unable to find a role for the Complainant on alternative work sites.

In this regard, the Complainant submitted that the operative reason for his dismissal was to facilitate the Respondent in saving face with their client, and not as a consequence of any of his actions in the course of his employment. In this regard, the Complainant stated that the outcome of the disciplinary hearing was predetermined, as were the purported efforts of the Respondent to find an alternative role. In this regard, the Complainant stated that numerous evidentiary points support his complaint that his dismissal was predetermined. In this regard, he referenced the conversation with his line manager the day before the commencement of the disciplinary procedure, requesting that he reconsider his position. He also stated that his notice period was increased during the disciplinary process, which again pointed to the fact that the Respondent had predetermined his dismissal prior to the completion of the process.

Having regard to the accumulation of the foregoing points, the Complainant submitted that this dismissal was unfair for the purposes of the impleaded Act and stated that his complaint should be deemed to be well-founded.

Regarding the present case, the Complainant has alleged that his dismissal was unfair on numerous grounds. In particular, he alleged numerous procedural breaches on the part of the Respondent and submitted that the sanction of dismissal was disproportionate given the wrong-doing alleged. By response, the Respondent submitted that the dismissal of the Complainant did not occur on the grounds of misconduct but stated that they were obliged to remove the Complainant from their client’s site on their instruction. In circumstances whereby no other work was available for the Complainant, they submitted that they had no choice but to terminate his employment on the basis of “other substantial grounds” as provided for in the legislation.

In this regard, Section 6(1) of the Unfair Dismissals Acts provides that,

“…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)a of the Acts expressly list a number of grounds on which an employer may demonstrate that a dismissal was “fair” for the purposes of the Act. While Respondent normally seeks to rely on these grounds in defence of an allegation of unfair dismissal, a further defence is afforded by subsection 6. This provides that,

“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.”

This provision regarding “other substantial grounds justifying the dismissal” is commonly relied upon in the event of a third-party exerting pressure regarding the removal of an employee from their site. In this regard, third parties are generally seen as having control of the persons that an employer assigns to their site and may request that such persons be removed, often without any form of investigation or due process on their part.

Notwithstanding the foregoing, a series of authorities has established on onus on an employer to consult with the third party, to advocate on behalf of their employee (if required) and to consult with the affected employee regarding other roles that might be available within the organisation.

In the matter of Merrigan v Home Counties Cleaning Ireland Ltd UD904/1984 the Employment Appeals Tribunal set out the obligations listed above and found that,

“The job of an employee cannot be at risk on the mere whim of a third party to the employment relationship.”

Thereafter, in the matter of Derek Hevey v Provincial Security Services Ltd. UD447/2011, the Tribunal found that a Respondent,

”…will be expected to show that it has conducted an investigation into the reasons for the refusal of the respondent’s customer to have the claimant work on the site.”

In the matter of An Employee v An Employer UD205/2010, the Tribunal held as follows,  

“Every case must be considered in the light of its own particular facts. The dismissal of an employee brought about through pressure from third parties whether customers, clients, fellow employees or others may be justified provided the employer acts fairly and handles the procedure and investigation properly”

Regarding the present case, it is apparent that the Complainant formed the view that the permit process, as directed by the Respondent, conferred an unacceptable level of liability upon him in the performance of his duties. Following same, and in consideration of disciplinary procedures brought against a colleague, the Complainant commenced a process of refusing to accept such permits until his concerns were properly addressed. In response, the Respondent formed the view that this form of protest constituted a failure to follow a reasonable management instruction and commenced an investigation under their disciplinary procedure in relation to the matter.

Upon receiving the letter of suspension regarding this issue, the Complainant issued a fulsome apology for his actions to date, accepting that his actions regarding the permit system were unacceptable. He sincerely apologised for his refusal to obtain these permits and stated unequivocally his intention to comply in the future. Following this, the Respondent continued with the disciplinary process, albeit the evidence of the Respondent's witness was that this apology was to be taken into consideration as part of the overall factual matrix. The evidence of this witness was that the Respondent's preference at this point, given the Complainant had apologised in such a wholehearted manner, was that the Complainant would receive some form of warning in line with the disciplinary policy and thereafter be placed on a performance improvement plan. Had this eventuality occurred, matters would have proceeded in the normal course, and it would be assumed that the Complainant would have continued his employment without any further interruption.

As matters transpired, the Respondent's client (and it is noted that this client is their primary source of work in this area) stated that they did not wish for the Complainant to be assigned to their site on an ongoing basis. In this regard, the Respondent's client relied on a contractual provision, stating that an employee in question could be removed if, in the reasonable opinion of the client, the employee engaged in incompetent or negligent performance of their duties, engaged in activities contrary to the client's interests, or did not conform with relevant health and safety procedures. This position was conveyed informally on 17th May 2024 and was formally communicated by correspondence dated 23rd May 2024, the day prior to the disciplinary meeting.

Following this communication, it is apparent that the disciplinary process engaged by the Respondent was converted into a process whereby this correspondence was considered and the potential ramifications for the Complainant discussed. While the Respondent owes a duty to engage with the Complainant in relation to these matters, the authorities cited above demonstrate that the Respondent also has a duty to advocate on behalf of the employee and request detail of their client's reasoning for seeking removal. In this regard, it is apparent that the client had a conversation with the Respondent's senior management, whereby they unequivocally stated their view in relation to these matters. Thereafter this third party issued correspondence, formally setting out their decision. In this regard, it is apparent that the Respondent simply accepted the client's refusal to remove the Complainant at face value and did not appear to advocate on his behalf. While a witness for the Respondent did state that she spoke with a representative of their client in this regard, such representations should be made in writing and following consultation with the affected employee. As matters stand, the only correspondence relating to this issue emanated from the Respondent’s client, with no apparent attempt on the part of the Respondent to influence the findings or advocate on behalf of their employee.

Having regard to the foregoing, I find that the Respondent cannot rely on the provision of Section 6(6) of the Act in relation to “other substantial grounds” and, as a consequence of the same, I find that he was unfairly dismissed.

Notwithstanding the foregoing, I note that Section 2(F) of the Acts allow a consideration of the “extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.” In this respect, it is clearly apparent that the Complainant viewed his own behaviour as unacceptable and in consideration of the factual matrix presented by the parties, it is clear that these issues directly contributed to his dismissal.

In consideration of the accumulation of the foregoing points, I find that while the Complainant was unfairly dismissed within the meaning of the Act, his conduct contributed to the dismissal.

CA-00065692-001 Complaint Under the Unfair Dismissals Acts

I find that the Complainant was unfairly dismissed within the definition of the Act.

In relation to redress, Section 7(1) empowers me to order re-instatement, re-engagement or a payment of compensation to be made to a successful Complainant under the Act. Given that neither party wished for the employment relation to recommence, compensation is the most appropriate form of redress in this circumstance.

In calculating such compensation, regard must be had to the Complainant’s attempts to mitigate his losses. In this regard, the Complainant stated that he incurred significant losses following his dismissal. The Complainant stated that while he secured alternative work shortly following his dismissal, the same was intermittent in nature and at a much lower rate of pay to his former employment. The Complainant submitted that he secured full-time alternative employment approximately five months following his dismissal. Again, the Complainant submitted that this employment was at a much lower rate of pay and that he suffered and continues to sufffer an ongoing loss of earnings on foot of the same.

Having regard to Complainant efforts to mitigate his losses following dismissal, and in consideration of his own contribution to his dismissal, I award him the sum of €10,000 in compensation for the breach of the Act.

CA-00065692-002 Complaint Under the Safety, Health and Welfare at Work Act

This matter was not pursued and is deemed to be not well-founded.

Some Other Grounds, Advocate, Procedure