Complainant

Respondent

Parties

Gerard  Roche

GMC Civil & Mechanical Engineering Ltd

Representatives

SIPTU

 Construction Industry Federation

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-00071254-001

02/05/2025

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00071254-002

02/05/2025

The respondent provides services to the utility and civil engineering industries. Gerard Roche, the complainant was employed as Fitter on July 15th, 2017, with another company. He transferred to the respondent by way of TUPE in 2021. The respondent says he was not unfairly dismissed.

On February 12th, 2025, the complainant was involved in a road traffic accident in a company van. The incident was recorded on integrated dash cams. Once a company vehicle is in an accident an alert is sent through the ‘dash cam’ to the Plant and Transport Department. This is based on the G force of the accident registered through the integrated system.

Once an accident is registered with the Plant and Transport Department, an incident report is required. The accident is also notified to the Human Resources Department for employee management. The accident of February 12th  was the third accident involving the complainant within the previous two years.

On February 14th,hewas invited to attend a meeting with Stephen Keatinge, HR Manager. The email was titled “Request to Attend Disciplinary Hearing”.

Mr Keatinge was very clear in his correspondence stating, “This hearing has been arranged to discuss your alleged conduct, specifically your involvement in a road traffic accident on 12th February 2025”.

The complainant should have been aware that this was a disciplinary hearing and what the allegations were to him from the invitation. He had previously attended disciplinary meetings.

On February 18th, the complainant attended the hearing during which he was afforded the time to give his version of events. He was offered to have a representative which he refused. The meeting was chaired by Mr Keatinge and that he was the sole decision maker.

During the hearing the complainant admitted that he drove the van in an unsecure manner, saying that the reason was because he thought he saw a child with the corner of his eye. He then contended that this child was actually a dog. Mr Keatinge allowed the complainant to watch the dash cam footage at this meeting.

It was put to the complainant by Mr Keatinge that he had been involved in three vehicle accidents withing a 14-month period, in respect of which he did not provide any mitigating evidence or justification. There was a written warning issued for these incidents.

The complainant had also been issued a final written warning on February 22nd,  2024 for a previous incident which was to remain on the complainant’s file for twelve months, until  February 22nd  2025. He did not appeal this.

At the time of the last disciplinary hearing concerning the incident of 12th February 2025, the final written warning was still active on the complainant’s file.

Mr Keatinge issued his determination on February 19th and informed the complainant of his right to appeal. He considered other sanctions than dismissal, however, he felt that he could only extend a final written warning where there was exceptional circumstances.

On February  26th, 2025 the complainant appealed the dismissal on the grounds of alleged breach of natural justice, mitigating factors & severity of the sanction.

The appeal hearing was held on March 28th, 2025, chaired by the MD Mr Shane McCloskey. The employee was represented by SIPTU. During the appeal hearing it was his position that the decision was biased, and the rules of natural justice were violated as he alleged that there was no evidence for lack of accountability or breach of trust. The Respondent’s position was  that the repeated conduct of negligence clearly constituted evidence for breach of trust and accountability.

The complainant submitted that due to his service and willingness to pay for the damage done, the company should have aimed to take corrective measures.

Mr McCloskey took this into consideration. In his determination he stated:

The lack of accountability and overall lack of concern shown to company property is made evident through the downplaying of the damage that was done to the vehicle. The dash cam footage shows that there is a lack of awareness for the safety of the public by driving down a footpath. It is also noted that in terms of lack of accountability that this is your third road traffic accident in the last 14 months. This has brought the company into disrepute with our insurers which as stated in the company policy, section examples of conduct, which may constitute gross misconduct, you have deliberately ignored safety rules contained in the Drivers Handbook by driving onto a footpath.

The above has resulted in a breakdown in the necessary trust between you as an employee and the company. GMC Utilities Group is a parent company to GMC Civil and Mechanical and therefore is under the same insurance policy resulting in affects to the Group as a whole when an incident occurs.

Mr McCloskey upheld the original decision to dismiss the complainant on April 3rd,  2025 with an outcome letter that was issued via post and email.

The Unfair Dismissal Acts, 1977-20 15 defines “dismissal” in relation to an employee as including the termination by the employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee.

In Bunyan v. United Dominions Trust (Ireland) Ltd [1982] ILRM 404, the Employment Appeals Tribunal (EAT) held that

 “[t]he fairness or unfairness of dismissal is to be judged by the objective standard of the way in which a reasonable employer in those circumstances and in that line of business would have behaved. The Tribunal therefore does not decide the question whether or not, on the evidence before it, the employee should be dismissed. That decision has been taken, and our function is to test such decision against what we consider the reasonable employer would have done and/or concluded”.

An Adjudication Officer should have regard to the reasonableness of the employer’s conduct in relation to the dismissal based on a determination of the range of responses which a reasonable employer could have taken having regard to the nature of the case and then a consideration as to whether the employer’s decision lay within that range.

The “band of reasonable responses” test was set out by Noonan J. in the High Court case of The Governor and the Company of Bank of Ireland -v- James Reilly (2015) IEHC 241, wherein he stated that the role of the decision maker is to decide whether the decision of the employer to dismiss the employee was reasonable having considered all of the circumstances of the complaint.

This was not the complainants first offence. He was on his third vehicular incident in a very short space of time. Further, the complainant was already on a final written warning. A typical outcome to further misconduct undertaken by an employee whilst on a final written warning is dismissal. This is well within the range of reasonable responses to the respondent and any employer.

As noted by Redmond

 “[t]he concept of fairness is located within a framework which accepts that the employer has the right to dismiss where this is necessary to protect its business interests. To that extent it adopts an employer perspective. At the same time, the law requires that employers should not remorselessly pursue their own interests. The employee’s interests must be considered as well. The function of fairness is to reconcile these interests.” (Redmond on Dismissal Law, 3rd ed., Bloomsbury Professional 2017 at [13.01]).

Reliance was also placed upon the dicta of Mummery L.J. in Foley -v- Post Office (2000) ICR 1283 and on the test  set out by the Court of Appeal in British Leyland UK Ltd v Swift [1981] IRLR 91 by Lord Denning MR at pg. 93 applied by Judge Linnane in Allied Irish Banks v Purcell [201] ELR 189:

“The correct 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 reasonably have 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.”

The dismissal of an employee when the employee was already on a final written warning was reasonable. It would be incorrect to say that every other reasonable employer would have retained him. The disciplinary procedure fully complied with fair procedures and natural justice.

In relation to the process itself, the Respondent refers to S.I. No. 146/2000 - Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures) which provides for the best practice in relation to the provision and operation of disciplinary procedures.

Reliance was also placed on Samuel J Frizelle v New Ross Credit Union[1997] IEHC 137.

The complainant was informed of the complaint against him in the invitation to the disciplinary hearing. This was clearly outlined in the invitation to the disciplinary. He had access to factual information from the dash cam footage and the decision to dismiss was reasonable and proportionate to the conduct of the employee, especially in light of the final written warning already received.

Fair procedures is not perfect procedures (Murphy v. College Freight Ltd, UD867/2007). The role of an Adjudicator is to establish if the process followed by the company conformed to the generally accepted standard of fairness and objectivity normally followed in like cases. A central consideration is whether any purported breach of due process endangered a fair hearing or a fair result (Shortt v. Royal Liver Assurance Ltd (2008) IEHC 332.

The respondent submits that generally, fair procedures require that details of any allegations of wrongdoing are put to the employee concerned, the employee is given the opportunity to respond to these concerns, the employee is given an opportunity to avail of the right to be represented, and the employee is afforded a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors, and circumstances.

Evidence of respondent

Stephen Keatinge, HR manager give evidence on affirmation

He confirmed that the complainant was a gas fitter who was an emergency first responder. The company has between 320 and 370 vehicles on the road, and the witness has no direct responsibility for the management of this fleet. It is regulated by means of an app for daily checks etc and data is sent from the ‘dashcam’ in each vehicle to a central control facility.

This technology has a G force register to record impact which can include excessive braking etcetera and as governed by collective agreement with the trade union.

A road traffic accident was brought to the attention of HR by transport management in this case which had resulted in damage to the tune of €10,000. The allegation was that the complainant was guilty of negligence in relation to the accident.

The complainant was fully aware of what the facts were, and a copy of the dash cam footage had been sent to him. He had previously been involved in a road traffic accident,  and he was given the right to representation. The company also observed his other rights and respect to a fair process having breaks etc.

The witness said that he did consider lesser sanctions but on the basis of the facts decided that termination was the correct sanction. He had no personal relationship with the complainant and relied exclusively on the dashcam footage.

In response to questions from the complainant’s representative he confirmed that the allegations related to the incident of the road traffic accident of which the complainant was fully aware.

Minimum Notice Complaint

The Respondent submits that the Act does not affect the right of an employer or an employee to terminate a contract of employment without notice due to the misconduct of the other party.

OnFebruary 12th 2025,whileondutyinacompanyvehicle,Mr.Rochewas pullingoutafterbeinginashop.Hehadonly twooptions,eitherreverseoutorcutoff onto thefootpath.Hethoughtthat sawachildoutofthecornerof hiseye,whichturnedouttobeadog.Inorderto avoid hitting the dog, Mr. Roche Inadvertentlyhita lamppost.

The company vehicle suffered damage,  for which the complainant offered to contribute but the company did not take him up on his offer.On February 18th  he attended a Disciplinary hearing with Stephen Keatinge, who was also the Investigator and two others.

It was stated in the minutes of the meeting that,

'The allegations will  be presented here today, and you will  be provided with the opportunity to respond to the allegations in full.  Thereafter, the hearing will be adjourned to allow all of the evidence to be considered before any decision Is taken regarding possible disciplinary action'.

We submit that the complainant  should have been clearly Informed of the charges against him and receive a fair hearing according to ordinary standards of fair play. He must have access to the general principles of Natural Justice and Fair Procedures (S.I. No.146/2000-IR Act).

This requires that details of any allegations or complaints are put to him, and that he has a fair and impartial determination of the Issues concerned. These principles may require that the allegations or complaints be set out in writing, that the source of the allegations or complaint be given or that the employee concerned be allowed to confront or question witnesses.

!In Frizelle v New Ross Credit Union Lt [1997] IEHC 137, Mr. Justice Fergus M. Flood sets out the legal principles, stating •where a question of unfair dismissal Is in Issue, there are certain premises which must be established to support the decision  to terminate employment lor misconduct",

The employee should be Interviewed and his version noted and furnished to the deciding authority contemporaneously with the complaint and again without comment. The decision of the deciding authority should be based on the balance of probabilities flowing from the factual evidence and in the light of the explanation offered.

The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee.

Put very simply, principles of natural Justice must be unequivocally applied.

The onus Is on the employer to not only that show that there were substantial grounds justifying dismissal but also that the organisation followed fair and proper procedures before the dismissal.

SI l46/2000 ( the Code of Practice on Grievance and Disciplinary Procedures)  clearly that the  onus Is on the employer to not only that show that there were substantial grounds justifying dismissal but also that the organisation followed fair and proper procedures before the dismissal.

The allegation of 'Gross Misconduct' is denied.

In relation towhat constitutes 'gross misconduct' we rely on the 'established jurisprudencein relation to dismissal law in this jurisdiction which takes a very restrictive view of what constitute gross misconduct Justifying summary dismissal.’

 This can be seen 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:

{Dismissal for Misconduct) .... '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'. (see UDD l718/Labour Court, DHL Express Ltd v Michael Coughlan).

Wesubmit therewasnotsufficient independence/impartialitybetween those deciding on the findingsof theInvestigation andtheir biased recommendationfora disciplinaryprocess.  the formulationand Initiationofanallegationandthose decidingthesanctionofdismissal.

Evidence of complainant

The  complainant gave evidence on affirmation. He confirmed that he had joined a predecessor company in 2017 and was transferred to the respondent in 2021.

In general terms he said he needs access to footpaths to carry out his role and on the day in question he thought he saw a child approaching and this caused the accident. He accepts that he had a crash. He apologized to the company and offered to pay for the damage.

He disputes that he was the recipient of a previous final written warning.

He  noted that a first appeal had been abandoned because the appeal hearer had suggested consulting Mr. Keatinge who was the original decision maker stop. He stated that he had not worked since the termination of his employment as he had been certified as unfit for work and had only made one application for employment in the interim.

I have considered all the relevant evidence that was laid before me, both before and in the course of the hearing.

There are three ‘pillars’ which guide the adjudicator to a decision in a complaint of unfair dismissal.

They are as follows.      

1.       Had the employer reasonable grounds to initiate disciplinary action and was it reasonable for them to do so?

2.       Secondly, was there a fair process throughout which the appellant’s rights were fully respected and vindicated?

3.       Finally, was the sanction imposed reasonable having regard to all the circumstances.

The complainant has referred to these principles extensively in its submission.

The onus under the Act falls on the employer to justify the dismissal.  In order for it to be fair there must be some significant grounds to justify disciplinary proceedings or other actions against the employee related to performance or conduct.

Secondly, in our employment rights system there are well established procedural obligations placed on an employer who is carrying out disciplinary action in order to protect the rights of the employee or other parties affected and ensure that justice is done.

These are not particularly onerous and are generally well known. They are referred to by such terms as fair procedure and natural, or constitutional justice.

Many, if not most cases are argued on the basis of key facts not being in dispute and the outcome normally turns on alleged inadequacies in the procedures and/or the appropriateness of the sanction which must fall within what is described as a range of reasonable responses by the employer.

The criteria to be applied by and Adjudicator were set out on the oft cited EAT decision in Looney and Co v Looney UD843/194 and the view of Dr Mary Redmond to the same effect that;

It is not for the EAT to establish the guilt or innocence of the claimant nor is it for the EAT to indicate or consider whether we, in the employer’s position, would have acted as it did in its investigation or concluded as it did or decided as it did, as to do so would be to substitute our own mind and decisions for that of the employer.. Our responsibility is to consider against the facts what a reasonable employer in his position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s actions and decisions are to be judged’.

As will be clear from the text this does not entirely rule out intervention by an Adjudicator but sets the standard to be applied as the actions of ‘what a reasonable employer in his position and circumstances at that time would have done…’

That is the standard I will apply.

Turning to the first of these principles, the allegations made against the complainant were serious.

 There was a motor vehicle accident in which significant damage was done to a company vehicle. It was not the first time the complainant had been involved in an accident. It is at this next stage that procedural obligations kick in.

There was controversy over whether a previous accident had resulted in a warning to which I will return.

The complainant has criticised the preliminary stages of the process on a number of grounds.

He says that he was not given sufficient detail of the nature of the ‘charge’ he was facing and that in any event it had not been investigated properly.

He also criticises the role of Mr Keatinge as lacking in impartiality and/or of having engaged in conflicting roles as investigator and decision maker.

 The February 14th email was titled “Request to Attend Disciplinary Hearing” and included  a statement that, “This hearing has been arranged to discuss your alleged conduct, specifically your involvement in a road traffic accident on 12th February 2025”.

The complainant says that there was no proper investigation preceding the hearing.

The obligation that arises in such cases is to establish the facts of the matter in a fair manner and ensure that the person is aware of what allegation he will be facing. In addition, he should be given an indication of the gravity of the matter and the possible range of sanctions he might be facing, an important consideration to which I return below.

There is no obligation to pass through an investigation stage for its own sake when the facts of an incident are known to both sides and are not in dispute. An investigation is no more than the gathering of evidence, and it is a matter for the disciplinary hearing to hear any further argument in rebuttal or mitigation.

Similarly, Mr Keatinge in receiving the relevant information from the fleet management section and convening the disciplinary hearing is, in that pre-hearing stage engaged in an administrative role. He has not prejudged the issue by setting up the disciplinary hearing and setting out the issues which will be dealt with there.

I do not accept the complainant’s specific point on this aspect of the matter, subject to what follows about the actual text of the notice of the disciplinary hearing. Mr Keatinge was not both investigator and decision maker.

Turning to the notice of the hearing, there is an element of ambiguity about it where it states.

‘Having concluded our discussions, the hearing will be adjourned to allow all of the evidence to be considered before a decision is taken regarding possible disciplinary action’.

This is very odd language to describe what actually happened or normally happens in a disciplinary hearing. The word ‘adjourned’ strongly implies that there would be a resumption, especially when taken with what follows it, ‘that the evidence would be considered before any decision would be taken’.

Not too many people familiar with disciplinary proceedings would describe what happens there as ‘discussions’, as it creates the impression that the process is not adjudicative or final, so the imprecision of the wording of the letter leaves a lot to be desired.

However, it gets a lot worse.

At the hearing, the complainant chose not to be represented, and, while this is an option that is often exercised, something  quite significant turns on it on the facts of this case.

In his evidence the complainant accepted that he may have been too complacent in approaching the hearing as he did not consider that his job was at risk.

Mr Keatinge, in his evidence confirmed that the complainant had not been told prior to the hearing that he was facing a charge of ‘gross misconduct.’ The complainant was very clear in his evidence that had he known this he would have definitely ensured he was represented by his union.

I regard this as a fatal flaw in the process.

A ‘charge’ of gross misconduct is the most serious that  can be levelled at an employee, and they are entitled to be put on notice of it explicitly. It is not open to the Decision Maker, in his reflection on the hearing,  to conclude that the facts before him constitute gross misconduct and for the first time air this in the outcome letter.

In the report of the Disciplinary Hearing the following appears. Towards the end of the meeting the complainant was told that he was being put on paid leave. He responded, ‘So it doesn’t look good for me,’ to which Mr Keatinge replied, ‘I am not making any decision at this point.’

While he would have been correct not to commit to any conclusion had the complainant been fully advised of the gravity and nature of the charge he was facing, and had he been given the opportunity to specifically address it, the fact that the complainant had to ask this question tells its own story. Mr Keatinge’s non-committal response compounds this omission.

This lacks transparency, and specifically fairness to an unacceptable level.

Indeed, the complainant was not told specifically in the notice of the hearing that he was at risk of disciplinary sanction at all except as set out above; that following the ‘discussions’ there would be an ‘adjournment’ ‘before any decision is taken regarding possible disciplinary action.’ (Underlining added).

Interestingly, in the respondent’s submission above it lists a number of the requirements for a fair hearing but this requirement to specify the exposure to disciplinary action and the range within which it would lie is conspicuously missing.

There was no reference at any stage in the meeting to any ‘charge’ and specifically the possible exposure of the complainant to one of gross misconduct and this is an unacceptable and fatal departure from the requirements of fair procedure.

(In passing, while it is not necessary to do so, it is far from clear to me that the actions complained of constituted ‘gross’ misconduct, as submitted above by the complainant. I am at a loss to know why employers expose themselves to the risk involved in mis-classifying something as ‘gross’ when ‘serious’ would suffice.)

There is then the issue of the contested final written warning.

The complainant has insisted that he never actually received this warning.

While I am not required to make a determination on this, I found it to be somewhat lacking in credibility. It would be odd that the only document in a stream of successful correspondence between the parties that failed to land was the written warning and I was not entirely convinced by the complainant’s protestations in that regard.

Nonetheless, while this issue did not arise at the disciplinary hearing it did at the appeal. The Appeal Hearer was aware that the complainant was raising an issue about whether he had received the warning.

Again, the complainant’s position was unconvincing (reading the minutes) as to whether he had received the warning. The appeal Hearer asked if the warning had been issued to him and he replied, ‘I don’t have it on my files anyway’.

But, once he was on notice of it, the appeal hearer had a clear obligation to determine what the factual position actually was and show on the record that he had done so, especially if he was going to rely on it in any way to uphold the sanction.

Even if he had concluded that the complainant had not received the warning and decided to set it aside, he might well have concluded that the accident justified termination of the employment, (apart from the points I have made above). But he had a clear obligation to make a determination on the complainant‘s submission that he may never have received it. He simply chose to ignore it.

Taking all these deficits in the process together, they are significant and go to the root of whether the process was fair. I find that the flaws in the process fell below a minimum standard necessary  for the requirements of a fair procedure and accordingly the dismissal was unfair.

The complaint of unfair dismissal is upheld.

In his evidence the complainant confirmed that he was not available for work for medical reasons and that he had made only one application for a job in nine months. Accordingly, noting the authority in the Act at section 7 to have regard the justice and equity of the case  and to all the circumstances I make no finding of compensation.

On foot of my conclusion in relation to the dismissal I find that the complainant was entitled to a notice payment in respect of complaint CA-71256-002.

The complaint of unfair dismissal CA-00071256-001 is upheld.

Noting the authority in the Act at section 7 to have regard the justice and equity of the case and to all the circumstances I make no award of financial compensation.

Complaint CA-71256-002 is well founded and I award the complainant four weeks’ pay in the amount of €4,000.00.

Unfair Dismissal, Minimum Notice