UDD2544

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00049258 (CA-00060497-001)

BACKGROUND:

The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 18 April 2024 in accordance with Section 8A of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 26 November 2025.

The following is the Decision of the Court:-

DECISION:

1Background to the Appeal

This is an appeal by Mr Golczewski (the Complainant) against Adjudication Officer’s Decision ADJ-00049258 CA-00060497-001 given under the Unfair Dismissals Acts 1977 to 2015 (the Act’s) in a claim against his previous employer ISS Ireland Limited (the Respondent) that he was unfairly dismissed.  The Adjudication Officer held that his complaint was not well founded.

The complaint was lodged with the WRC on 12 December 2023, appealed to the Labour Court 19 April 2024 and a hearing was held in Galway on 26 November 2025. 

The Complainant commenced work with the Respondent in September 2022 following a transfer of undertakings having previously worked for a different company since 2013 at that location.   He was employed at weekends as a night shift janitor. The Complainant was dismissed for gross misconduct on 30 November 2023. Dismissal is not in dispute.

At the commencement of the hearing the Complainant indicated he wished to proceed by way of submission and not sworn evidence.

2 Summary of Respondents submission

The Respondent submitted that it provides cleaning services to third party pharmaceutical companies. An issue arose in relation to procedures that have to be followed in terms of cleaning certain areas of the plant where the Complainant worked.

On 1 November 2023 the Complainant was suspended on full pay to allow a formal investigation take place into alleged breaches of procedure. There were three allegations a) failure to clean named areas, b) not completion of mandatory documents in line with Good Documentation process (GDP) and c) falsification of logbook records on 29 October 2023 in respect of tasks due to be completed in a named area.

By letter of same date, the Complainant was invited to attend a formal investigation on 4 November 2023. The letter set out the allegations and identified the relevant areas of the company disciplinary process. It identified who would be at the meeting and informed him of his right to be accompanied by a trade union representative or a work colleague. The Complainant attended the investigation meeting and signed to confirm that he was happy to proceed without a union representative or a colleague present.

At that investigation meeting he accepted that in June 2023 after the transfer he had been issued with a letter of concern for failing to complete certain tasks. The letter also clarified what tasks were assigned to him. It was put to him that on 29th October 2023 he had failed to carry out a reasonable request by his line manager to carry out these tasks. The Complainant stated that he did carry out the tasks, but he forgot to sign the log sheets. He queried why he was being assigned those tasks. He confirmed that on the date in question he had signed over another employee’s initials on the logbook and that he had signed the logbook without doing the required work.

The final investigation report was issued to the Complainant on 14 November 2023 along with a letter confirming that there was a case to answer, a number of enclosures were attached to the letter including letter of transfer, his contract, letter of concern, training records, log and cleaning records for the period under investigation.

On 17 November 2023 he was invited to attend a disciplinary hearing and informed of the right to be accompanied, and that if conduct was found to be gross misconduct the future of his employment with the company was at risk. The Complainant attended the disciplinary hearing without representation and confirmed that he was happy to proceed. The Respondent had a member of staff present who could translate into the Complainant’s native language.

Following the disciplinary hearing on the 22 November 2023 the notes of the hearing were sent to the Complainant, and he was invited to provide any additional information that he wished to add.

On 20 November 2023 the outcome of the disciplinary hearing was conveyed to the Complainant by registered post advising that his behaviour amounted to gross misconduct and he was dismissed with immediate effect. The letter informed him of his right to appeal and the timeline for doing so. No appeal was lodged.

The Respondent submitted that they had complied with the rules of natural justice when carrying out the investigation and disciplinary procedure. The Complainant was provided with every opportunity to explain his side of the story. The Complainant had been employed on site since 2013 and was fully aware of the importance of complying with the protocols and procedures. The Respondent opened the cases of JVC Europe LTD v Panisi [2011] IEHC 279 and Governor and the Company of Bank of Ireland v James Reilly [2015] IEHC 241 in support of their position that fair procedures were followed.

3 Witnesses for the Respondent

 Mr Kevin Keegan People and Culture Business Employee Relations HR informed the court that he was with the Respondent since July 2018.   He carried out the investigation into the allegations against the Complainants.

It was his evidence that he issued the invite and terms of reference to the investigation meeting. He confirmed that the Complainant was provided with all the relevant documents in advance of the meeting.

At the meeting on 4 November 2023, he was advised of his right to representation, but he confirmed he was happy to proceed without representation. The Witness confirmed that the complainant and not requested that any witnesses be questioned. He was provided with the outcome which recommended that the issues be moved to the disciplinary process.

Under cross examination by the Complainant, he confirmed that he did not recall the complainant mentioning a witness, but he did recall being asked to talk to his work colleagues. However, that was in the context of character references and was not relevant to the investigation.

Mr Heavey Head of People and Culture confirmed to the Court that he joined the Respondent in 2019 and is in his current post since 2022. He chaired the disciplinary hearing. He wrote to the Complainant and invited him to the hearing and advised him that he could have representation. The Complainant attended the disciplinary hearing on his own. There was a member of staff present who could translate for the Complainant if required. 

The Complainant confirmed that he had received and understood the letter inviting him to the disciplinary hearing. He was provided in advance with the outcome of the investigation and a copy of the company disciplinary policy.

Mr Heavey stated that he had concerns around inconsistencies in the Complainant’s evidence.  In the dismissal letter he set out the concerns he had and the things he had taken into account and why. The main concerns were failure to follow managers instruction and falsification of paperwork which could have very serious consequences for the client company.  The minutes of the disciplinary meeting were issued and the Complainant by return email made some comments that were included in the final notes.

Mr Heavey stated that he considered options other than dismissal, but demotion was not an option and there was no suitable alternative site in the region. It was his evidence that he did not believe that the Complainant understood the seriousness of his actions even though it had been explained to him. He did not accept the seriousness of his actions or show any remorse. They could not leave him on the site or risk moving him to another site so the only option he felt he was left with was dismissal.

4 Summary of Complainants submission

The Complainant in his submission stated that following the transfer of undertakings the time allocated for his tasks was changed and he was required to carry out extra tasks. He believed that his tasks should not have been changed and should have remained as they were before the TUPE.  The Complainant believed that he was entitled to a notice period and to redundancy payment.  The Complainant submitted that during his time at the plant he always carried out the same tasks. After the Respondent took over, he was given many different tasks that he didn’t believe were part of his terms and conditions of employment. It was his submission that the tasks that were assigned to him although they were cleaning tasks were unreasonable and collided with his sector of work. He believed that he was being asked to do other people’s work. He felt he had to do his original tasks and the tasks assigned to him and that assigning different tasks was violating his terms and conditions of employment. 

In respect of the phone call he received from Mr Korejwo, he received that call outside of work hours whilst he was driving and when he was asked about whether he had completed specific tasks he wasn’t sure what was being referred to as the rooms were being referred to by number and he was used to them being referred to by name so he said he hadn’t cleaned them.

The Complainant submitted that he was never informed by the client that there was an issue with his cleaning and he was the only person that was investigated which he felt was unfair. The Complainant stated that he did not believe that he was fairly investigated and that his concerns were not addressed. The Complainant stated that he did not appeal the decision to dismiss as he didn’t feel comfortable with the personnel in the company dealing with his case. The Complainant stated that he believed the accusations against him were false and that he is seeking compensation for an unfair dismissal.  

5 The applicable law

Section 6(1) of the Act states.

“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”.

6 Discussion and Decision

The Respondent opened to the Court the case of Allied Irish Banks plc v Purcell [2012] 23 EL 189 where Linnane J stated as follows:

“The correct test is: Was it reasonable for the employer to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair.  But if a reasonable employer would 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 takes a different view”

[quoting Lord Denning MR in the UK Court of Appeal case of British Leyland UK Ltd v Swift]

It is clear that it is not for the EAT or this Court to ask whether it would dismiss in the circumstances or substitute its view for the employer’s view but to ask was it reasonably open to the respondent to make the decision it made rather than necessarily the one the EAT or the Court would have taken”

The Court notes there is no suggestion that the Respondent did not faithfully follow their own procedures or that any steps in the process were bypassed. No flaws in the process used have been argued before the Court.

The Complainant  remains of the view that he was only obliged to carry out specific tasks in specific areas of the plant despite having  previously been put on notice of the full range of duties that he was liable to carry out, and the importance of carrying out the tasks assigned by his line manager as opposed to the tasks that he wanted to do.

Taking all of the foregoing into account and the fact that the Complainant was employed in a role that required strict adherence to practises and protocols, the Court finds that the decision to dismiss falls within the band of reasonable responses, and therefore the decision to dismiss was not unfair.

The appeal fails. The decision of the Adjudication Officer is upheld.

The Court so determines.

	Signed on behalf of the Labour Court
	Louise O'Donnell
AL	______________________
16 December 2025	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Ms Amy Leonard, Court Secretary.