Complainant

Respondent

Parties

Mr Cathal Hussey

Tesco Ireland Limited [amended on consent at hearing]

Representatives

Mr Vivian Cullen SIPTU-Trade Union

Ms Dajana Sinik IBEC

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-00064526-001

03/07/2024

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

CA-00064526-002

03/07/2024

These matter came before the Workplace Relations Commission dated 03/07/2024 as a complaint submitted under section 8 of the Unfair Dismissals Act, 1977 and a complaint under section 12 of the Minimum Notice & Terms of Employment Act, 1973.   The aforesaid complaints were referred to me for investigation.  A hearing for that purpose was scheduled to take place on 10/03/2025.  A further hearing was a scheduled to take place on 19/06/2025. 

The Complainant at all material times was employed as a Warehouse Operative.    The Complainant was in receipt of a salary of €700.00 gross per week for which he worked 37.5 hours per week.  The Complainant was employed by the Respondent from 01/10/2007 until such time as he was dismissed on the grounds of gross misconduct on 09/04/2024.    

The Respondent is a major player in the Irish grocery market, operating a large number of supermarkets and convenience stores across the country offering a range of products and services, including groceries, clothing, and hardware.  

The Complainant claims he was unfairly dismissed when a sanction of dismissal was imposed which was disproportionate and unwarranted. 

The Respondent’s position is that this claim is not well-founded and the Complainant was dismissed on the grounds of gross misconduct following a fair investigation and disciplinary procedure. 

Both parties filed helpful written submissions with supporting documentation in advance of hearing for which I am grateful.  

CA-00064526-001

Overview of written submission

It is submitted that during a1-2-1 meeting the Complainant accused his manager of being useless as a manager.  The Complainant had outstanding legitimate grievances, which were being ignored by management.  It is submitted this situation was a source of much frustration.  It is submitted Mr Martynas Bajarunas though his grievance seems to be inferring that he was somewhat traumatised by being called useless and it is his contention that he feels bullied and harassed by being called useless.   The Complainant refutes these allegations notwithstanding feelings are not facts.  The Complainant was called to participate in an investigation due to begin on 21 December 2023.  The Complainant submitted a medical certificate that stated he was unable to attend due to stress.  It is the Complainant’s contention that he was fit to attend work but not fit to attend or to engage with the investigation process.  It is submitted the Complainant was removed from the roster until he was fit to attend the managers grievance investigation process.  The Complainant received a second invitation on 2 January 2024 to the investigation process and he did not attend.  It is submitted that SD, Operations Support Manager proceeded with the investigation without the Complainant’s involvement. 

The Complainant was notified on 12 January that the incident had been found to be a breach of the Bullying and Harassment policy and a potential breach of the Disciplinary Policy under the heading of serious misconduct under wilful and unreasonable refusal to obey a legitimate instruction given by a department manager or other members of management.  It is submitted in addition it was stated that it had been found that the content and demands of the 12 pages of concerns which was submitted at the 121 meeting with his manager on 25 November to be very concerning, unreasonable, disrespectful and improper and not in line with the values and how they treat people in the Respondent company. 

It is submitted that a clear conflation of different issues / concerns to create a new and damning narrative was manufactured.  It is submitted it is not the role of the investigator to add new allegations during an investigation process as this is highly prejudicial and confirmation bias.

The investigation letter states that the issues are serious and on the basis of serious misconduct and a disciplinary hearing was then triggered. 

It is submitted a disciplinary hearing took place on 19 January 2024 and a new and second allegation which seemed to have its genesis coming from the investigation process.  On 2 February the Complainant attended an outcome meeting and he received a final written warning.  The Complainant appealed the sanction on 14 February 2024. 

It is submitted the original allegation against the Complainant was that of serious misconduct as a result of calling his manager useless.  It is submitted this allegation then metamorphosed to become gross misconduct and the Respondent decided to add another layer to extrapolate more gravitas to the situation and to amplify the issue perse with another allegation.

The grounds for appeal are set out in the overview of the Respondent submission. 

The Complainant was invited to attend an appeal hearing by Ms White which he was able to attend.  The Complainant was invited to attend another appeal hearing on 21 March.  It s submitted Ms White decided to overturn the sanction of a final written warning and impose a summary dismissal.  This was appealed by the Complainant (grounds set out in Respondent submission). 

The appeal hearing took place on 10 May and the result was that the sanction of dismissal was upheld. 

It is submitted the Complainant was unfairly dismissed by the Respondent.  It is further submitted the substance of the case against the Complainant is cynical and an attempt to silence a genuine grievance by a worker to address worksite issues involving management and their conduct perse. 

It is submitted the Complainant did not in fact bully or harass his manager but merely tried to highlight on-going concerns, including a request to change line managers, the result of protracted issues. 

It is submitted that Mr Bajarunas is in a dominant position (management) and the Complainant is in a subordinate position (worker/employee).  It is submitted the concept of bullying and harassment has been weaponised against the Complainant in a fait accompli, management circling the wagons.  It is submitted Ms White found that the sanction of a final written warning was too lenient and dismissed the Complainant for serious misconduct and not gross misconduct.  It is submitted this is punitive, capricious and disproportionate and not in any way a measured response. 

The Respondent makes no distinction between serious/gross misconduct a merger of both to fit their narrative.  It is submitted this is also a crude exhibition of power from authority (their definition of reality to prevail upon a worker’s definition of reality) that also wants obedience and conformity to control their workers, without question or challenge.

It is submitted the punitive action taken by the Respondent was hubris and without restraint, the Respondent also using the mantra of management that trust and confidence that once existed s been broken beyond repair.  It is submitted that all the Complainant’s grounds of appeal were disregarded by Ms White with a sense of virtue signalling and self-righteousness.  It is submitted that it an assumption and it is disingenuous where the Respondent in its submission states that the Complainant’s behaviour amounted to gross misconduct.  It is submitted there is also reference in the Respondent’s submission that the Respondent has a zero tolerance policy on bullying and harassment – a one size fits all.  It is submitted the Respondent never considered mediation as a potential way to resolve any perceived differences or transgressions or any other disciplinary sanction.  It is submitted their way of dealing with a problem/issue/ concern in this case was to get rid of the problem, the Complainant.  It is submitted the emperor does not like being told that he isn’t wearing any cloths.  The Complainant is seeking re-instatement as a remedy. 

Law relied upon by Complainant

Employee v. Employer UD939/2010

Johnson Matthey Metals Ltd v Harding [1978] IRLR 248

Gearon v. Dunnes Stores Ltd UD367/1988

Frizelle v. New Ross Credit Union Ltd [1977] IEHC 137

DHL Express (Ireland) Ltd v. Michael Coughlan UDD1738 

Una Ruffley v. The Board of Management of St Anne’s School 

The Complainant did not engage with the hearing.  Therefore, there was no direct evidence adduced and no opportunity for cross-examination.    

Complainant closing submission

The Complainant representative submits this is all about fair and reasonable.  The Complainant had a difference with his line manager and he asked to be moved.  Gearon v. Dunnes Stores is opened by the Complainant representative.  It is submitted there was a flawed investigation process from which a second allegation was extrapolated.  It is submitted the role of an investigation is to establish the facts and this was highly prejudicial.  It is submitted this is unreasonable and highly prejudicial.  It is submitted there is no distinction between serious misconduct and gross misconduct.  It is submitted that serious is less than gross and that his member gave his honest opinion to his line manager.  It is submitted that F Murphy absolutely would have overturned if he (the Complainant) had shown remorse.  It is submitted the investigation was completely flawed because of the extrapolation and there has been a breach of nemo iudex in causa sua and audi ateram partem.    

It is submitted it was not fair and it was not impartial and it was a hatchet job that triggered a sequence of events.  It is submitted that calling someone useless is giving an honest opinion and there was no cause for a disciplinary and that it should have been dealt with informally.  It is submitted they had decided enough was enough and that it is punitive and hubirous without restraint and reliant on that old chestnut breach of trust. 

It is submitted there were more effective ways of dealing with this but there was a belief in a belief that it was justified and reasonably fair. 

It is submitted this was an orchestrated attempt to dismiss the Complainant and it was unfair, a breach of natural justice and a breach of fair procedures. 

The Complainant representative submits their member is seeking reinstatement as a remedy and there have been no submissions filed in relation to loss and mitigation. 

CA-00064526-002

The Complainant on the WRC complaint form submits he did not receive his statutory notice. 

CA-00064526-001

Overview of written submission

25th of November 2023, during a one-to-one monthly meeting between the Complainant and his line manager, Mr. Martynas Bajarunas the Complainant described the manager as "useless" in a 12-page document he submitted, raising multiple concerns.

1st of December, following the one-to-one meeting with his line manager, the line manager filed a grievance under the company's bullying and harassment procedure.  It was a common occurrence for the Complainant to become challenging during one-to-one conversations, particularly when performance reviews were mentioned, often deflecting the discussion and displaying difficult behaviour.

In his grievance letter, Mr. Bajarunas stated that following his meeting on 25th November, with the Complainant, he needed time to process the situation and allow things to settle.   He further expressed that even after a week, he continued to struggle with sleep, experienced a decline in his confidence, and found it difficult to engage with his team members.  He also shared that he felt anxious when speaking with others and was overwhelmed by intrusive thoughts when coming into work, to the point that he was considering seeking medical help.  As a result, he found it difficult to focus on his work.  Mr. Bajarunas raised a formal grievance. 

8th of December, a letter was issued to the Complainant advising him of the raised grievance and confirming an investigator was appointed and will investigate the matter under the company’s bullying and harassment procedure.  

12th of December, the Complainant was invited to attend an investigation meeting on the 21st of Dec.  The Complainant reached out to the grievance officer Ms. Anita Loughnane, Colleague Relations Partner to inform her that he will not be attending the scheduled grievance hearing.  He submitted a medical certificate stating that he was unfit to attend the scheduled meeting. 

21st of December, the grievance investigation meeting did not go ahead as planned, meanwhile the Complainant attended a meeting with UC People Partner to discuss his medical certificate. At this meeting, the Complainant clarified that though he was fit to attend work he was unfit to engage in the investigation meeting and requested a number of weeks to enable him to prepare for the meeting when his ready.

22nd of December, the Complainant attended a follow up meeting with SD Operations Support Manager to discuss the reasons for not attending the grievance hearing.  During this time, the Complainant was removed from the roster until such a time that he was fit to attend work related meetings, based on the assumption that the medical certificate he submitted indicated he was fit to work but not attend work related meetings, and therefore, it was perceived as an attempt to hinder the investigation because as we know, the threshold for obtaining an "unfit to engage" certificate is quite low.  During this meeting he also confirmed he was fit to work.

On the same day, the investigating officer Ms. Loughnane issued an invite letter to the Complainant inviting him to a second investigation meeting on the 2nd of January.  In the invitation letter, the Complainant was advised that if he failed to attend the rescheduled meeting without notifying the investigating officer, the meeting might proceed in his absence.

2nd of January 2024, a second grievance investigation meeting was scheduled, however, the Complainant did not attend.

3rd of January, SD Operations Support Manager informed the Complainant that, due to his failure to attend the scheduled meeting, the investigator had proceeded in his absence and will confirm the outcome in due course.  It was decided that the investigation into the Complainant's line manager's grievance would proceed in the Complainant's absence in an effort to resolve the concerns raised.

5th of January, the Complainant was scheduled to attend a meeting with the Operations Support Manager, SD to discuss a return to work for the Complainant; however, the Complainant did not attend this meeting either.

9th of January, the Complainant issued a cert, authorising his return to work and confirming that he is now fit to attend the meeting which was scheduled for the 21st of December.  On the same day, the Complainant was issued with an outcome Investigation report.  The outcome of the grievance reiterated the seriousness of the issue and stated that the matter would now be referred to a disciplinary process.

The investigation officer’s report found that the Complainant presented and read out a 12- page document listing various issues, during which he made an inappropriate comment, calling Mr. Bajarunas “useless.”  It was deemed reasonable to believe that both the comment and the document were intended to provoke a negative reaction from Mr. Bajarunas.  This behaviour was found inappropriate and in breach of the Company’s Bullying and Harassment Policy.  The Company’s Bullying and Harassment Policy was also included, citing the specific section on the definition and its affects:

“Harassment, including sexual harassment, can take many forms but generally it’s seen as unwanted behaviours that’s intended to be, or has the effect of violating another person’s dignity, and creating an intimidating, embarrassing, humiliating or offensive environment.  A one-off incident can be classed as harassment if it’s serious enough”. 

It also states: “Everyone’s different and something that doesn’t offend you might offend someone else and vice versa.  Just because something doesn’t or wouldn’t offend you doesn’t mean that it’s appropriate behaviour”.  The investigating officer also found that, the Complainants refusal to attend one-to-one meetings with Mr. Bajarunas or any other manager to be unacceptable and not reflective of the behaviour expected from any colleague.  These meetings are intended to support his performance and provide a space to discuss any concerns.  Given the number and timeline of the issues he has raised, the Complainants attendance at these scheduled meetings was considered especially important.  Furthermore, the investigation officer found that the Complainants 12-page document from the November 25th meeting to be concerning, unreasonable, and disrespectful, not aligning with company values.  

Based on the evidence, the investigating officer was satisfied that a policy breach occurred, and that the Complainants actions constitute serious misconduct, specifically a breach of the Bullying and Harassment Policy.  Therefore, it was concluded that these matters should proceed to a disciplinary hearing with a different manager. 

It was also added that due to the seriousness of the issues, a disciplinary hearing may result in sanctions, including dismissal, under the Company’s Disciplinary Policy.  A disciplinary manager will be appointed and will contact the Complainant with the details of the hearing.

11th  of January, the Complainant attended a welfare meeting with Mr. Delaney to discuss the Complainants return to work on the 12th of January.

17th of January 2024, a disciplinary hearing was scheduled to take place on 19th of January, the Complainant was provided with the policy in advance and forewarned of the potential outcome, provided with notice, and the right to representation.

19th of January, a disciplinary hearing took place with the Complainant during which the Complainant refused to participate or engage with the disciplinary officer and stated he would “cover off” certain aspects in his appeal.  The hearing lasted approximately 10 minutes. 

The outcome was a final written warning for breach of the company’s bullying and harassment policy. 

The Complainant filed an appeal on the following grounds:

He acknowledges calling his manager "useless" but argues that it was intended as constructive feedback to support his request for a change of line manager.

• The second ground of appeal is that he believes the final written warning is excessive and unfair, as the word he used was neither profanity nor vulgar.

• The third ground for appeal is that he highlighted several issues in his 12-page document during the November 25th meeting, expressing dissatisfaction with his line manager's attitude toward concerns he had previously raised. He believes this justifies his use of the word "useless" in reference to Mr. Bajarunas, given these circumstances.

• The fourth ground for appeal is that he views the tone of the 12-page document submitted on November 25th as constructive, critical feedback. He believes the overall tone should have been taken into account, making the final written warning an excessive response.

• The final ground for appeal is that after Mr. Bajarunas made his complaint, he believes this should have ended their working relationship. Since both parties lodged complaints against each other, he feels his complaint may not have been considered serious and that this should have been factored into the decision to issue a final written warning.  

It is submitted that an appeal officer was appointed and he invited the Complainant to attend the appeal hearing.  The Complainant submitted a written statement requesting a different person to be assigned as he did not wish to engage with Mr McCarthy who was not aware of this request and proceeded to hear the appeal as scheduled on 01 March.  The Complainant declined to engage.  Mr McCarthy removed himself from the process and a new appeals officer was appointed namely Ms Mary White.  Ms White invited the Complainant to a new appeal hearing by correspondence providing notice, document references and the right to representation.  The Complainant failed to attend.  There was another hearing scheduled and the Complainant attended with a colleague representative on 21 March.

The appeals officer determined that the final written warning was too lenient given the Complainant’s actions, lack of responsibility, failure to show remorse and no effort to correct his behaviour and based on this Ms White decided to overturn the final written warning and impose an immediate dismissal instead.  The Respondent submits that although not common practice the Complainant was granted an additional opportunity to appeal the sanction which he did on the following grounds:

The Complainant appealed the dismissal, citing the first ground of appeal, stating that he believes the dismissal is excessive, punitive, unfair, and disproportionate.

• The second ground of appeal is that the Complainant suspects the excessive and disproportionate action taken against him by his employer is related to the concerns he raised during the one-to-one meeting on November 25, 2023, particularly the question he posed about warehouse operatives being exploited by the company.  He notes that none of the questions in his 12-page document were addressed, and the only action taken was his reassignment to a new line manager, along with being disciplined for calling his previous line manager "useless."

 • The third ground of appeal is that no due consideration was given to his 16 years of service with the company.  He also points out that he has never taken sick leave until recently due to stress at work and claims the company did not provide support during this period or address his manager's conduct.

• The final ground for appeal is that three different managers were not dismissed for misusing the company computer, which he believes was a more serious breach compared to his actions.  He feels his misconduct does not warrant dismissal and that an informal conversation about calling his line manager "useless" would have been sufficient.

Mr Finbar Murphy heard the appeal at which the Complainant had declined the right to representation.  It is submitted the appeal officer expressed a desire to go through the points of the appeal with the Complainant but the Complainant stated that he did not wish to answer any further questions.  The outcome was that the dismissal with upheld with immediate effect. 

In accordance with the Unfair Dismissals Acts 1977 - 2015, the dismissal of an employee shall be deemed not to be unfair if it results wholly or mainly from the conduct of the employee.  In the instant case, following a thorough, transparent and in-depth investigation and disciplinary process, the Complainant was adjudged to have acted in a manner that irreparably damaged the trust and confidence of the Respondent in him.  Throughout the process, the Complainant either missed scheduled meetings, declined to answer questions, failed to engage or present his case, or raised objections regarding the individual conducting the meetings.  Having considered all the facts, the responses and explanations of the Complainant were not considered reasonable, sufficient or remorseful by the Respondent such as to mitigate the seriousness of his actions.  The Respondent submits that the Complainant’s dismissal was not unfair.  The Complainant has been with the Respondent for the past 16 years and is expected to conduct himself in a manner that respects and does not undermine authority.

Despite the power imbalance, just as it would be unacceptable for his line manager to refer to him as “useless,” it is equally unacceptable for him to use such language toward his line manager.  Given that this is not the first instance of such behaviour, it ultimately resulted in the line manager lodging a formal grievance against the Complainant.  The Respondent’s position is that this conduct further undermines the established company structure and the authority of the line manager’s role.  The sanction of dismissal was justified in the circumstances of the case.  The Complainants behaviour amounted to gross misconduct, and he refused to acknowledge or accept that such behaviour is unacceptable.  The Respondent has a zero-tolerance policy on Bullying and Harassment behaviour and requires all staff to work to its values of respect, accountability, and integrity.  At the core of any organisation is the need for satisfactory standards of behaviour and conduct.  As such the Respondent’s decision to dismiss was fair and appropriate in the circumstances, and no unfair dismissal took place. The Complainant was dismissed for misconduct in line with, Section 6(4)(b) of the Act.

It should be noted that, this was not the first time the line manager had faced issues with this employee.  During the meeting on November 25th, when the employee used inappropriate language and unwarranted terms, the manager gave him an opportunity to reconsider his actions.  However, the employee remained steadfast in his views about the line manager.  Over time, the situation escalated to such an extent that, despite it being against common practice, the line manager ultimately filed a grievance against the employee due to the severity of his behaviour.   Allegation 2 - This alleged incident may violate the Bullying and Harassment Policy and the Disciplinary Policy, classified as serious misconduct under "wilful and unreasonable refusal to obey a legitimate instruction from a department manager or other members of management."  As a consequence of the Complainant's actions, the line manager in question experienced significant stress, especially given that this was not the first occurrence of a similar issue.  This situation had a serious impact on the manager’s well-being, making it difficult for him to engage with other staff and effectively manage his team.  The manager’s confidence and ability to interact with colleagues were severely affected, to the extent that he even considered seeking medical support.   Therefore, it is the Respondents position that the importance of health and safety in the workplace, cannot be overstated and the Respondent has a duty of care both to the employee in question and all colleagues on the site.

In relation to the procedures used to implement this dismissal, the Complainant was afforded all benefits of fair procedure, in line with the company’s established policy, the WRC Code of Practice on Grievance and Disciplinary Procedures (SI 146/2000) and the universal principles of natural justice.

He was always afforded the right to representation, and he was provided with fair and impartial hearings, at which he was given every opportunity to respond to the allegations against him. All the evidence in its entirety was considered, including the Complainant’s representations, before any decision was made or action taken.  During the grievance investigation stage, the Complainant declined to participate in the investigation meeting, instead providing the Respondent with a medical certificate stating he was unfit to engage in the meeting until further notice — despite being deemed fit to attend work.  

Additionally, during this period, the Complainant attended and actively participated in other company meetings yet claimed an inability to engage in the investigation process.  Nearly two weeks later, when a second investigation meeting was scheduled, the Complainant again failed to attend. As a result, the Respondent proceeded with the investigation in his absence to resolve the concerns raised. Once the matter was referred to a disciplinary process and a disciplinary hearing was scheduled, the Complainant attended the hearing accompanied by a representative.  However, he chose not to participate or engage in the proceedings, stating that he would address certain aspects of the matter during his appeal. 

After receiving a final written warning for breaching the company’s bullying and harassment policy, the Complainant appealed the outcome.  However, when the appeal was scheduled, the Complainant refused to engage with the appeal officer appointed to hear the case and stated that he felt his appeal letter contained sufficient information.  In response, and in line with the company’s commitment to maintaining a fair and transparent process, the Respondent acted as a reasonable employer and appointed a new appeal officer.

When a new appeal officer was appointed and a new hearing was scheduled, the Complainant did not attend, claiming that he had not seen the invitation letter in time.  In response, the Respondent made further efforts to accommodate the Complainant by scheduling another appeal meeting on the 21st of March.  The Complainant attended this hearing accompanied by his representative.  After the appeal hearing, the appeal officer, arranged an appeal outcome meeting to convey the decision of the appeal, where he was also granted all the rights of natural justice.  Though not standard practice, the reasonable employer provided the Complainant with an additional opportunity to appeal the appeal outcome.  Shortly thereafter, an individual with no prior involvement in the case was appointed to hear the appeal to the appeal outcome, Mr. Finbar Murphy.  An appeal hearing was scheduled, and the Complainant was afforded the right to representation, which he chose not to exercise.  He was invited to the hearing by letter and given two weeks' notice.  All relevant documentation was provided to him in advance of the meeting.  Despite the appeal officer’s intention to review each ground of appeal in detail, the Complainant declined to engage in the process.  He stated that his written appeal contained sufficient information and asked the appeal officer to proceed and make a decision without further input from him. Furthermore, the Respondent asserts that the Complainant was offered two separate opportunities to appeal but failed to fully utilize the appeal process to his benefit and did not present any mitigating factors for the appeal officer's consideration.

Specifically, during the final appeal on May 30th with Mr. Finbar, the Complainant, despite this being his last opportunity to make a case for himself, he chose not to engage with the appeal process. He stated that he believed the appeal letter contained sufficient information and requested that the appeal officer proceed with making a decision.  For that reason, the Respondent would like to rely on the Mooney V an Post {1998}, where it was found that “it is not sufficient for a person in the position of the plaintiff to simply to fold his arms and say “I’m not guilty. You prove it”.”  The Respondent holds the view that every effort was made to ensure that the dismissal of the Complainant was procedurally fair in all respects.  Moreover, the Complainant was given the opportunity to respond fully to the allegations against him but consistently and adamantly refused to acknowledge that the behaviour he admitted was unacceptable under any circumstances. I n light of all of the above, the Respondent believes the dismissal of the Complainant to be procedurally fair in all respects.

Redress and mitigation of loss

While the Complainant’s past contributions to the workplace were recognized, and appreciated, the relationship has deteriorated to such an extent that it has become irreparable.  The trust and confidence that once existed have been broken beyond repair, and reinstating or reengaging the Complainant would not restore that fundamental foundation needed for a healthy employment relationship.  The Respondent respectfully submits that the remedies of reinstatement and reengagement should not be granted in the present case.  While such remedies may be appropriate in cases where there is no wrongdoing, the circumstances surrounding the Complainant's dismissal are markedly different. The Complainant was dismissed for misconduct, which, in the Respondent's view, resulted in a serious breakdown of trust and confidence between the parties. Reinstating or reengaging an employee in such a context, where the employment relationship has been irreparably damaged, would not be appropriate or in the best interests of either party.

Given the nature of the dismissal in this case, and in accordance with established jurisprudence, the Respondent respectfully submits that reinstatement or reengagement would not be an appropriate remedy. The Respondent also submits that (reinstatement or reengagement) would not be appropriate in these circumstances and respectfully requests that the Adjudicator consider the complete breakdown of the relationship when deciding on the appropriate remedy.  Without prejudice to the Respondent’s position that there was no unfair dismissal within the meaning of the Unfair Dismissal Acts 1977 to 2015, the Respondent submits that the Complainant is required to submit a statement of loss to prove that he has made sufficient efforts to mitigate his loss.  The Respondent contends that the actions of the Complainant contributed wholly to his own dismissal and therefore, hold the position that the Complainant is not entitled to seek any redress under the Unfair Dismissals Acts 1977-2015.

CA-00064526-002

Section 8 of the Minimum Notice and Terms of Employment Act 1973 states that: “Nothing in this Act shall affect the right of any employer or employee to terminate a contract of employment without notice because of misconduct of the other party.”

The Employment Appeals Tribunal has taken a restrictive interpretation of this provision, limiting its application to situations of gross misconduct.

A very narrow view of gross misconduct has been adopted by the courts. Moreover, Section 8 of the Act allows for the termination of a contract of employment by either party due to the misconduct of either party.  The Respondent reiterates its view that the Complainant was dismissed for gross misconduct and are therefore, not entitled to payment or lieu of notice. This is also supported in precedence’s from the WRC and Labour Court that have consistently found that a Complainant will not be entitled to minimum notice should they be dismissed for gross misconduct and the dismissal is deemed as a not unfair dismissal.  An example of such can be seen in Element Six Ltd and Patrick O’Connor (MND225) where the Court determined that the dismissal of a Complainant for gross misconduct was a not unfair dismissal.

It argued that therefore, Section 8 is applicable and “there is no obligation on the employer to make a payment in lieu of notice”.

Law relied upon by Respondent

Andrew Byrne v. Wicklow County Council UD656/2008

Berber v. Dunnes Stores [2009] ELR 61

Bank of Ireland v. Reilly [2015] ELR 229

An Emergency Service Controller v. A Fire Authority [ADJ-000-9238]

Murray v. Meath County Council UD 43/1978

Philip Smith v. Mark Leddy UDD1974

Bidvest Noonan Ltd v. Slawomir Lantas UDD2219

Revenue Commissioners v. Colm Keane UDD 2125

Element Six Ltd v. Patrick O’Connor MND225

Summary of direct evidence of Respondent Witness Mr Martynas Bajarunas(hereafter MB) on oath

The witness outlines that he has worked in the Respondent company for 19 years; he works in operations and he manages a team.  The witness submits the Complainant was a member of his team comprising 15 people and they would have conversations on a daily basis.  MB submits he has worked with the Complainant for 2 years and he was new to his team as he had transferred from another shift.

The witness outlines it is hard to engage with the Complainant when it comes to the monthly performance 1:1s.  The witness submits that prior to the incident on 25 November the only issues he had with the Complainant were engagement issues.

The witness submits the 1:1s were an opportunity for team members to speak up.  The witness submits at the 1:1 on 25 November the Complainant brought a witness and so did he – he brought a team manager from another team.  The witness outlines it is unusual to bring witnesses and he had no idea what it was all about and he was presented with a 12 pages written out with the Complainant’s concerns and issues which he read out and at the end he said to me “you are useless”. 

MB submits he said thank you very much for the feedback and he needed to stay calm and professional which he did and he said he would take time to respond to all of this. 

The witness submits that after the meeting he was shocked and he felt bad and he was asking himself “am I a bad manager”.  The witness submits this came from nowhere and it wasn’t expected. 

The witness submits he felt stressed and he submitted a grievance.  The witness submits he felt harassed stressed and bullied and he just felt so stressed at the words used against him as a manager.  The witness submits that when the Complainant was dismissed the team dynamic was just normal.

Summary of cross-examination of Respondent witness MB

MB confirms he is overall 19 years with the Respondent 10 of which are as a manager.  The witness is asked if prior to the Complainant calling him useless was there anything going on to which the witness responds that it was always very hard to get him to engage.  The witness submits that he did not know if the Complainant had any issues with him and that he was shocked when he read the 12 page document and it was a very bad narrative.  The witness repeats he was shocked and he confirms he didn’t take sick leave and he didn’t see his doctor. 

The witness is asked how would he know if he was a good manager to which he responds he would know from his regular reviews with his manager.  When asked why he made a formal complaint the witness submits he felt unsafe coming to work because of the words that were used and when asked if he felt threatened he responds yes and he submits he wondered what else could come in the future if he is now called useless.

The witness is asked is it not the role of a manager to deal with difficulties to which he replies yes but not to hear you are useless.  The witness submits he has never before been called anything negative. 

Summary of direct evidence of Respondent witness Ms Anita Loughnane (hereafter AL) on affirmation.

The witness is a Colleague Relations Partner and she has worked in the Respondent company for over 30 years.  The witness outlines she partners with store managers and she looks after the conduct of grievance and disciplinary hearings.  The witness submits she had no dealings with the Complainant up to this time.  The witness submits MB alleged the Complainant called him useless and he found the behaviour negative.  The witness submits MB felt impacted by this and he couldn’t sleep and he found it hard to come to work. 

The witness submits MB raised a formal grievance and the Complainant was notified by correspondence provided with notice and advised of his right to be represented.  The witness submits the hearing was scheduled for 21 December but the Complainant did not attend.  The witness submits she believes the Complainant phoned her the day before the hearing and told her he had a medical cert to say he couldn’t attend.  The witness submits the Complainant was provided with notice on 22 December of a hearing on 02 January which he failed to attend again and this hearing proceeded in his absence.  The witness does not believe the Complainant contacted her in advance of the rescheduled hearing he just didn’t attend.  AL submits she found that he had breached the dignity at work of the Complainant and it impacted him. 

Summary of cross-examination of Respondent witness AL

The witness outlines the purpose of the meeting was to understand if what was alleged did happen and when it is put to her the purpose was to establish the facts she responds yes.

The Complainant representative makes reference to a second allegation and asks the witness if she is aware of S1 146 of 2000 to which she replies yes.

The witness submits the contents of the 12 page document were very concerning as the Complainant was making demands.  The witness outlines she had to move forward as she had a duty of care to both parties.  It is put to the witness that she ignored the medical advice and that she prejudiced the outcome by expressing an opinion on the 12-page document. 

Re-direct AL

The witness submits the medical certificate provided was very specific and stated that the Complainant was not available for the meeting on 21 December and this was specifically stated on the cert.  The witness submits there was nothing provided for the meeting on 2 January the Complainant just didn’t turn up.  The witness submits the Complainant was in work and she assumed he was fit to engage. 

Summary of direct evidence of Respondent witness Mr Colm Farrell (hereafter CF) on affirmation

CF outlines he has worked in the Respondent company for 40 years and he oversees all Health & Safety systems and risk assessments in distribution centres.

The witness submits he has had no dealings with the Complainant in the past.  The witness submits the outcome of the grievance investigation led to a disciplinary hearing.  The witness submits the Complainant was notified by correspondence and advised of his right to representation of which he availed.  The witness submits he attended the hearing and he was afforded the opportunity to add anything he wished to say but that he didn’t engage he said he was leaving it to his appeal.  The witness submits the meeting lasted about 10 minutes and the Complainant’s representative had no input.

The witness submits there was a sanction imposed of a final written warning on the basis of the fact it was serious misconduct because the dignity of MB was violated and the Complainant showed no remorse and he put forward no mitigating factors. 

Summary of cross-examination of Respondent witness CF

It is put to the witness that it would be fair to say there was a spectrum of transgressions that could be considered serious misconduct up to and including dismissal which is accepted.  It is put to the witness that there was wriggle room to sanction.  The witness submits there was no remorse and no mitigation and the investigation report said it was serious misconduct.

Summary of direct evidence of Respondent witness Mr Mick McCarthy (hereafter MMcC) (1st appeal officer) on oath

The witness has worked for 38 years in the Respondent company and he holds the most senior position in the Distribution Centre making sure the Respondent delivers goods to their stores safely and efficiently.  The witness submits he was appointed to hear the 1st appeal.  The witness submits the Complainant attended and bias and prejudice were alleged.  The witness submits he had no day to day involvement with the Complainant and when asked if he had any additional information on his appeal the Complainant stated the letter said it all.  The witness submits he said to the Complainant that this is your appeal and this is your chance to put your case but that he did not engage. 

MMcC submits he recused himself from the process so that another appeal officer might be able to engage with him or to get him to engage.

The Complainant did not avail of the opportunity to cross-examine MMcC

Summary of direct evidence of Respondent witness Ms Mary White (hereafter MW) (2nd appeal officer) on oath

MW has worked in the Respondent company for 18 years and she is a partner to 42 stores and supports store managers in investigations and disciplinary hearings.

MW submits hers and the Complainant’s paths had never crossed up to this time and she had no prior dealings with him.  The witness submits the Complainant was invited to his appeal hearing by formal letter provided with notice and advised of his right to representation. 

The witness submits the Complainant presented the appeal letter at the hearing and he didn’t want to elaborate and what was in his appeal letter was enough.  The witness submits there was no mitigation put forward and no remorse shown. 

The witness submits there is a duty of care to all parties and the policy is corrective rather than punitive but there was no remorse or no apology forthcoming.  The witness submits she put herself in the shoes of the manager in the distribution centre and she submits she did consider the options but re-locating was not an option.

Cross-examination of Respondent witness MW

It is put to the witness that sanctions are remedial and not punitive with which she agrees and accepts.  The witness submits the Complainant was adamant that she read the 12 page document and she is asked if this influenced her decision to which she replies that she had considered it.  The witness refers to the 12-page document and submits this was not a heat of the moment type of thing where he called his manager useless as this was all put in writing that he felt MB was useless and he was giving out about other managers also and that it was the tone of the document.  The witness submits it is inappropriate behaviour to call someone useless as it goes against their values. 

It is put to the witness that serious misconduct in her opinion is a dismissal offence to which she replies yes.  It is put to the witness that it was a punitive sanction to which she replies it wasn’t a decision taken lightly and that in her opinion it was fair in reasonable.  The witness submits the Complainant was in breach of the bullying and harassment policy which falls in under serious misconduct and that she had invested a lot of time in this.

The witness is asked if she can be specific as to what he did that merited dismissal and she refers the Complainant representative to her letter already read into evidence by her. 

It is put to the witness that bullying is repetitive and inappropriate and this was a one off incident to which she responds correct.  The witness is asked where in the policy is one off incidents dealt with to which she responds MB felt the Complainant humiliated him.  The witness is asked if she considered mediation to which she responds the Complainant just would not engage with her and she could not see him engaging with training or mediation.

The witness is asked if she considered re-location but this was not really an option and when asked which locations she considered the witness replied the Extra Stores but that there was no remorse and no apology.  When asked how much consideration she had given the 12 page document the witness submits she thought more about the impact of it and you treat people how you want to be treated. 

Cross-examination of Respondent witness MW (continued on day 2)

It is put to the witness that disciplinary sanctions are imposed to improve behaviour with which she agrees.  The witness is asked if gross misconduct is dismissible to which she replies yes.  The witness is asked if serious misconduct is dismissible to which she replies yes.  The witness is asked if she can distinguish between gross misconduct and serious misconduct and she responds that to her they are the same thing and they are classed as the same thing.  The Complainant representative makes reference to the Disciplinary Policy and reads from same as follows:

When your conduct or performance falls below our standards, e.g. you behave unreasonably, unacceptably, or against policy, we consider this to be misconduct.

Serious/Gross Misconduct is conduct so severe that even a one off-incident could result in your dismissal (without notice) from the Company ….

The witness is asked how she concluded that dismissal was the correct decision and she responds by setting out the options available as follows:

·        Uphold your appeal and reduce the level of disciplinary warning or no warning;

·        Uphold your appeal and reinstate or reengage you if your were dismissed, giving you a lower level of warning;

·        Uphold your appeal and reinstate or reengage you if you were dismissed, giving you no warning;

·        Agree that the disciplinary sanction was correct in all the circumstances; or

·        Find that the level of disciplinary warning was lenient and apply a modified or different sanction. 

The witness is asked to confirm that the Complainant was dismissed for calling someone useless to which she responds yes.

The witness is asked if accepts there is a difference between bullying and harassment which she does accept and she submits the Complainant’s behaviour was in breach of the bullying and harassment policy.  The witness is asked if she accepts that bullying is inappropriate repetitive behaviour to which she responds yes. It is put the witness that this is a one-off incident.  The witness submits the word useless was also set out in the 12-page document by the Complainant.  The witness is asked on which one of the nine grounds harassment was alleged to which she replies she never mentioned any of the grounds.

It is put to the witness that it is not bullying and it is not harassment and it is put to her that behaviour could be accepted as bullying or harassment but it cannot be both and when asked if she accepts that the witness responds that she does but it could fall under both.  It is put to the witness that it is not bullying there is nothing on which one of the nine grounds harassment was said to have taken place.  The witness is asked if she accepts that there is one allegation that the Complainant called someone useless and that is a dismissible offence to which she responds yes.

The witness is asked if she would have done anything different looking back and she responds no as there was no remorse and he used the word useless.  It is put to the witness that she chose to elevate the sanction to dismissal and she is asked if she accepts feelings are not facts to which she responds yes.  The witness is asked if she thought it was a bit harsh to which she replies no.  The witness is asked why wasn’t the Complainant sent on a dignity in the workplace course.  The witness responds that she did not take this lightly and she felt it was the right decision.  The witness is asked if she thought it was over punitive and is asked to rate it on a scale of 1 – 10 at which time the Respondent representative objects on the basis of speculation and conjecture. 

It is put to the witness that serious and gross misconduct seem to be one and the same thing and she is asked again if she can rate the offence to which she replies she has already answered that.

The witness is asked if she considered a more informal approach to which she replies the Complainant just wouldn’t engage with them.

It is put to the witness that it is very rare for a formal written warning to be elevated to a dismissal to which she responds that she accepts that.  The witness is asked if she believes it (dismissal) was merited for calling someone useless to which she responds yes correct. 

Summary of direct evidence of Respondent witness Mr Finbarr Murphy (hereafter FM) on affirmation by Webex link

FM outlines he is the store manager in Artane and he has been with the Respondent company for 30 years.  The witness describes his responsibilities as everything from the front door to the back door.  The witness submits he had no dealings with the Complainant up to this time. 

The witness submits it was his role to hear the appeal and to see if it was fair and just.  The witness is asked if it is common to get an appeal after an appeal to which he replies not as far as he knows.  The witness submits the Complainant just wouldn’t engage with him at the appeal and he asked him twice.  The witness submits he didn’t have anybody representing him and he really wanted to go through the various points of appeal with him. 

The witness submits he had an open mind but the Complainant just wouldn’t engage and said his written submission was enough.  The witness submits the meeting lasted about ten minutes.  The witness submits he gave the Complainant plenty of notice of the appeal hearing and that he wrote to him.  The witness is asked if he had received all the information he needed which he confirms and he outlines what he had considered.  The witness submits the process was followed perfectly and the Complainant was given every opportunity to engage but he just wouldn’t engage with him.  

The witness submits his outcome was to uphold the sanction.  The witness submits his decision was based on the fact he called his line manager useless.  The witness submits he thinks it’s an awful thing to call anybody and the effect of that can be massive and it can last a very long time.  The witness submits there was just not enough in the Complainant’s written for him to overturn and he simply would not engage. 

Summary of cross-examination of Respondent witness FM

The witness is asked if the Complainant was dismissed for serious misconduct to which he replies yes.  The witness is asked if he can distinguish between serious misconduct and gross misconduct to which he replies he can’t really and that serious misconduct is gross misconduct and that is their policy and that is how they manage these things. 

The witness is asked if he is saying they are the same to which he replies no they are not the same.  The witness is asked what’s the difference to which he replies he doesn’t know and he doesn’t have the answer to that. 

The witness is asked why the Complainant was afforded a second appeal to which he replies he that it would be unusual but to be fair and reasonable to the Complainant.  It is confirmed this is really a third appeal.  The witness confirms he would have received the case file in advance and he didn’t realise initially it was a dismissal arising out of an appeal.  It is put to the witness that he doubled down on that to which he responds he did not and submits that by the time the Complainant got to him he was already dismissed and that his job on going into it was to keep an open mind which he did.   

The witness submits he is not the guy who dismissed the Complainant and his job was to overturn or uphold.  It is put to the witness that the appeal letter wasn’t enough to which the witness responds the fact the Complainant had 16 years unblemished service appeared to have justified the fact that he could use the word useless in that way.

It is put to the witness that he had stated the Complainant had shown no remorse and he is asked if that was a factor in his decision to which he relies yes of course. 

The witness is asked why that was a factor to which the witness responds that what he had said to his line manager was unacceptable and even if the Complainant had at any stage said I know I shouldn’t have done that I was having a bad day we probably wouldn’t be here today but there was nothing. 

The witness is asked if he would have overturned the decision for remorse having been shown to which he replies – possibly. 

Respondent closing submission

It is submitted by the Respondent representative that it is disappointing that the Complainant is not going into evidence as she would have liked the opportunity to ask him why he seeks reengagement in a company that he alleges exploits its employees which she finds interesting. 

It is submitted that saying the process was flawed is simply not enough.  It is submitted the Complainant was provided with multiple opportunities to engage and that he repeatedly refused and refused to participate. 

It is submitted that as per the Respondent policy harassment can take many forms but generally its seen as unwanted behaviour that’s intended to be or has the effect of violating another person’s dignity and creating an intimidating, embarrassing, humiliating or offensive environment. 

It is submitted the Complainant refers to his manager as useless and calls it constructive feedback which falls far short of the definition of what constructive feedback is meant to be.  It is submitted the references to his managers and how the Complainant describes managers in his twelve-page document shows a breakdown in the relationship between the Complainant and the Respondent.   It is submitted the Complainant was provided with ample opportunity to put forward his case and he chose not to do so.  It is submitted the dismissal was justified.

CA-00064526-001

In conducting my investigation and in reaching my decision, I have reviewed all relevant submissions and supporting documentation presented to me by the parties.  I have carefully considered the oral evidence adduced at hearing.   I have carefully considered the caselaw to which I have been directed by the parties.  I deemed it necessary to make my own inquiries into the complaint during hearing to establish and understand the facts and to seek clarification on certain matters. 

Having carefully considered at length all the evidence presented to me I find the within complaint is characterised by significant disparity in the perception of the parties as to the constituent elements of gross misconduct vis a vis serious misconduct as this was subject to significant debate during the course of hearing.

I am satisfied, however, the net issue in the within case relates to the proportionality of the sanction imposed on the Complainant following a disciplinary process.   

I am obliged to draw my conclusions from the facts as presented to me and by the application of the law to those said facts whilst taking into account all other relevant factors and surrounding circumstances.  The role of the Adjudication Officer is to decide the case before him/her, resolving conflicts in evidence according to the direct evidence presented at hearing.   

The Relevant Law

Unfair Dismissals Act, 1977

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.

(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) 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 which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

(6) 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.

(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

(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14 (1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7 (2) of this Act.]

The combined effect of the above provisions of the Act requires me to consider whether or not the Respondent’s decision to dismiss the Complainant, on the grounds stated, was reasonable in the circumstances.  It is well established that it is not the role or the function of an Adjudication Officer to determine the guilt or innocence of the employee but rather to assess whether a reasonable employer, in the Respondent’s position and circumstances, would have done so.   This is the standard against which the Respondent’s actions must be judged.  The Act places the burden of proof on the Respondent to demonstrate that the dismissal was fair.  As part of discharging this burden of proof, the Respondent must show that fair process and procedures were applied throughout. 

The approach to whether a reasonable employer would have dismissed the employee in the same circumstances was explained by Noonan J in the High Court case of Bank of Ireland v O’Reilly[2015]26 E.L.R. 229 where he held as follows: 

 “…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.”

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 wrongdoing.  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.”

A right to fair procedures and natural justice is implied into contracts of employment.  These rights are particularly important in disciplinary matters where a dismissal may have a negative repercussion on the employee’s reputation and their prospects for any future employment.  The subject of any disciplinary process should be provided with a full and fair opportunity to state his or her case as part of the investigation process. 

It is widely accepted that as part of fair procedures and natural justice that an employee has a right to challenge his or her accusers before any findings are made.  While these rights may be less relevant at a preliminary investigatory stage, they are paramount to any disciplinary hearing which is the point at which a decision is made in such matters.  Indeed, where the potential sanction could warrant dismissal such a right cannot be ignored by the employer.  In Borges v. The Fitness to Practice Committee [2004]1 IR 103 provides that where investigative processes can lead to dismissal, cross examination is a vital safeguard to ensure fair procedures.  In that case, Keane CJ stated:

“It is beyond argument that, where a tribunal such as the first Respondent is inquiring into an allegation of conduct which reflects on a person’s good name or reputation, basic fairness of procedure requires that he or she should be allowed to cross-examine, by counsel, his accuser or accusers. [1971] IR 217.”

Proportionality of Sanction

In considering the fairness or otherwise of the dismissal, I am also obliged to consider if the sanction of dismissal was proportionate to the alleged misconduct the circumstances.  The Employment Appeals Tribunal held in the case of Bigaignon v Powerteam Electrical ServicesLtd [2012] 23E.L.R.195 that: 

“The Tribunal had to consider if the respondent acted fairly and if dismissal was proportionate to the alleged misconduct. Does the punishment fit the crime? In considering this question the fact that the Tribunal itself would have taken a different view in a particular case is not relevant. The task of the Tribunal is not to consider what sanctions the Tribunal might impose but rather whether the reaction of the Respondent and the sanction imposed lay within the range of reasonable responses. The proportionality of the response is key and that even where proper procedures are followed in effecting a dismissal, if the sanction is disproportionate, the dismissal will be rendered unfair …… The precise terms of the test to be applied as to whether the sanction was reasonable was set out in Noritake (Ireland) Limited v Kenna UD88/1983 where the Tribunal considered the matter in the light of three questions: 1. Did the company believe that the employee mis-conducted himself as alleged? If so, 2. Did the company have reasonable grounds to sustain that belief? If so, 3. Was the penalty of dismissal proportionate to the alleged misconduct?”.

In McSorely v Minister for Education and Skills [2012] IEHC 201, Hedigan J outlined the proportionality test which was set out in Heaney v Ireland [1994] 3 IR 539 in which Costello J held as follows:

 “The means chosen must pass proportionality test.  They must (a) be rationally connected to the objective and not be arbitrary, unfair or based on irrational (b) impair the right as little as possible; and (c) be such that their effects are proportional to the objective”.

In considering the question of fair procedures, I note that the High Court in its determination in the case of Shortt v Royal Liver Assurance Ltd(2008) IEHC 332 Laffoy J outlined that a centralconsideration to a fair process is whether or not any purported breach of natural justice was “likely to imperil a fair hearing or a fair result”. 

I note also the determination of the Employment Appeals Tribunal in the case of Murphy v College Freight Ltd (UD867/2007) where the EAT noted that a disciplinary procedure does not need to be “a counsel of perfection” but rather “they must be fair.” [emphasis added] 

The Labour Court decision of Bord Gais Eireann v. A Worker [AD1377] sets out my remit in relation to disputes regarding internal investigations as follows:

“It is not the function of the Court to form a view on the merits of complaints giving rise to those investigations nor can it substitute its views for those of the investigators appointed in either case. Rather, the role of the Court is to establish if the procedures used by the Company conformed to the generally accepted standard of fairness and objectivity that would normally be used in cases such as these.”

The Relevant Facts

The fact of dismissal is not in dispute, therefore, there is a statutory presumption that the dismissal was unfair unless there were substantial grounds justifying it.  It is for the Respondent to establish that in the circumstances of this case the dismissal was not unfair. 

The two issues which I must consider in the context of deciding the fairness or otherwise of the dismissal in the present complaint are (1) whether the Respondent acted reasonably in dismissing the Complainant and (2) whether the dismissal adhered to the principles of fair procedures. 

I note the Respondent’s position that the Complainant was dismissed on the grounds of gross misconduct following a fair investigation and disciplinary procedure.  I note the Complainant’s position that his dismissal was unfair and in breach of his rights to fair procedures and natural justice.

The Complainant seeks to ground his claim for unfair dismissal on the following:

1.      A flawed investigation process from which a second allegation was extrapolated;

2.      A sanction that is punitive, disproportionate and capricious. 

It is not in dispute that the Complainant referred to his line manager as useless further to which his line manager filed a grievance under the company’s bullying and harassment procedure.  It is not in dispute the investigation was undertaken without the Complainant’s attendance when he refused to participate in the investigation. 

Procedural Fairness

The Investigation

I note the investigation revealed that the Complainant had been refusing to attend one-to-one meetings with his line manager and this was found to be unacceptable and not reflective of the behaviour expected from any colleague.  I note also the 12-page document from the meeting with his line manager on 25 November was found to be concerning, unreasonable and disrespectful and not aligning with company values. 

I note the Complainant representative’s position that there was a clear conflation of different issues in order to create a new and damning narrative.  I do not agree with this position.  The purpose of an investigation is to establish the facts and it did establish facts that had heretofore seemed to go unnoticed namely the fact that the Complainant had been refusing to engage with his line manager in the monthly one-to-ones and preferred instead to engage with his line manager by presenting  him with a 12-page document outlining what his representative refers to as “outstanding legitimate grievances” when he did engage with his line manager on 25 November. 

Much was made by the Complainant representative of his position that the investigation was flawed and that a second allegation was extrapolated therefrom. 

However, it is not in dispute the overarching and all-pervasive issue throughout this case is the fact the Complainant referred to his line manager useless.  It is noted this incident was the catalyst that triggered the grievance investigation in the first instance. 

I am satisfied the unintended consequences of the investigation were that behaviours were uncovered that had been under the radar for some time and I am unable to find this constitutes a flawed investigation.  I find it curious these behaviours had not been addressed by the Respondent namely the Complainant’s refusal to attend the monthly one-to-ones with his line manager as it would appear this had been an ongoing pattern of behaviour and it would appear that his line manager knowingly allowed this to continue and it had never been addressed with the Complainant or if it had there was no evidence presented to me in that regard.       

I am satisfied the outcome of the investigation centred on the allegation that the Complainant referred to his line manager as useless notwithstanding the other conclusions that were drawn following the investigation.  I am satisfied the nature of the initial allegation namely that the Complainant referred to his line manager has remained unchanged.      

I am satisfied at front and centre of the within case is the fact the Complainant referred to his line manager as useless and it is that undisputed fact on which the Respondent relies throughout.  It is not in dispute that the Complainant found himself subject to a disciplinary procedure as a result and I find I am unable to accept the peripheral rhetoric that would seek to persuade me otherwise.        

I am satisfied the investigation process in the within case was frustrated by the failure of the Complainant to attend and it was reasonable for the Respondent to conclude the investigation bearing in mind the passage of time.     

For completeness, it should be noted that an investigation is generally no more than fact finding and the collection of evidence and that is not to diminish in any way the importance of conducting a fair investigation. 

I note that based on the facts gathered during the investigation, the investigator concluded that a policy breach had occurred and that the Complainant’s actions constituted serious misconduct specifically a breach of the Bullying and Harassment Policy.  However, I note the Disciplinary Policy provides as follows:

“Once the investigation is complete, the investigating manager / officer will report their findings based on the evidence they have gained, and so advise you, as to whether they believe your conduct warrants you being invited to a disciplinary hearing.”   

I note the investigation outcome letter provides as follows under the heading overall conclusion:

“Based on the evidence available I am satisfied a policy breach has occurred.  I am satisfied that your actions are in conflict with the serious misconduct provisions, and I find your behaviour is a breach of the disciplinary policy under the headings serious misconduct of Breach of the Bullying and Harassment Policy.” [SIC] 

However, I find that the investigator by setting out that a policy breach had occurred and that the Complainant’s actions were in conflict with the serious misconduct provisions together with the finding that the Complainant’s behaviour was a breach of the Bullying and Harassment Policy has over-stepped the role of investigator which is to establish the facts. 

I am of the view this could have the potential to be prejudicial to the consideration of the case by the disciplinary decision maker which I find to be a flaw in the process bearing in mind the purpose of an investigation is fact finding and the collection of evidence. 

I find this to be a procedural deficiency in the conduct of the investigation.     

Notwithstanding, there may be circumstances in which an investigation is so flawed that it will contaminate the entire process, but an opportunity to correct alleged flaws in an investigation will generally arise at the disciplinary stage where a person may contest the evidence gathered in the course of the investigation.  In the instant case the Complainant chose not to attend the investigation. 

However, the opportunity was provided to him to contest the investigation findings at disciplinary, an opportunity he chose not to avail himself of.        

The Disciplinary Procedure

It is well-established, aside from the substantive cause of dismissal, the fairness of a decision to dismiss an employee stands or falls on the reasonable behaviour of the employer during the disciplinary process.  In the same way, an employee is expected to act reasonably during an investigation and to provide truthful explanations regarding the issues being investigated.

The Complainant in the within case did not engage with the investigation process on any level whatsoever.   

The Respondent complied with the provisions of its disciplinary policy and generally with best practice.  Details of the allegations were put to the Complainant, and he was given the opportunity to respond.  The Complainant was advised of the right to be accompanied to the disciplinary hearing and of the potential of dismissal as a disciplinary sanction outcome.  In addition, the Complainant was provided with and availed of the opportunity to appeal.  In fact, I note there were two appeal opportunities provided.    

I am satisfied there was a proper separation of the Investigatory, the Disciplinary and the Appeal procedure in terms of those appointed to the roles in the different stages of the process.    

I am satisfied the Disciplinary procedure was conducted in a fair manner.

For completeness I note where procedural deficiencies are identified these must be considered in line with section 6(1) of the Act which states that “having regard to all the circumstances.”  

In that context I note the case of Elstone v CIE (High Court, 13 March 1989, unrep.) where it was held:

“that the mere fact of some failing in due or agreed procedures is not a final and decisive matter for the court on appeal is clear from the provision of s. (6)1), that regard must be had ‘to all the circumstances’ and not to one circumstance to the exclusion of the other.”

For the reasons set out above I find the dismissal of the Complainant to be procedurally fair “having regard to all the circumstances” and when I consider the procedures do not need to be “a counsel of perfection” but rather “they must be fair.”

Substantive Matters

I must now decide if the decision to dismiss was a reasonable and proportionate response to the Complainant’s conduct. 

The concept of reasonableness is a core tenet of the Unfair Dismissals Act.  I am guided by the general approach of tribunals to cases of dismissal for conduct as set out above in Notrtake (Irl) Ltd v. Kenna. 

Band of reasonable responses

An employer’s decision to dismiss an employee on grounds of conduct is one to be assessed within the ‘band of reasonable responses’ open to an employer. The well-established principle is that once the fact of misconduct has been established on a balance of probabilities, the employer need only show that the decision to dismiss fell within the band of reasonable responses.

There is no dispute that dismissal was not the outcome of the disciplinary meeting and that a lesser sanction was applied namely that of a final written warning for a breach of the Respondent Bullying and Harassment Policy.  The Complainant exercised his right of appeal and it was found by the Appeals Officer that the sanction of a final written warning was too lenient and the sanction of immediate dismissal was imposed instead.  I note the Respondent Disciplinary Policy provides as follows:

“The appeal manager/officer is authorised to make a different decision if they feel it is appropriate e.g., they can:

·        …find that the level of disciplinary warning was too lenient and apply a modified or different sanction. 

I note several factors were cited in support of the elevation of sanction to dismissal including that the final written warning was too lenient given the Complainant's actions, lack of responsibility, failure to show remorse, and no effort to correct his behaviour.   I note also it is well-established that the power to increase a sanction on appeal is one that should be exercised cautiously and relied upon only in exceptional cases. 

I note the Complainant was afforded the right to appeal the sanction.   

I note the EAT in McGee v Peamount Hospital [UD136/1094] held as follows:

“………the task of the Tribunal is not to consider what sanctions the Tribunal might impose but rather whether the reaction of the Respondent and the sanction imposed lay within the range of reasonable responses”.

It is well-established that the decision-making body will look at the circumstances of each case and decide whether the response of the employer falls within the band of reasonable responses.  The test is whether the proposed sanction is within the range of responses that a reasonable employer in the same circumstances could impose taking into account the specific circumstances of the case and including consideration of factors like the disciplinary record of the employee and the length of service of the employee in determining the proportionality of the disciplinary sanction.  It is well-established that irrespective of the strength of the evidence and the fairness of the disciplinary process the sanction imposed must be proportionate. 

I have considered the case of Edward Boylan v. United Parcel Service of Ireland Limited [UD464/2011].  The Complainant in this case referred to his manager as a moron.  It was found the company had comprehensive company handbook including an extensive disciplinary policy.  The EAT determined that “for an isolated incident of the level complained of termination was a disproportionate sanction in light of the other options available.” 

I am satisfied there was a range of options in the Respondent’s disciplinary policy which, at a minimum, deserved some deliberation by the appeal hearing following the elevation of sanction.     

Furthermore, I have taken into consideration that what may be reasonable for one employer may not be held to be reasonable in respect of another employer.  For example, a large employer will have far more resources than a small business and will be able to consider sanctions short of dismissal such as redeployment which would not be open to a small business.  

It is well-established that a disciplinary procedure is intended to be progressive and to give an employee whose behaviour is not acceptable an opportunity so that dismissal can be avoided.  I am of the view the final written warning initially imposed in the within case would have satisfied this requirement.   It is my view that the Complainant’s initial sanction of the final written warning should have remained the sanction and should not have been elevated particularly in circumstances where the rationale for elevating the sanction has not been justified or explained to any degree of satisfaction. 

I am of the view the final written warning would have given the Complainant pause so that he could reflect seriously on his conduct and be given a chance to demonstrate that he could behave in line with the company’s values.  Furthermore, I am of the view the responsibility of managing the employment relationship falls unequivocally on an employer. 

To this end I note there appeared to be no attempt to address the Complainant’s alleged conduct namely his non-attendance at the monthly one-to-ones by the Respondent.  This was allowed to continue unabated until such time as the meeting on 25 November which I find to be inexplicable. 

If there was concern about the Complainant’s conduct I am certain his line manager would have been aware of the requirement to deal with it in line with the Respondent’s disciplinary procedure and if he was not so aware then he should have been in his capacity as line manager. 

In all the circumstances, I find the sanction of dismissal does not come within the band of reasonable responses and is disproportionate.  Having regard to all the circumstances when balancing the impact of the Complainant’s conduct on the Respondent as against the impact of the dismissal on the Complainant, I am of the view the sanction was disproportionate to the actions of the Complainant in referring to his line manager as useless. 

For the avoidance of doubt I do not condone in any way the Complainant’s behaviour towards his line manager which is unacceptable on any level.  However, in considering the proportionality of the sanction, I find that the Respondent’s conduct failed to comply with the requirement for reasonableness as set out in section 6(7)(a) of the Act of 1977 (as amended). 

I find the Respondent has not dislodged the presumption that the dismissal was unfair arising from the disproportionate sanction of dismissal when I consider the totality of the evidence. 

Redress

I find that the Complainant was unfairly dismissed by the Respondent and consequently his complaint is deemed to be well-founded.

Having regard 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.  By submission  the Complainant’s representative stated that his preferred remedy was re-instatement and that in the event of a finding in his favour, he wished to be returned to employment with the Respondent.

By response, the Respondent submits that re-instatement would be inappropriate as there is a fundamental breakdown in the relationship between the parties. 

I have very carefully considered the positions of the parties as I deliberate on this matter.    

It is noted that no evidence of mitigation of loss has been advanced and the Complainant has chosen not to give evidence and, therefore, cannot be questioned on this.  It is noted the Complainant was provided with the opportunity to file post-hearing supplemental submissions on this but the only material provided related to receipts of social welfare payments and documentation relating to attendance at a one-day training course.  

I note that the Complainant has not worked since his dismissal nor has he made any attempt to find work or if he has made such an attempt I have not been presented with any evidence thereto.  I note there appears to have been no attempt by the Complainant to mitigate his loss.  

No evidence has been offered by the Complainant as to why re-instatement would be appropriate apart from an assertion in closing submissions that this is the desired remedy.  I note the Respondent position that the actions of the Complainant contributed wholly to his dismissal.  I note the Respondent position that the Complainant is not entitled to seek any redress under the Act. 

Notwithstanding, having found that the Complainant was unfairly dismissed, I must now consider the remedy and I note that the Complainant is seeking re-instatement. 

I have given very serious consideration to re-instatement.   I have heard the Respondent’s objection to the prospect of the Complainant returning to his employment.  I note the Complainant has not accepted that his conduct in calling his line manager useless is inappropriate   However, I cannot accept that a verbal interaction with his line manager can be the basis for an employer to lose faith in an employee of 17 years standing.    

I note the Complainant was not dismissed on the grounds that his misconduct was “criminal or quasi-criminal in nature” Desmond Brennan v Institute of Technology Carlow[UD281/2000] such as assault, fraud or theft.   I am of the view that in such circumstances there would be no doubt but that the bond of trust between the parties would be irrevocably severed. 

I have noted and I am mindful of An Bord Banistíochta, Gaelscoil Moshíológ v the Labour Court [2024] IESC 38, where the Supreme Court held as follows:

“The remedy of reinstatement under s. 7(1)(a) can normally be said to be only applicable in a case where the WRC or Labour Court considers that the employee’s dismissal has been totally unfair and unjust, such as to require the employer to take the person back in the same job, without any break in service or loss of pay, and notwithstanding the inevitable breakdown in the relationship between them. It is a very strong remedy, and is only applicable in clear cut cases, where it is the appropriate response to perhaps high-handed and unjustifiable conduct on the part of an employer, and where any other remedy is not sufficient vindication of the employee.”

I do not find compelling the submission that because the Respondent is opposed to reinstatement, it should not be granted.      

However, in my careful deliberations on the matter of redress I have taken into account that which is set out above in An Bord Banistíochta, Gaelscoil Moshíológ v the Labour Court.

Having considered the totality of the evidence, I do find beyond doubt that the Complainant contributed to a significant degree to the circumstances in which he now finds himself and I have taken this into account when considering re-instatement and ultimately rejecting same as a form of redress in the particular circumstances of this case. 

I do not find re-instatement to be an appropriate form of redress.      

I have taken into consideration the age of the Complainant, the length of his service with the Respondent together with the fact the Respondent employs over 13,500 employees in this jurisdiction as cited in a recent press release announcing plans to open ten new stores nationwide.

The size of the Respondent enterprise is a significant factor in my decision to direct re-engagement.   

I find therefore, for the reasons set out above, that the most appropriate form of redress is re-engagement together with a final written warning to remain on the Complainant’s file from date of re-engagement for one year which was the original sanction imposed and which I am satisfied is within a band of what could reasonably have been imposed by way of sanction.     

For the avoidance of doubt, I do not direct re-engagement in his previous role.  I am satisfied that there are many options for General Warehouse Operative roles such as that held by the Complainant given the nature and size of the Respondent enterprise. 

The Respondent is directed to re-engage the Complainant within four weeks from the date of this decision.  The period from the date of his unfair dismissal to the date of his re-engagement shall be regarded as a period of unpaid suspension.    

The initial sanction of a final written warning shall remain on file for one year from the date of the Complainant’s re-engagement. 

It is to be hoped the Complainant will avail himself of the opportunity now provided to him to return to the workplace and to avail himself the opportunity to modify his behaviour, engage with his employer and demonstrate due regard for the Respondent’s policies and procedures and due regard and respect for his colleagues and for his line management. 

CA-00064526-002

This is a complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973. 

I find this complaint to be not well-founded in the circumstances. 

CA-00064526-001

For the reasons outlined above I decide this complaint is well-founded.  The Respondent is hereby directed to re-engage the Complainant within four weeks from the date of this decision.  The period between the date of the Complainant’s unfair dismissal and the date of re-engagement shall be treated as a period of unpaid suspension. 

The final written warning on the Complainant which was the initial sanction imposed by the Respondent shall remain on file for a period of one year from the date of the Complainant’s re-engagement. 

CA-00064526-002

I decide this complaint is not well-founded. 

Re-instatement; re-engagement; serious misconduct; gross misconduct;  elevated sanction;