Complainant

Respondent

Parties

Mr Seamus  Behan

Liberties Recycling Training & Development

Complainant

Respondent

Anonymised Parties

Representatives

Mr Thomas Behan

Ms Lian Rooney 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-00064982-001

25/07/2024

This matter came before the Workplace Relations Commission dated 25/07/2024 as a complaint submitted under section 8 of the Unfair Dismissals Act, 1977 claiming unfair dismissal.  The aforesaid complaint was referred to me for investigation.  A hearing for that purpose was scheduled to take place on 23/05/2025. 

The Complainant at all material times was employed as a van driver/collector.  The Respondent is a social enterprise with charitable status that provides training, rehabilitation and employment to people in recovery from drug and alcohol addiction. 

The Complainant worked a 39-hour week for which he was paid €487.50 gross per week.  The Complainant commenced his employment with the Respondent company on 26/05/2014 with such employment terminating by way of dismissal for gross misconduct on 21/02/2024. 

The Complainant claims he was unfairly dismissed and that the dismissal was unfair due to breaches of fair procedures, failure to follow internal policies and reliance on flawed and incomplete evidence. 

The Respondent’s position is that this claim is not well-founded and the Complainant was dismissed by reason of his own actions that were considered gross misconduct after a fair and impartial disciplinary and appeal process.   

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

CA-00064982-001

Overview of written submission

The Complainant worked in the Respondent company for over a decade under a Wage Subsidy Scheme (WSS) for people with disabilities.  He suffers from severe dyslexia and is functionally illiterate as well as other physical disabilities, facts known to management.  Despite this, the disciplinary process failed to accommodate his disability, as some key documents such as the incident report findings were not adequately explained or read to him.  The incidents in question occurred on 14 December 2023 (a handshake with DS) and 20 December 2023 (an altercation between the Complainant and DS).  The Complainant was dismissed on 21 February 2024 following a disciplinary hearing that he contends was procedurally flawed and based on incomplete and biased evidence.

The Complainant was not informed of the DS complaint about the handshake until after the altercation on 20 December.  He only became aware of the issue when DS mentioned it during their confrontation. 

Had management informed the Complainant earlier about DS’s discomfort, he could have apologised and resolved the matter informally, potentially avoiding escalation. 

The employer’s failure to address this complaint promptly breached their own grievance-handling procedures outlined in the Employee Handbook which emphasizes informal resolution of disputes where possible.

Contradictory Witness Statements Regarding 20 December 2023 

Witness accounts regarding the events of 20 December are inconsistent:  Some witnesses (e.g., PB) state that the Complainant was shouting but make no mention of physical aggression.  Others (e.g., SO’R) allege that the Complainant grabbed DS by the neck, but PB—who was physically between them—does not corroborate this claim.  EB and DB describe mutual pushing between the Complainant and DS but differ on who initiated it.  These contradictions undermine the reliability of the investigation’s findings and cast doubt on whether the Complainant’s alleged actions constituted gross misconduct.

Failure to Use CCTV Footage to Verify Key Events  

During the disciplinary process, the Complainant requested that CCTV footage be reviewed to confirm his version of events, including that he walked with DS from the van to the office without physical aggression.   The employer refused to use CCTV footage, citing an alleged lack of a policy permitting its use in disciplinary investigations.  However, CCTV footage had been used in a previous disciplinary investigation involving the Complainant in 2015, demonstrating inconsistency in its application.

The refusal to review available evidence in a case involving serious allegations like assault suggests a lack of transparency, thoroughness and fairness in the investigation process. 

Errors in Reporting and Procedural Inconsistencies 

The investigation report (enclosed in the employer’s Appendix 4 submission) incorrectly dates the incident on 20 December 2023 as occurring in January 2024—a significant error that raises questions about the accuracy and reliability of the report as a whole.  The employer relied heavily on their own filtered summary of witness statements rather than providing co-signed or verbatim statements from staff members, further reducing transparency.

Failure to Accommodate the Complainant’s Disability

As someone with severe dyslexia and illiteracy, the Complainant required reasonable accommodations during the disciplinary process, including having all documents read to him clearly and ensuring he fully understood their contents.  While some efforts were made (e.g., having MF read documents), these were inconsistent and insufficient given the complexity of the allegations against him.

Disproportionate Sanction Given Mitigating Factors

The dismissal decision failed to adequately consider mitigating factors: the Complainant’s long service with the Respondent and his previous good record were not given sufficient weight.  His frustration during the altercation stemmed from management’s failure to inform him earlier about DS’s complaint regarding the handshake—a procedural lapse outside his control.

Given these factors, dismissal for gross misconduct appears disproportionate compared to lesser sanctions such as mediation or retraining.

Victimisation 

The fact that the Complainant was unaware of DS's discomfort with the handshake until the altercation on December 20, 2023, suggests that DS may have escalated the situation without giving the Complainant an opportunity to address the initial concern.   The contradictory nature of witness statements regarding the December 20 incident, particularly the discrepancies in accounts of physical aggression, indicate bias or exaggeration in DS’s version of events.

Procedural Breaches

The dismissal process failed to adhere to both internal policies and statutory guidelines under Irish labour law: 1. Breach of Internal Policies: The Employee Handbook requires informal resolution of disputes before formal disciplinary action is taken (Section 2.1.4). No attempt was made to mediate or resolve DS’s complaint informally before escalation occurred on 20 December. 2. Breach of WRC Guidelines: The Workplace Relations Commission Code of Practice on Grievance and Disciplinary Procedures emphasizes fair investigations that consider all evidence impartially.  By refusing to review CCTV footage and relying on contradictory witness statements, the employer failed to meet this standard. 3. Failure to Provide Reasonable Accommodation: Under Irish equality legislation, employers are required to accommodate employees with disabilities during workplace processes, including disciplinary hearings.

The Complainant’s dismissal was procedurally flawed due to delayed notification of complaints, refusal to use available evidence (CCTV footage) even though this form of evidence was used in the past, reliance on contradictory witness statements, failure to accommodate his disability, and disproportionate sanctioning given mitigating factors.  These failures render his dismissal both unfair and unlawful under Irish labour law.

Law relied upon by Complainant

Unfair Dismissals Act 1977, Section 6(1)

Unfair Dismissals Act 1977, Section 7(2)(b)

Bank of Ireland v Reilly [2015] IEHC 241

Summary of direct evidence of Complainant on oath

The Complainant submits he didn’t shake his hand and he raised his voice in the office and that he shakes everybody’s hand everyday of the week and why wasn’t he informed of what happened on 14 December.  The Complainant submits that he didn’t know DS had arthritis.  The Complainant  submits no one explained the 14 December to him and on the 20 December DS was at the van and he started mumbling to the Complainant and then he got aggressive.  The Complainant submits DS walked off and he came back and he was aggressive and he (DS) deeply upset the Complainant.  The Complainant submits the CCTV would prove he was innocent and that DS pushed him at the shoulder and he raised his voice and there was a crowd around him. 

The Complainant submits he was attacked because of his religious beliefs and everybody is twisting and turning the statements and why didn’t they keep the CCTV footage.

It is verified with the Complainant by his representative that he is saying he was attacked because of his religious beliefs and he is asked if he had mentioned this to which the Complainant responds that management never investigated his statements and that he never assaulted anybody.   The Complainant submits DS called him names and he states he (the Complainant) didn’t call him any names.  The Complainant submits he shakes people’s hands every day and he didn’t hit anybody and he didn’t boot any door either and that the CCTV would have proved his innocence.  The Complainant submits he is not going to get another job now and he loved his job.  The Complainant submits PM did help him a number of times.  The Complainant representative makes reference to a previous disciplinary incident in which the Complainant was involved in which CCTV footage was used. 

Summary of cross-examination of Complainant

The Complainant accepts all the relevant written material was read out to him and that he had the right to representation to which he responds he had asked for somebody else but she wasn’t available.  The Complainant submits he didn’t understand any of it and he was emotionally broke.  The Complainant confirms he had received advance notice and he submits the notetaker shouldn’t have been there because she had made a statement against him.  The Complainant is asked if he was co-operative to which he responds he was told he would be getting his job back. 

Summary of Complainant closing submission

It is submitted the Complainant was dismissed unfairly and management did not follow procedures.  It is submitted they decided to fire him and selected info that suited this.  It is submitted the Complainant was told multiple times that everything would be ok.  It is submitted the CCTV was purposefully left out and it is submitted that you would think management would have kept that CCTV especially when the Gardai were involved. 

CA-00064982-001

Overview of written submission

A formal complaint was made against the Complainant on 09 January 2024 by DS (former colleague) in relation to incidents which occurred on the 14 December 2023 and on the 20 December 2023.  Following the incident on the 20 December 2023 involving an altercation between the Complainant and DS, both individuals were placed on fully paid suspension to facilitate an investigation into the matter.  The allegation of inappropriate behaviour was investigated fully by Mr Adam Moloney, Manager, and multiple witnesses were interviewed as part of the investigation.  Both the Complainant and DS were given an opportunity to review and respond to witness statements and investigations.

In the Investigation Report findings, Mr Moloney concluded that “it is these investigators view that the incident of the 14/12/23 is unclear in relation to the intent, if any, of the Complainant.   It is clear that DS wasn’t appreciative of the handshake by his own recollection and made efforts not to engage further with the Complainant following that handshake”.  

In relation to the incident on 20 December 2023, Mr Moloney noted “On the 23/01/24 [this shouldread 20 December 2023] the Complainant attempted to engage in conversation with DS but DS did not reciprocate the Complainant’s efforts to converse.  The Complainant did not appreciate the lack of response and began a series of efforts to elicit a response.  It appears that an argument then ensued which eventually saw DS seeking to move away from the situation.  What is most worrying is the Complainant decided to follow him and did not wish to let it go despite several interventions from others.  The Complainant was requested to stop by several witnesses but continued not only to ignore their requests to desist but to push past employees trying to intervene to prevent the situation.  The Complainant also forcibly entered the room that DS had moved to remove himself from the situation on two occasions.  The calamity that ensued during this time was wholly inappropriate and unacceptable for any workplace and it is clear to see why the Gardai were requested to enter the workforce due to seriousness of the situation”.

Mr Moloney recommended in his report that the Complainant should attend a disciplinary hearing for allegations of inappropriate behaviour towards DS, highlighting that the matter may be considered as a gross misconduct offence which may result in a sanction of dismissal.

Following the issuing of the investigation report the Complainant was invited to attend a disciplinary hearing.  The Complainant was advised of his right to bring a representative to the hearing and the allegation of gross misconduct was highlighted.  During the Disciplinary hearing, the Complainant stated that CCTV footage should be reviewed to confirm DS walked with the Complainant from the van to the office.  It was confirmed to the Complainant via the outcome letter that the CCTV could not be used as the Respondent does not have a CCTV policy in place that allows for it to be used during a disciplinary investigation.  In any case, the CCTV system automatically clears and records over itself after a period of two weeks and so was no longer available at the point that the Complainant raised this matter.   The Complainant also apologised and referenced having anger management issues which the Disciplinary Manager considered, however ultimately this was not considered reasonable nor sufficient by Mr Murphy who confirmed “it was wholly unacceptable to treat any employee to the level of aggression you exhibited”…”I believe there is significant risk that there may be a reoccurrence of the behaviour you exhibited on the 20/12/2023, despite your reassurances”.

The outcome of the disciplinary hearing resulted in the Complainant’s termination of employment for gross misconduct.   The Complainant was given the opportunity to appeal the decision which he availed of in his appeal letter to the CEO Mr Philip Moloney.  The appeal letter referenced an incident from February 2023 which the Complainant said he did not feel was handled correctly.  The Respondent notes that this concerned an incident where the Complainant was verbally abusive towards a manager TS.   At the time, the Respondent handled the matter informally in order to support the Complainant and subsequently provided him with eight therapy sessions paid for by the Respondent.

At the time, the Respondent outlined the support given and highlighted the fact that the Complainant’s behaviour was unacceptable via letter. 

In the appeal letter the Complainant also referenced that throughout his tenure he strived to maintain a stellar record, however the Respondent would highlight that he had received a final written warning for his behaviour in 2021 and although the Respondent understands that this warning was no longer active on the Complainant’s file, it certainly does not reflect the assertion that he strived to maintain a ‘stellar record’.

Lastly, the letter of appeal referenced the incident on 14 December 2023, with the Complainant stating that had this incident been properly addressed at the time, that the situation would not have escalated as it did.  An appeal hearing was held by the CEO on 01 March 2024, where the Complainant said that he felt the incident on the 20 December would not have happened had he known about the incident on the 14 December.  The CEO considered the appeal and held a meeting with the Complainant on 05 March to communicate the outcome of the appeal.

The CEO confirmed his decision to uphold the decision of termination of employment, on the basis that he had reviewed all disciplinary material along with the Complainant’s appeal grounds. The CEO explained that the incidents on 14 December and 20 December were separate, and that the Complainant failed to take full responsibility for his actions throughout the process.  The CEO also emphasised that the behaviour of the Complainant was damaging and totally unacceptable.

The Respondent has a duty of care to their employees to ensure that the workplace is a safe environment.  The Respondent would have set a dangerous precedent if it had failed to deal with this matter in an appropriate manner.  The Complainant was dismissed by reason of his own actions that were considered gross misconduct. In accordance with Section 6(4) of the Unfair Dismissals Act 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.

Having considered all the facts, the responses and explanations of the Complainant were not considered reasonable nor sufficient such as to mitigate the extreme seriousness of his actions.  The Complainant’s actions amounted to gross misconduct whereby he was in breach of the Respondent’s Disciplinary Policy.

When considering what sanction to apply, the Respondent had regard to the seriousness of the allegations and also the representations made by the Complainant within the process itself.  The sanction of dismissal was justified in the circumstances of the case.  His behaviour amounted to gross misconduct, and it was clear that the Complainant did not accept the seriousness of what he had done.  The Disciplinary Manager was not convinced that the Complainant would not engage in the same behaviour again.

Law relied upon by the Respondent

Unfair Dismissals Act 1977 – 2015 section 6(4)

Looney & Co. Ltd v Looney, UD 843/1984

Tesco Ireland Limited v Martin Cording UDD1811

A Warehouse Team Leader v A Fresh Foods Business (ADJ-00012944)

Element Six LTD v Mr Patrick O’Connor UDD 2221

Murray v Meath County Council, UD 43/1978

Castolin Eutectic Ireland Ltd v Bogdan Vasarheli UDD2313

Summary of direct evidence of Respondent witness Mr Adam Moloney (hereafter AM) on affirmation

AM outlines he has been a manager in the Respondent company for twelve years.  The witness submits there were amendments made to the employee handbook in June of 2023 and all staff confirmed receipt of same.  The witness submits he was assigned to investigate two incidents that had occurred on 14 December and 20 December.  The witness submits the CCTV was not available and there is no provision for the use of CCTV in disciplinary hearings in the company procedure.  The witness submits the CCTV had been recorded over during the Christmas period as it is always destroyed after two weeks. 

The witness submits the Complainant had representation during the meeting and that he was vague with most of his answers.   The witness submits the Complainant showed up as requested and he said he was deeply affected by all this.  The witness submits the Complainant made inferences about the witness statements but that his behaviour on the day was off the charts and that he was barging through a door which was corroborated by more than one witness. 

The witness submits the Complainant raised no issues regarding the process and all documents were read to him.  The witness submits he did not request anything by way of accommodation and that he was represented by a colleague of his choosing. 

The witness submits the Complainant was shouting abuse at his colleague DS and that when he (the Complainant) was asked to leave the area he wouldn’t leave and that he came back multiple times at DS.  The witness submits there were statements from a number of witnesses.   

Summary of cross-examination of Respondent witness AM

The witness is asked what was changed in the employee handbook and his attention is drawn to paragraph 2.1.4 Stages of Disciplinary Action which provided as follows:

“Informal

Prior to formal disciplinary action being taken every effort will be made to resolve the matter informally.  Where an employee’s performance or conduct falls below an acceptable standard, the company will discuss with you the nature of the fall-off from standard with a view to agreeing a solution.”

It is put to the witness that this was not complied with regard to what is referred to as the “firm handshake” incident on 14 December to which the witness responds the reason for the dismissal was not linked to the incident on the 14 December.  When asked about the witness statement that provides the Complainant reached over past P and grabbed DS by the neck AM responds that he believes this to be true.  AM confirms that he read every witness statement and it is put to him that he selected the pieces that suited him to fire the Complainant and that there was conflicting information.  Reference is made by the Complainant representative to the door kicking incident and he asks if the door was damaged.  AM confirms the information came from the witness statements to which the Complainant representative states that there is conflicting information all over the statements. 

Summary of direct evidence of Respondent witness Mr Philip Moloney (hereafter PM) on oath

PM outlines that he is the CEO of the Respondent company and that he heard the Complainant’s appeal against his dismissal for gross misconduct.  AM confirms the Complainant was notified in advance and that he had representation.  The witness outlines he reviewed all the materials including the witness statements – everything.  The witness submits the grounds of appeal were that the incident was exaggerated and he (the Complainant) disagreed with the statements made by the witnesses.  The witness submits when asked about mitigation the Complainant kept coming back to the incident on the 14 December.  PM submits that no formal complaint had been made at the time arising out of that incident.    

The witness submits he was dealing with the suspension and the incident on 20 December.  The witness submits the Complainant did not request to question any of the witnesses and that he raised no issues at all during the process. 

The witness submits all documents were read to the Complainant and he (the Complainant) had selected a supervisor to do this.  The witness submits he hadn’t requested any additional supports or accommodation and that he just kept going back to the incident on 14 December.  The witness submits he did consider the Complainant’s length of service and that he had always got on well with the Complainant and always tried to help him but that what had occurred on 20 December was damaging and unacceptable and that the Gardai had to be called. 

PM submits nothing like this had ever happened before in the 27 years he had been in business and during that time he taken on many people in recovery and people with other issues but never before had the Gardai had to be called. 

The witness submits he did not consider any other sanction because the incident that occurred was too serious and he has to protect his staff and that after reading everything the behaviour on 20 December was appalling.  PM submits he had to maintain impartiality and to remain as objective as possible but that he does have lots of time for the Complainant and offered him 6 weeks’ pay when the appeal outcome issued together with paid counselling sessions. 

The witness submits he had paid for the Complainant in the past to have counselling for anger management issues. 

Summary of cross-examination of PM

It is put to the witness that he had not paid for the Complainant to have counselling for anger management issues in the past and that it was counselling on the breakup of his marriage that he had received.  PM is categoric in his response that it was anger management counselling that had been arranged and paid for by the Respondent for the Complainant.

The witness reiterates he dealt with the information from all the witness statements and he upheld the decision to dismiss and the incident on the 14 December bore no relation to what occurred on 20 December which is the incident that was considered. 

Summary of Respondent closing submission

The Complainant was dismissed for gross misconduct after a fair and impartial hearing.  The Complainant has said he didn’t raise any issues with the process.  The matter was investigated fairly and there were multiple witnesses and he had the opportunity to respond to witness statements.  It is submitted the Complainant was dismissed by reason of his own actions and the seriousness of the allegations which he does not accept and he did not accept the seriousness of what he did. 

It is submitted that both parties were suspended pending investigation of matters on 20 December and the process was fair and impartial.

CA-00064982-001

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 manner in which events unfolded in the final stages of the employment relationship in the within case.   The timeline of the relevant events is not in dispute albeit each party sought to interpret events in accordance with their respective positions.  

Notwithstanding, 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

Unfair dismissal.

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 was highlighted by the Employee Appeals Tribunal in Looney and Co Ltd v. Looney [UD 843/1984] 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. 

This is the standard by which the Respondent’s actions must be judged.   The Act places the burden of proof on the employer to demonstrate that the dismissal was fair.  As part of exercising this burden of proof the Respondent needs to show that fair process and procedures were applied.

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 guilt 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.”

Accordingly, a respondent must have a genuine belief based on a fair investigation that the complainant was guilty of the alleged wrongdoing and afforded him/her fair procedures.      

In the case of Samuel J. Frizelle v New Ross Credit Union [1997] IEHC 137 the High Court set out the following legal principles to be observed by an employer to support a decision to terminate employment for misconduct:

“Where a question of unfair dismissal is in issue, there are certain premises which must be established to support the decision to terminate employment for misconduct.

1. The complaint must be a bona fide complaint unrelated to any other agenda of the Complainant.

2. Where the Complainant is a person or body of intermediate authority, it should state the complaint, factually, clearly and fairly without any innuendo or hidden inference or conclusion.

3. The employee should be interviewed, and his version noted and furnished to the deciding authority contemporaneously with the complaint and again without comment.

4. The decision of the deciding authority should be based on the balance of probabilities flowing from the factual evidence and in the light of the explanation offered.

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

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

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 Services Ltd [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 Panasov v. Pottle Pig FarmUDD1735 the Labour Court outlined the importance of applying fair procedures in relation to the investigation of allegations of misconduct where it held that: “The Court is of the view that a failure to properly investigate allegations of misconduct or to afford an employee who is accused of misconduct a fair opportunity to advance a defence will take the decision to dismiss outside the range of reasonable responses thus rendering the dismissal unfair.”

It is well established that 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.”

Further to the above principles, it has been well established in case law that it is not the function of an Adjudication Officer to re-investigate disciplinary complaints or to substitute their view for that of a Respondent employer.  Rather the focus is whether the decisions arrived at are rational, reasonable and based on the information available.  

The Labour Court summarised this rationale in the case of Clancourt Management Ltd T/A Clancourt Management v. Mr Jason Cahill [UDD2234], where it held: 

“In cases under the Unfair Dismissals Act where misconduct is stated as the basis for dismissal the test for this Court is that which was set by Lord Denning in the British case of British Leyland UK Ltd v. Swift (1981) IRLR 91, to determine if the dismissal falls into a ‘band of reasonableness’, a test which was confirmed in this jurisdiction in Foley v. Post Office (2000) ICR1283. Lord Denning stated that ‘If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might have dismissed him, then the dismissal was fair.’ He went on to describe ‘a band of reasonableness’, within which one employer might reasonably take one view; another reasonably take another view but ‘If it was quite reasonable to dismiss him, then the dismissal must be upheld as fair; even though some other employers may not have dismissed him’. Therefore, the test for the Court in cases where misconduct is stated to be the basis for dismissal is to ask does the decision to dismiss fall into this band of reasonableness? ......It is not the function of the Court to re-investigate disciplinary complaints. In looking at the outcomes of the investigations, the Court needs to consider if the decisions arrived at are rational, based on the information available to the investigators…….There is no doubt that a record of good service to an employer might be a significant factor for consideration in a possible dismissal. Equally, however, it may be of little help in evaluating possible action. It depends on the particular circumstances of the case………It is not the Court’s role to substitute its view for that of the Respondent and to determine if the Court would have dismissed the Complainant if it found itself in the role of the Respondent……”

The Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000 (SI No. 146/2000) sets out the general principles that should apply in the operation of disciplinary procedures and the promotion of best practice in giving effect to these procedures.  In considering the question of fairness of the various processes in the instant case I paid particular attention to the question of compliance with the provisions of S.I. 146 of 2000.

I have summarised the requirements of SI No. 146/2000 as follows:

·        To comply with the general principles of natural justice and fair procedures;

·       That the details of complaints are put to the employee, that he/she has the right to respond and challenge evidence, the right to representation and the right to a fair and impartial determination of the issues concerned;

·       That the basis for disciplinary action is clear, that the range of penalties that can be imposed is well-defined and that an internal appeal mechanism is available;

·       That generally, the stages in a disciplinary procedure will be progressive, for example, an oral warning, a written warning, a final written warning, dismissal and that there is some consideration of other appropriate disciplinary action short of dismissal.

The Relevant Facts

The dismissal of the Complainant, as a fact, is not in dispute and therefore, it is for the Respondent to establish that in the circumstances of this case the dismissal was fair.

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 a colleague of the Complainant made a formal complaint against him (dated 23/01/2024) that on 14 December 2023 he (the Complainant) aggressively shook and hurt his hand and that on 20 December 2023 the Complainant assaulted him physically and verbally.

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 due to breaches of fair procedures, failure to follow internal policies, and reliance on flawed and incomplete evidence. 

The Suspension

I note following the incident on 20 December 2023 in the workplace both the Complainant and his colleague were suspended on full pay until further notice pending an investigation into said incident.    

In Bank of Ireland v Reilly [20145] IEHC 241, Noonan J found that -

“The suspension of an employee, whether paid or unpaid, is an extremely serious measure which can cause irreparable damage to his or her reputation and standing. It is potentially capable of constituting a significant blemish on the employee’s employment record with consequences for his or her future career.  As noted by Kearns J. (as he was then) in Morgan v Trinity College Dublin [2003] 3 IR 157 there are two types of suspension, holding and punitive.  However even a holding suspension can have consequences of the kind mentioned. Inevitably, speculation will arise as to the reasons for the suspension on the premise of there being no smoke without fire.”

Thus, even a holding suspension ought not be undertaken lightly and only after full consideration of the necessity for it pending a full investigation of the conduct in question.  It will normally be justified if seen as necessary to prevent a repetition of the conduct complained of, interference with evidence or perhaps to protect persons at risk from such conduct. It may perhaps be necessary to protect the employer's own business and reputation where the conduct in issue is known by those doing business with the employer.  In general, however, it ought to be seen as a measure designed to facilitate the proper conduct of the investigation and any consequent disciplinary process.

The corollary presumably therefore is that an employee ought not be suspended where suspension is not necessary to facilitate these matters.”

Accordingly, I am of the view that the suspension of the Complainant was reasonable when I consider the account of events as they evolved in the workplace on that day through the lens of more than ten eyewitnesses.    

I note that both parties involved in the incident that occurred on 20 December 2023 were suspended on full pay by correspondence as follows:

“You are suspended on full pay until further notice pending investigation into an incident that happened on 20th December 2023.”

Procedural Fairness

The Investigation

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] 

I note in the written submissions the Respondent states multiple witnesses were interviewed as part of the investigation.  I note there were 12 witness statements.  I note the Complainant was provided with the opportunity to review the content of the witness statements and he was provided with the opportunity to respond to the investigation notes.     

I note in his written submissions the Complainant outlined a number of procedural issues which he contended rendered the dismissal unfair including among which the reliance by the Respondent on what the Complainant describes as contradictory witness statements.  I have carefully reviewed the witness statements and while there may be some inconsistencies (three as referred to by the Complainant)  the general thrust of the statements provided by those who witnessed events as they unfolded on the 20 December 2023 are crystal clear and have left me in no doubt that a physical and verbal altercation did take place in the workplace on that date between the Complainant and DS.  

Furthermore, I am in no doubt that there was name calling and a significant level of aggression. 

It is not in dispute that the Gardai were called to attend the workplace such was the level of the disorder.   

I note the Complainant submits the investigation report incorrectly dated the incident on 20 December 2023 as occurring in January 2024 and asserts this is a significant error that raises questions about the reliability of the investigation as a whole.  I find I am unable to accept the Complainant’s assertion that this constitutes a significant error in the overall context of the report itself as the narrative of the report sets out the sequence of events accurately and precisely and I am not satisfied there was ever a doubt in the minds of either party as to the correct date of this incident in light of the repercussions reverberating from the incident. 

Furthermore, I note the Complainant, when provided with the opportunity to respond at the investigation stage, chose not to answer the direct questions when asked if he was angry or if he shouted abuse at his colleague as alleged and instead provided responses including “I don’t recall or I was deeply affected or I was upset or I was upset and in shock or I don’t recall I was in shock.” 

I note the Complainant states he does not recall being held back by colleagues and when asked about the door and the number of times he kicked it responded he doesn’t know.

When asked if he went towards DS in reception I note the Complainant responded that he doesn’t remember he might have.  The Complainant responded he is not sure how many times he came into the room where DS was. 

I note that when asked what happened when he first got to reception on that day the Complainant responded that he didn’t have anything to say and that he had already answered all the questions. 

I am satisfied the Complainant was given every opportunity to challenge the allegations against him and he understood what those allegations were. 

In relation to the investigation process I am satisfied the allegations were put to the Complainant in advance of any investigation meeting and that that the terms of reference were read out to the Complainant by AM on 10/01/2024. 

I note the Complainant, at the time, did not identify any aspect of the investigation process to be lacking or defective.  I note there were no procedural deficiencies highlighted by the Complainant at the time with regard to the investigation process.   

The investigation concluded the Complainant had a case to answer in respect of alleged gross misconduct and the matter was progressed under the Respondent’s disciplinary policy.

The Disciplinary Procedure

I find I am not in agreement with the position adopted by the Complainant representative there was a failure to accommodate the Complainant’s disability during the disciplinary process given the complexity of the allegations against him.  I do not accept the allegations against the Complainant were complex on any level.     

I am unable to find there was any complexity in the allegations namely allegations of verbal and physical assault.   On the contrary, the Complainant himself in his appeal letter in response to the finding that he had continuously exhibited aggression towards his colleague, submits that his demeanour on the day was not driven by inherent aggression but rather by a sense of frustration and confusion. 

I find it noteworthy that he does not deny what occurred and seeks to attribute it to the lack of information provided to him regarding the incident on 14 December which he submits “left him in the dark” whilst at the same time taking full responsibility for his behaviour and recognising the impact said behaviour may have had on the team and workplace environment yet continuing to seek to deflect. 

Furthermore, the Complainant in his appeal letter submitted that he was deeply remorseful for his actions and the consequences those actions had brought.  I note the Complainant at hearing alleged that it was he had been attacked by DS because of his religious beliefs.  I note there was no reference to this during the investigation or the disciplinary process or the appeal process.  I find it extraordinary that the Complainant would wait until day of hearing before introducing the narrative of an attack on him because of his religious beliefs. 

I find the evidence of the Complainant not to be credible on this point and I find the Complainant’s position on this matter to be implausible when I consider the following.  The Complainant at the investigation hearing stated he couldn’t remember if he brought up Pope John Paul.  The Complainant’s colleague in his statement after he had raised a formal complaint stated as follows:

“Shay (the Complainant) put his hand out and I automatically put mine out and he grabbed my hand and squeezed it I told him to let go that he was hurting me…..he replied what and went on to talk about the pope John Paul….”

I am guided by the findings of the Labour Court in Rezmerita Limited v Katarzyna Uciechowska[DWT 1018] where the Court heldas follows:

“In this case there is a marked conflict in the evidence tendered on behalf of the Respondent as against that given by the Claimants in relation to all material issues arising in this case.  There was also an absence of any probative independent corroboration on either side.  The standard of proof necessary to rebut the presumption of non-compliance is the preponderance of probabilities, usually referred to as the balance of probabilities.  In Miller v Ministry of Pensions [1947] 2.All E.R, 372 Denning J. (as he then was) explained, in relation to this standard of proof, that: -

“[i]f the evidence is such that the Tribunal can ‘say we think it more probable than not’ the burden is discharged, but if the probabilities are equal it is not.”

Applying that which is set out above in Rezmerita I am satisfied it is more probable than not that it was the Complainant brought up religion by his own reference to the Pope.    

The Complainant would like me to accept that, had the previous incident that took place between the same two parties, referred to as the firm handshake incident by the Complainant, on 14 December 2023 been dealt with by the Respondent then the incident on the 20 December would not have happened.  I am unable to accept that proposition as there is absolutely no way of knowing what would have happened if the firm handshake incident had been investigated which I note the Complainant in direct evidence denies in any event.  Furthermore, I am obliged to consider the facts and the evidence adduced in my investigation of this complaint and not to engage in speculation and conjecture as to what might or might not have happened. 

From the evidence at hearing and the documentation provided it is clear that at the early stages of the disciplinary procedures the Complainant was clearly on notice of the charges against him, was given adequate notice of hearings, was provided with the right to representation and was given the opportunity to respond to issues under consideration prior to a decision being taken to impose a sanction.  In addition, the Complainant was provided with and availed of the opportunity to appeal. 

I am satisfied there was a proper separation of the Investigatory, the Disciplinary and the Appeal procedure. 

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. 

I am satisfied Complainant never, at any stage in the investigation or disciplinary process, asked any questions about the processes whatsoever.  Accordingly, if the Complainant was unclear as to what was happening, the Respondent was never put on notice of this. 

On balance, I am satisfied that overall the Complainant was afforded adequate fair procedures.

CCTV

For completeness I will address this matter as the central plank of the Complainant’s case suggests that if the CCTV footage had been available it would “prove that he was innocent” as submitted at hearing. 

Much was made by the Complainant representative of the failure to use CCTV footage to “verify key events”.  I note the Respondent position that there is no policy in place regarding the use of CCTV in disciplinary proceedings and in any event it had been recorded over during the Christmas period. 

I note the Complainant’s position that CCTV footage had been used by the Respondent in another disciplinary proceeding which featured the Complainant in 2015.  I note this referred to unauthorised entry to the factory with an unknown person on a Saturday which had been captured on CCTV as set out in correspondence contained in Appendix B of the Complainant’s submission. 

However, it is well-established now ten years later in 2025 that if an employer wishes to use CCTV footage in a disciplinary process there is a requirement to have a comprehensive policy in place clearly communicating to employees that footage captured may be used not only for security purposes but also employee investigations and disciplinary proceedings. 

Furthermore, the use of CCTV footage has to be GDPR compliant.  The employee must know that CCTV is being used, where the cameras are and what the purpose of the surveillance is.  As already stated I address this matter solely for completeness and I note the Respondent does not have a policy in place. 

Payment of Notice

For completeness, I will address the payment of notice to the Complainant.  It is well-established that in cases of gross misconduct, employers do not have to pay employees any notice period.   I note the Respondent paid the Complainant 6 weeks and offered to pay for six sessions of counselling for him. 

I note the Respondent at hearing submitted he had great time for the Complainant and that he had always got on well with him and had always tried to help him.  I am of the view the payment in such circumstances does not undermine the finding of gross misconduct as the basis of the dismissal. 

Gross Misconduct

The Labour Court in DHL Express (Ireland) Ltd. v.  Michael Coughlan [UDD1738] held that established jurisprudence in relation to dismissal law in this jurisdiction takes a very restricted view of what constitutes gross misconduct justifying summary dismissal.  This is evidenced, for example, by the determination of the Employment Appeals Tribunal in Lennon v. Bredin M160/1978 (reproduced at page 315 of Madden and Kerr Unfair Dismissal Cases and Commentary (IBEC,1996)) wherein the Tribunal states:

“Section 8 of the Minimum Notice and Terms of Employment Act 1973 saves an employer from liability for minimum notice where the dismissal is for misconduct. We have always held that this exemption applies only to cases of very bad behaviour of such a kind that no reasonable employer could be expected to tolerate the continuance of the relationship for a minute longer; we believe the legislature had in mind such things as violent assault or larceny or behaviour in the same sort of serious category. If the legislature had intended to exempt an employer from giving notice in such cases where the behaviour fell short of being able to fairly be called by the dirty word ‘misconduct’ we have always felt that they would have said so by adding such words (after the word misconduct) as negligence, slovenly workmanship, bad timekeeping, etc. They did not do so.”

I am satisfied and it is not in dispute between the parties that an altercation occurred in the workplace on 20 December 2023.    I have carefully considered all the evidence adduced and taking all the circumstances into account I find, as a matter of probability, the Complainant’s actions on the day and his behaviour on the day to be aggressive, uncontrolled and unacceptable. 

I find on the balance of probabilities that the Respondent’s version of events as they evolved supported on the day by the witness statements to be more convincing than that of the Complainant. 

I am of the view that, in all of the circumstances of this complaint, the altercation that occurred on 20 December 2024 was “very bad behaviour of such a kind that no reasonable employer could be expected to tolerate the continuance of the relationship for a minute longer.”  

I am satisfied that there were substantial grounds justifying the dismissal of the Complainant and that the dismissal was within the range of responses which could reasonably be expected of a reasonable employer.

I accept that dismissing someone in those circumstances falls squarely within the “band of reasonableness” of responses available to an Employer faced with this situation.  It is notable that the Respondent spoke highly of the Complainant and that he had as he said at hearing “lots of time for him”.  However, I am of the view a line had been crossed by the Complainant in the workplace on 20 December 2023.    

Therefore, I deem the decision to dismiss as rational and proportionate and falling within the spectrum of reasonable actions expected from an employer, consistent with the guidance from the High Court in Governor and Company of the Bank of Ireland v James Reilly.  Consequently, I find no unfairness in the dismissal of the Complainant.

Against the foregoing backdrop and having carefully considered all the sworn evidence, submissions, documentation and case law cited, I find that the Respondent has discharged the burden of proving that the dismissal of the Complainant was not unfair.  It is my view that the respondent’s conclusion that the Complainant’s behaviour amounted to gross misconduct was that of a reasonable employer.

CA-00064982-001

For the reasons set out above I find that the decision of the Respondent to dismiss the Complainant in this case was reasonable and proportionate and I also find that the process was fair. 

Accordingly, I have decided that the complaint under the Unfair Dismissals Act is not well-founded. 

Unfair dismissal; gross misconduct;