Complainant

Respondent

Parties

Michael  Walsh

Galway County Council

Representatives

Marie O'Connor SIPTU

Owen Keany BL instructed by Rhona Murphy Byrne Wallace LLP

Act

Complaint Reference No.

Date of Receipt

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

CA-00062034-001

06/03/2024

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

CA-00062034-002

06/03/2024

The Complainant commenced his employment with the Respondent on 1 December 2013. His employment was terminated on 8 February 2024.

On 6 March 2024, the Complainant referred his claims to the Director General of the WRC pursuant to the Unfair Dismissals Act, 1977 as amended alleging that he was unfairly dismissed, and pursuant to the Minimum Notice & Terms of Employment Act, 1973 alleging that he did not receive payment in lieu of his statutory minimum period of notice.

The Respondent rejects the claims.

Mr Keany BL, on behalf of the Respondent, submits as follows.

The Complainant’s employment was terminated by the Respondent on 8 February 2024 on the grounds of gross misconduct; namely, by reason of “Theft, fraud and deliberate falsification of records”, “Misuse of the Council’sproperty or name” and “Bringing the Council into disrepute”.

The decision to dismiss the Complainant followed full, fair and comprehensive internal processes (investigation, disciplinary hearing and appeal) conducted in accordance with the Respondent’s disciplinary policy. In respect of a substantial proportion of those allegations, the Complainant has admitted his wrongdoing.

The Complainant, through his own admitted actions, acted in flagrant breach of his obligations to the Respondent and damaged beyond repair the mutual obligation of trust and confidence, which is a fundamental feature and condition of any employment relationship. The Complainant’s contention that he was unfairly dismissed is without foundation and his claim to have an entitlement, in the context of this complaint, to be reinstated to the Respondent’s employment demonstrates a lack of insight into the seriousness and true impact of the actions which ultimately led to his dismissal.

RELEVANT FACTUAL BACKGROUND

The Complainant began employment with the Respondent on or around 1 January 2013. On or around 22 May 2021, the Complainant began working as Acting General Services Supervisor. His position was made permanent on or around 6 December 2021. This position was one of responsibility, which required the Complainant to manage and supervise approximately 6 other employees.

For the reasons outlined in these submissions, the Complainant’s employment was terminated on 8 February 2024.

As part of his role as Supervisor, the Complainant had access to a fuel card and Low Value Purchase (“LVP”) card. The fuel card was provided as a facility to allow the Complainant to purchase fuel for his work vehicle. The LVP card was provided to the Complainant, as a supervisor, for the purpose of enabling him, where required, to make purchases required in connection with his role as General Services Supervisor. In the case of both facilities a clear set of rules applied in relation to their use. Personal use of both the fuel card and LVP card is not permitted in any circumstances.

Issues first arose in relation to the Complainant’s use of the Respondent’s fuel card and LVP card in or around December 2021/2022. Those issues came to light as a result of queries raised by administrative staff in the Clifden Area Office with the Complainant and a named supplier of the Respondent, (Supplier A), in January and February 2023 regarding the purchase of fuel for hired in vehicles. The queries related to the purchase of fuel on 1 December 2022 in the sum of €162.89 on the Complainant’s LVPC. This was raised with the Complainant by the Acting Senior Executive Engineer (“A/SEE”) because fuel should be charged to fuel cards and not LVP cards. The Complainant’s explanation at the time was that there was heavy frost and that two different crews used the same 7.5Tn pickup for gritting roads and he had to fill the pickup as an emergency. The Acting Senior Executive Engineer confirmed that he accepted this explanation.

Queries also related to two receipts submitted by the Complainant to the Area Office for fuel purchased using his LVPC, one on 14 December 2022, the other on 30 December 2022. The explanation given for these purchases was that they were necessary to re-fuel two hired in vehicles, a wheel excavator (or rubber duck in colloquial terms) and a road sweeper. The two receipts had a combined value of €283.91. Normally the responsibility for fuelling machinery on hire rests with the supplier.

On 8 February 2023 the Clifden Area Office, who were in the process of closing off outstanding invoices for 2022, contacted Supplier A to check if the road sweeper was on hire on 14 December. Supplier A advised that it had no record of the road sweeper being on hire to the Respondent on that day. It is understood that the company subsequently contacted the Complainant, presumably to query the matters raised with it by the Clifden Area Office.

On 16 February 2023, the Complainant contacted the Acting Senior Executive Engineer by text requesting to meet. During this interaction, the Complainant admitted to the Acting Senior Executive Engineer that he had used his LVP card for personal use in respect of the suspicious transactions previously identified to him, with said purchases amounting to in or around €446.80. The Complainant was asked by the Acting Senior Executive Engineer if this constituted the entirety of the improper purchases, the Complainant insisted there were none further.

Upon further investigation into the Complainant’s LVP card and fuel card spending history, additional suspicious transactions were identified. The Respondent had concerns at what appears to be the Complainant’s actions in using the Respondent’s funds to fill drums with road diesel for personal use, claiming they were for the purpose of fuelling a van hired by the Respondent for the use of the Complainant in the course of his employment. The quantity of fuel purchased exceeded the fuel capacity of that vehicle.

On 22 February 2023, the Acting Senior Executive Engineer met with the Complainant who handed over his fuel card and LVP card. The Complainant’s fuel card was retained by the Respondent for the duration of the investigation and the disciplinary process.

On 23 February 2023, the Complainant admitted to these further instances of improper use of the Respondent’s funds. The Acting Senior Executive Engineer also had concerns that the Complainant had made unauthorised purchases of fuel on other occasions in the past, although the Complainant did not admit to purchasing fuel improperly on those occasions.

Arising from those disclosures, the Acting Senior Executive Engineer compiled a report on 24 February 2023 in which he set out the detail of the matters discussed and admitted to by the Complainant.

The Investigation

A formal internal investigation commenced on foot of this report, the Complainant’s admissions, and further investigations made into the Complainant’s spending.

On 7 March 2023, the Complainant was notified of the disciplinary investigation commencing into the Complainant’s actions arising from allegations that the Complainant had inappropriately and without authorisation used the Respondent’s LVP and fuel card for the purpose of acquiring goods and services which were not used in the course of nor for the purposes of the Complainant’s employment with the Respondent, and in no way benefitted the Respondent. The Complainant was expressly informed that such actions, if they occurred, could amount to gross misconduct.

The issues falling to be considered in the investigation were separated into three strands:

(i) The Complainant’s purchase of fuel for personal use on 1/12/22, 14/12/22 and 30/12/22.

(ii) The Complainant’s misuse of funds in attributing purchases to fuelling the van on hire where the fuel purchased exceeded the capacity of the van’s fuel tank.

(iii) An examination of eight other fuel purchases by the Respondent over a fixed period of 17/12/21 to 31/1/23.

The investigation was conducted by Mr Kevin Reilly, former Senior Executive Officer of Cavan County Council. The Complainant was provided with the Respondent’s Grievance and Disciplinary Procedure and the Employee Assistance Service.

Mr Reilly carried out a full and detailed investigation process, during which he interviewed relevant witnesses. Throughout this process, the Complainant was provided with copies of all relevant evidence and documentation and provided an opportunity to respond to and challenge the evidence against him.

At the meetings with the Complainant, which took place on 3 May 2023 and 7 June 2023, the Complainant did not deny the wrongdoing. Rather, he outlined various personal circumstances, including having to maintain his family farm and travel long distances by reason of his personal commitments. When asked to give an indication of when the improper use of fuel and LVP card first started, he was unable to give an indication of this. When asked to quantify the overall value of improper purchases made on these cards, he was unable to do so.

During that process, the Complainant informed Mr Reilly of a number of medical concerns which he had been dealing with, including that he was suffering from panic attacks as a result of ongoing illness arising from a Covid-19 infection in June 2022 and that he was also under stress as he was responsible for running his father’s farm.

During the course of the interview with the Complainant on 3 May 2023, the Complainant confessed to the accusations as outlined in strands one and two but claimed there were no further instances of misconduct which remained yet uncovered, arising from strand three.

The Complainant was interviewed for a second time on 7 June 2023. The Complainant once again confessed to having acted improperly. He further explained the details of the unauthorised transactions during this interview between 17 December 2021 and 31 January 2023, claiming none were unauthorised or improper. Some of his explanations were accepted while others were not.

A written investigation report was issued on 3 July 2023. The investigation report found as a matter of fact that the Complainant had used the Respondent’s funds for personal use without authorisation on each occasion as outlined in strands one and two. Those instances were each admitted by the Complainant.

It was also found that a number of further unauthorised purchases were made between 17 December 2021 and 31 January 2023, arising from the third strand of the investigation. On foot of the third strand of the investigation, a further four occasions of improper charges to the Respondent were made.

Following further clarification, it was determined by the investigator that there were three instances of unauthorised use by the Complainant under the third strand.

The investigator investigated whether funds had also been misused for non-fuel related purchases but made no finding of wrongdoing in that regard. The attempted justification given by the Complainant for the inappropriate purchases was that he was dealing with financial difficulty and stress at home.

The Conclusion and Findings in the report state as follows:

“Prior to the investigation commencing it had already been established that there was inappropriate/ unauthorised use of the Councils low value purchase cards and fuel card by the [Complainant]. The purpose of the investigation was to establish the facts surrounding the allegations of misuse.

1. Misuse of the Councils low value purchase card and fuel card by the [Complainant] came to light as a result of the diligence of administrative staff in the Clifden area office who probed inaccurate information provided by the [Complainant].

2. The investigation identified clear breaches of Galway County Council's policy and procedure, terms & conditions, by the [Complainant] relating to the use of fuel card and low value purchase cards.

3. The most serious breach relates to purchases of fuel made by the [Complainant] using two low value purchase cards and a fuel card on a number of dates that were not required for work related activity. The [Complainant] has admitted to inappropriate/unauthorised use on twelve occasions. The approximate monetary value of these transactions is €1,217.

4. During the course of the investigation additional transactions of concern over and above those disclosed by the [Complainant] prior to the investigation were identified. These have been analysed on a case by case basis earlier in the report. The Investigator found that on the balance of probability inappropriate use of low value purchase cards and fuel card occurred on a further five occasions between 17 December 2021 and 31 January 2023. The monetary value of these transactions is €652.25.

5. The investigation found that a purchase of road diesel by the [Complainant] on 29th June 2022 in the sum of €84.89 was not for work related activity but was charged to Galway County Council's account in error.

6. The [Complainant] breached terms and conditions governing use low value purchase cards in so far as the purchase of fuel is prohibited save in exceptional circumstances. In mitigation there was a historical arrangement in place relating to the purchase of fuel at [named Supplier B] service station and many of the purchases were made in advance of the [Complainant] being issued with a fuel card. However the investigation found that the [Complainant] continued to buy fuel using an LVPC after he had been issued with a fuel card. The historical arrangement is elaborated on at paragraph 8 below.

7. Odometer readings were recorded by the [Complainant] in an ad hoc manner resulting in a discrepancy of 1342km between the final odometer reading recorded on sales receipt on 31 January 2023 and the vouched reading from the hire company, [named], when the van was returned on 1" February 2023.

8. The investigation found that there was a historical arrangement in place whereby all purchases from [Supplier B], fuel & non fuel, were paid for using a low value purchase card issued to [named]. This practice was at variance with LVPC policy & procedure. Furthermore [Supplier B]'s service station was not authorised to accept fuel cards. No fuel should have been purchased at this location. Sales receipts were processed for payment with a paucity of detail relative to what might have been expected to comply with policy & procedure. Sales receipts for fuel did not show quantities, price per litre, vehicle registration no's etc. Some were processed without any signature.

The Investigator found that while strict terms and conditions are set out relating to the information to be provided on sales receipts for fuel cards, these controls are not replicated on LVPC policy, presumably because LVPC's were never intended for the purchase of fuel. There may have been good practical reasons for such an arrangement locally, however from a governance perspective it was less than satisfactory.

The investigator found that there were systemic breaches of the terms and conditions of use set out in Purchase Card Policy & Procedure 2021 specifically conditions, 1, 2, 3, 4, 10 & 12 of that policy.

[Name], acting Senior Executive Engineer, has advised that the practice of purchasing fuel at this service station has now been discontinued.”

On 29 May 2023, and arising from the medical concerns which had been raised by the Complainant during the course of the above process, the Complainant attended for a medical assessment, at the request of the Respondent. The Complainant had disclosed to the doctor that he had been suffering from extreme stress since the previous summer. Dr O’Flynn determined however, that the Complainant was fully fit for work and fully fit to engage with HR and management on an on-going basis.

The Disciplinary Hearing and Outcome

A copy of the written investigation report was provided to the Complainant on 19 July 2023. In the covering letter enclosing the investigation report, the Complainant was informed that he was required to attend a disciplinary hearing on 17 August 2023 where he would be given an opportunity to respond before a decision would be made on what action was appropriate.

This hearing was later rescheduled to 22 August 2023. By way of email dated 26 July 2023, the Complainant agreed to attend.

On 22 August 2023, a disciplinary hearing was conducted by the Respondent’s Director of Services, Mr Liam Hanrahan. During the course of the hearing, the Complainant’s SIPTU representative, Ms O’Connor, was critical of some aspects of the investigation report such as the rigidity of the procedures, which the Complainant had allegedly breached. Ms O’Connor argued that the reality of working in rural areas was that not all procedures could be followed to the letter. Certain findings in relation to the third strand of the written report were disputed as having come to the wrong conclusion based on the evidence before the investigator.

Ms O’Connor also placed emphasis on the home life of the Complainant, including his father’s poor health. It was also restated how remorseful the Complainant was for having acted inappropriately. Ms O’Connor attributed the unauthorised purchases of fuel to the Complainant’s inability to pay for the fuel required to operate the vehicles on his father’s farm.

During the course of the hearing, no attempt was made to dispute the findings (and admissions) made under the first two strands of wrongdoing. Each of the findings of fact against the Complainant relating to the third strand of the investigation were disputed. The Complainant cited one of the reasons for large quantities of fuel being purchased as arising from circumstances including fuel being more expensive in rural areas.

Ms O’Connor claimed that some leniency should be applied by reason of the Complainant’s personal difficulties and having regard to his length of service with the Respondent. The Complainant expressed a desire to continue working for the Respondent.

One issue which was raised during this hearing on behalf of the Complainant related to point 2 on page 16 of Mr Reilly’s investigation report and concerned the question of whether or not a teleporter had been on hire by the Respondent after 1 July 2022. In his investigation report, Mr Reilly noted that “the Area Office have no record of the teleporter being on hire post 1st July”.

It was agreed at the investigation hearing that Mr Hanrahan would carry out further inquiries with the Acting Senior Executive Engineer on this issue. Following those inquiries, it was confirmed to Mr Hanrahan that a teleporter had been on hire post 1 July 2022. It was confirmed to the Complainant by Mr Hanrahan in correspondence that as a result of this clarification, he would not be drawing any conclusions from or making any reference to point 2 on page 16 of Mr Reilly’s investigation report in his final conclusions to the disciplinary proceedings.

On 5 September 2023, the Complainant was provided with a copy of the memorandum of the meeting of 22 August 2023. It was returned, signed to the Respondent on 8 September 2023.

On 25 October 2023, the Complainant was provided with the written outcome of the disciplinary process. The letter summarised the investigation, noting that the Complainant admitted to the allegations provided for in strands one and two. Three purchases in relation to strand three of the investigation report were also found to be unauthorised.

On foot of the findings of the report, the total sum used inappropriately by the Complainant in relation to strands one and two was estimated at €1,216.64. This was held to constitute gross misconduct. The total sum in relation to strand three was €395.25. This was similarly held to amount to gross misconduct.

In his decision, after setting out the details of each of the instances of unlawful and improper conduct, Mr Hanrahan stated as follows:

“Accordingly, I have determined that under section 7 of this policy, the acts carried out by you under all three categories constitutes gross misconduct including:

·        Theft, fraud, and deliberate falsification of records

·        Misuse of Galway County Council's property or name

·        Bringing Galway County Council into disrepute

As you will be aware, employees of local authorities are required to carry out their duties for the benefit of the public, if they misconduct themselves in the course of those duties, including by way of theft or fraud as is the case here, this results in a serious breach or abuse of the public's trust.

Your actions constituted gross misconduct and there was, on your part, a deliberate action to engage in activities with serious consequences for the Council I am satisfied that you had full awareness that the activities that you engaged in were contrary to the policies and ethics of the Council. I am also satisfied that you had full awareness of the likely consequences of the actions that you engaged in.

In considering the sanction to apply to the findings, you were given an opportunity at the disciplinary meeting to make representations in respect of the findings as listed above, including putting forward any matters, which you wished to rely on in mitigation of the above findings. I have taken your response into consideration in reaching my decision. I have also considered your previous work record with the Council and the contribution that you have made to the work of the Council.

However, I must consider that by way of your actions, you have exposed the Council to financial loss and a risk of reputational damage, and in the course of same, irrevocably damaged the trust and confidence which is the cornerstone of the employment relationship. Accordingly, I confirm that I am recommending to Mr. Liam Conneally, Chief Executive, the termination of your employment with Galway County Council.”

The recommendation of the Director of Services was the termination of the Complainant’s contract of employment with the Respondent.

The Appeal

On 27 October 2023, the Complainant appealed the decision of the disciplinary hearing which ultimately resulted in his dismissal for gross misconduct. The stated grounds for that appeal were articulated by Ms O’Connor in her email to Mr Conneally dated 27 October 2023, as being “breach of procedures”, “mitigating circumstances” and “severity of sanction”.

The Disciplinary Appeal took place on 12 December 2023. This meeting was conducted by Mr Liam Conneally, Chief Executive of Galway County Council. Mr Conneally informed those present at the hearing that he had not taken a decision in relation to Mr Hanrahan’s recommendation that the Complainant be dismissed.

During the appeal, the Complainant through his SIPTU representative, Ms O’Connor, pointed out that the Respondent had also breached procedure in not suspending the Complainant during the investigation process.

It was further argued that Mr Hanrahan failed to address all mitigation in making his decision such as failing to address the medical certificates provided by the Complainant and in not speaking to the Acting Senior Executive Engineer about the Complainant’s good conduct following the commencement of the investigation.

The Complainant admitted wrongdoing and spent a significant portion of the hearing outlining his history of illness and the difficulties he had overcome. He outlined his financial difficulties, which caused him to make the unauthorised purchases of fuel.

The Complainant made numerous assertions to the effect that he was intrinsic to the operation of the Municipal District so much so that it could not operate without him. This included stating that his personal property was regularly used for storage of the Respondent’s machinery, that deliveries intended for the Council were regularly made directly to his premises and that he had on occasion taken on the role of the Acting Senior Executive Engineer when the Acting Senior Executive Engineer was unable to attend to certain work-related matters himself.

Finally, it was argued that the sanction imposed on the Complainant was excessive and was not justified having regard to all facts before the hearing committee. The meeting concluded. A copy of the memorandum of the meeting of 12 December 2023 was signed by the Complainant on 22 January 2024.

On 19 December 2023, Mr Conneally interviewed the Acting Senior Executive Engineer. During this meeting, the Acting Senior Executive Engineer was once more asked about how he had discovered the misconduct of the Complainant. He was also asked about the extent to which the operation of the Municipal District relied on the Complainant.

On 30 January 2024, a meeting was held between Mr Hanrahan and Mr Conneally. The initial disciplinary hearing was discussed. Mr Hanrahan explained that the reasoning for his recommendation of termination arose from the fact that the misuse of Respondent funds by the Complainant was not a once-off mistake, but rather a series of repeated infractions. Another major factor leading to Mr Hanrahan’s recommendation was that the Complainant was working in a position of trust and authority and had clearly broken that trust, regardless of his reasons for doing so. In light of this, the mitigation put forward by the Complainant did not sway his decision.

On 8 February 2024, the Complainant was informed by Mr Conneally that the initial decision to terminate his employment with the Respondent was to be upheld. The written decision addressed the issues raised by the Complainant, namely the breach of procedures on the part of the Respondent, the mitigating factors offered by the Complainant and the severity of the sanction. None of the issues raised by the Complainant and his SIPTU representative were enough to counterbalance the initial decision to dismiss the Complainant.

APPLICABLE LAW UNDER UNFAIR DISMISSALS ACTS

It is submitted that the termination of the Complainant’s employment was not unfair. The Respondent relies on section 6(4) of the Unfair Dismissals Acts 1977 to 2015 (the Unfair Dismissals Act”) as follows:

“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) …

(b) the conduct of the employee”

Section 6(7) of the Unfair Dismissals Act provides that:

“In determining if a dismissal is an unfair dismissal, regard may be had, if the rights commissioner, the Tribunal or the Circuit 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."

Band of Reasonable Response

Case law makes clear that in defending an unfair dismissal claim, an employer does not need to convince the Adjudication Officer that they would have made the same decision to dismiss or indeed that every employer would have done so. What must be shown is that it was reasonable for the employer to have made the decision that it did. In this regard, provided the Adjudication Officer accepts that it was within the band of reasonableness for the Respondent to have dismissed the Complainant, his dismissal was not unfair.

This was made clear in the decision of the Circuit Court in Allied Irish Banksplc v Purcell [2012] 23 ELR 189 in which Linnane J stated as follows:

“The correct test is: Was it reasonable for the employer to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view, another quite reasonably take a different view.”

[quoting Lord Denning MR in the UK Court of Appeal case of British Leyland UK Ltd v Swift [1981] IRLR 91]

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

This extract from the judgment in Purcell was cited with approval by the High Court in The Governor and Company of the Bank of Ireland v JamesReilly [2015] IEHC 241.

It is submitted that the Respondent has acted reasonably in accordance with its applicable procedures and, in imposing the sanction of dismissal, within the band of reasonableness.

The Respondent is required only to demonstrate that the decision it took was within the band of reasonable responses. The Respondent submits that its decision in this instance clearly falls within such band. The Respondent acted reasonably in deciding to dismiss the Complainant based on the circumstances.

Insofar as any suggestion may be made that the processes followed by the Respondent were in some way deficient (and it is submitted that there would be no reasonable basis for finding so in this case) the Respondent relies on Loftus and Healy v An Bord Telecom [1987] WJSC-HC933, where it was held that it was not a question of whether the ex-employees were deprived of procedures to which they were entitled, but:

“…whether the denial to them of such procedures is such that the defendant must be deemed to have failed to establish… [the basis of its dismissal] as the whole or the main reason for justifying their dismissal”

In Berber v Dunnes Stores [2009] IESC 10 Finnegan J states

“There is implied in a contract of employment a mutual obligation that the employer and the employee will not without reasonable and proper cause conduct themselves in a manner likely to destroy or seriously damage the relationship of confidence and trust between them.”

It is submitted that the obligation of trust and confidence has been breached by the Complainant by behaving in a manner that had the effect of destroying the trust and confidence that the Respondent once had in him.

Fair Procedures

The Complainant was party to a detailed independent investigation, disciplinary and appeal process. At all times the Complainant had the right to be represented by his trade union. Fully independent managers considered this matter carefully and all of the submissions put forward by the Complainant were considered. The processes afforded to the Complainant were fair and considered.

If the Adjudication Officer is minded to consider that the Respondent’s process contained procedural failings (which it is contended there is no possible basis for finding in this case), it is submitted that any such failings were not so significant as to render the Complainant’s dismissal unfair. It is well established that the requirement is for fair procedures, not perfect procedures: as noted by the WRC in A Senior Men’s Clothing Salesman v A Clothes Retailer ADJ-00016258:

“The principles of natural justice must be applied by the respondent in the policies and procedures it applies to the complainant's employment and dismissal. This requires that fair procedures are applied, not perfect procedures. As stated in (sic) Barrett J. in Boyle –v- An Post [2015] IEHC 589 “fairness is ever required, perfection is unattainable”. In this case it seems to me that although the procedures used were not perfect, they did adhere to the principles of natural justice as outlined above and thus were fair. In summary I find that there were substantial grounds to justify the dismissal, the sanction of dismissal was proportionate, and the procedures used in the disciplinary process were fair”.

It is submitted that if the Adjudication Officer identifies any flaws in the procedures applied by the Respondent, which the Respondent denies is the case, any such alleged procedural flaws were not of a degree that should render the dismissal unfair. In support of its position, the Respondent relies on the decision of the Employment Appeals Tribunal in Burke v Egan t/a LittleSunflowers Creche & Montessori UD902/2012. This claim related to a dismissal on the grounds of gross misconduct where the Tribunal had been critical of the failure of the director running the disciplinary hearing not inviting the claimant or her representative to make submissions in relation to the dismissal. However, it concluded that “the dismissal was fair and while the respondent’s procedureswere flawed, they were not so flawed to render the dismissal unfair”.

Without prejudice to the Respondent’s firm contention that a finding of unfair dismissal could not be warranted in this case, it is submitted that, even in the event of any such finding being made, it must logically follow that the conduct of the Complainant contributed entirely or, at least, very significantly to the decision to dismiss. The Complainant’s actions, including those to which he has admitted, are of the most serious kind.

Whilst it is submitted that there is not reasonable basis, legal or factual, upon which a finding of unfair dismissal may be reached in this case, it is submitted (without prejudice to that firm position) that this is a case in which it would be wholly inappropriate to require the Respondent to re-instate or re-engage the Complainant to his role, or any role for that matter, within the Respondent organisation. Through his admitted actions, the Complainant has irreparably damaged the relationship of trust and confidence which underpins all employment relationships and to force a resumption of that employment relationship would, in the circumstances, be wholly unjust and unreasonable.

CONCLUSION

It is submitted that the Respondent’s decision to dismiss the Complainant from employment was a reasonable response in all of the circumstances.

SUPPLEMENTAL SUBMISSION of 10 January 2025

THE REMEDY OF REINSTATMENT

The Respondent relies on the Supreme Court judgment in An Bord Banistiochta, Gaelscoil Moshiológ v the Labour Court [2024] IESC 38.  In his judgement, O'Donnell C.J. determined that the WRC, Labour Court had High Court had each been incorrect in law in ordering the remedy of reengagement, emphasising that reinstatement and re-engagement are remedies that are "exceptional in nature" — a factor which was not given proper consideration by the WRC, Labour Court had High Court. O'Donnell C.J. stated that the decisions to re-engage the principal "focussed solely on the interests of the Principal" in that case and failed to consider other factors that the Supreme Court deemed ought to have been considered, including, inter alia, the fraught relations between the parties and the period of time that had elapsed since the dismissal.

In his judgment O'Donnell C.J. stated as follows:

“At the risk of stating the obvious, the grant of an exceptional remedy requires a clear and balanced explanation detailing precisely why a relief which is out of the ordinary is being granted in a particular case. This would be so in any case but was particularly required here because of... the employer’s asserted lack of trust in an employee whom they have unfairly dismissed…”

The judgment confirmed the longstanding principle that an employer ought not be required to reinstate or reengage an employee other than in exceptional cases. Crucially, neither such remedy ought to be entertained in cases where there is evidence of a breakdown in the relationship or where the fundamental requirement of trust and confidence has been damaged.

The Respondent also relied on Mpstor Limited v Oppermann UDD2133 where the Labour Court noted in its determination that "In terms of an unfair dismissal as defined by the Act, it is hard to envisage a dismissal that could be more unfair". Noting that the Complainant in that case vigorously pursued the remedy of reinstatement, the Labour Court determined that, notwithstanding the manifestly unfair nature of the dismissal, it would be inappropriate to direct either reinstatement or reengagement in that case. In reaching that conclusion, the Labour Court noted (among other factors) that "It was clear to the Court from the evidence of the Complainant and the Respondent's witness that there were tensions between the parties that would lead the Court to conclude that mutual trust may no longer exist"

In Gibney v Riverside Manufacturing Company UD732/87 the EAT determined that the claimant was unfairly dismissed but found that the claimant had "contributed heavily to his own misfortune", primarily because of his failure to inform his employer of the third-party business proposal and his failure to provide candid answer during the employer's investigation process. The EAT measured the employee's contribution at 50%. Ruling out the issue of re-instatement, the EAT decided to award compensation rather than reinstatement on the basis that it was "quite clear that in view of the senior position which [the claimant] held and the confrontation which has taken place between himself and his former employers, his return to work would be impracticable"

In Sheehan v Continental Administrator Company Limited UD 585/1999, the EAT noted that there had been a deterioration in the relationship between the claimant and a senior member of the company's management. The EAT held that the dismissal was unfair, having been effected in the absence of any fair procedures. In this case the EAT formed the view that compensation was the most appropriate remedy and that neither reinstatement or reengagement would be appropriate, stating as follows:-

"Both these remedies cannot be considered, if, firstly, there exists a very definite possibility that it will result in compelling a reluctant employer to continue a relationship of employer/employee a relationship which is founded on mutual trust and understanding and secondly, the performance of the returning employee may require consistent supervision to ensure adequate performance of duties. If the tribunal attaches sufficient importance to the workplace on the one hand and the actual position of the employee on the other hand and is conscious of the sensitivities that exist it will be deterred to award relief which has a potential of creating future friction, disharmony and possibly an acrimonious relationship which could spill over into other areas and cause a disruptive work environment resulting in a decrease in productivity or performance. The more senior the position in the company the greater the care necessitated by the tribunal in assessing the appropriate remedy".

Having regard to the above authorities, it is submitted that the following principles apply when considering the remedy of reinstatement and reengagement:

·        They are remedies which are "exceptional in nature” (Gaelscoil Moshiológ).

·        They ought not be directed where they would have the effect of "compelling a reluctant employer to continue a relationship of employer/employee" (Sheehan), where they carry the "potential of creating future friction, disharmony and possibly an acrimonious relationship" (Sheehan) or where the return to work would be "impracticable" (Gibney).

·        Fundamentally, they ought not be directed where there has been a breakdown (or evidence of a breakdown) of the relationship of trust and confidence between the employer and the employee (Gaelscoil Moshiológ).

The Respondent repeats its firm position that the decision to dismiss the Complainant in this claim was both fair and proportionate. It is submitted that there could be no basis for finding that the dismissal was unfair, either procedurally or substantively. Nevertheless, it is submitted that in the event of a finding of unfair dismissal in this claim, there could be no possible justification for directing reinstatement or reengagement, having regard to the facts (including the undisputed facts) giving rise to the Complainant's dismissal. Having been confronted in relation to transactions of concern (relating to the use of his fuel card) the Complainant admitted repeated instances of theft and unauthorised use of his fuel and LPV card for his own personal benefit. Through his admitted actions, the Complainant has irreparably damaged the relationship of trust and confidence which underpins all employment relationships and to force a resumption of that employment relationship would, in the circumstances, be wholly unjust, unreasonable and would run contrary to the clear principles identified by the Supreme Court, Labour Court and EAT in the cases set out above.

THE DECISION NOT TO SUSPEND THE COMPLAINANT

It has been argued on behalf of the Complainant that the decision of the Respondent not to suspend him pending the outcome of the investigation, disciplinary and appeals processes "brings into question whether [his actions were] something that warranted dismissal". In support of this position, the Complainant has sought to rely on the EAT case of Duffy v McAvoy "Talk to Me" (UD 1048/2009). At the hearing on 10 October 2024, the Complainant's representative sought also to maintain that the actions of the Respondent (in not suspending the Complainant) ran contrary to the provisions of the Respondent's Disciplinary Policy which expressly envisage suspension in cases of alleged gross misconduct.

It is submitted that the Complainant's argument in that regard is misconceived in a number of key respects.

Firstly, the case relied upon by the Complainant (Duffy) bears little resemblance to the present case. As is clear from the written decision of the EAT in Duffy, the claimant had been dismissed on the basis of a finding by her employer of gross misconduct; namely, theft of a mobile telephone top-up voucher. The EAT in that case formed the view from the evidence available that the claimant was in fact innocent of the charge (i.e. that she had not stolen the voucher) and that any failure on her part arose from an oversight / inadvertence. The EAT placed reliance on the employer's decision not to suspend the claimant for a period of days — a decision which, in the view of the EAT, in the particular factual matrix of that case, undermined the employer's contention that the claimant's actions constituted gross misconduct. The facts of that case lie in stark contrast to the facts (including the admitted facts) of the immediate claim. In that case, the EAT determined that the claimant had not committed the wrong alleged. In this claim, the Complainant, having been confronted about various suspicious transactions, ultimately admitted that he repeatedly purchased fuel, using the Respondent's fuel / LVP cards, without authorisation and for his own personal benefit. There can be no ambiguity or dispute in this case regarding the seriousness of the Complainant's actions.

Secondly, insofar as it is being suggested that the Respondent was required under the terms of the Disciplinary Policy to suspend the Complainant pending determination of the disciplinary process, it is submitted that such an approach would be incompatible with the legal obligations governing suspensions, as outlined in recent decisions of the Courts. It is well established that a decision to suspend an employee, including an employee accused of gross misconduct, cannot be simply taken automatically or as a matter of course. Such a decision may only be taken where specific reasons have been considered and identified by the employer necessitating the employee's immediate exclusion from the workplace.

In O'Sullivan v Health Service Executive [2023] IESC 11, the Supreme Court considered the principles which apply to holding suspensions in this jurisdiction. The Court noted that while a holding suspension (a suspension for the purpose of an investigation) did not directly imply any wrongdoing, it nevertheless had a definite impact on the individual, possibly affecting their reputation and possibly making it more difficult for them to resume their occupation.

In The Governor and Company of Bank of Ireland v Reilly [2015] IEHC 241, Noonan J. of the High Court emphasised the serious nature of any decision to suspend an employee. In particular, he noted that the reputational damage may never be overcome, even where an accused employee is cleared of the initial allegations. It was stated that suspension would be justified in the certain circumstances including to prevent repetition of the conduct complained of; to prevent interference with evidence; to protect individuals at risk from such conduct or to protect the employer's business and reputation.

In the immediate case, once the concerns regarding the Complainant's conduct emerged, the Respondent took immediate steps to impose protective measures short of suspension, directing that the Complainant return his fuel card and LVP card. A similar restriction was imposed on the use of fuel and LVP card by members of the Complainant's team. These measures, whilst undoubtedly measures which could only be temporary in nature, were considered adequate by the Respondent for the purpose of ensuring the Complainant did not engage in similar conduct while the investigation, disciplinary and appeals processes were ongoing.

Far from constituting an unfairness on the part of the Respondent, the decision not to suspend the Complainant pending the outcome of those processes (but to put in place clear restrictions which would rule out the possibility of him making any purchases using Council funds during that period) is illustrative of the measured, fair and sensitive manner in which the Respondent has at all times treated the Complainant.

At the adjudication hearing, Mr Keany BL, on behalf of the Respondent noted that it would be hard to conceive another case where dismissal would be more appropriate. There were confessed instances of use of cards for personal use. Mr Keany stated that in the circumstances the employment relationship cannot be salvaged, and re-instatement or reengagement would be inappropriate. He added that in this case, there is an additional layer, as it relates to dealings with public funds.

Regarding the Complainant’s heath difficulties, Mr Keany noted that there has never been any causal effect put forward by the Complainant.

Regarding the suspension, Mr Keany said that protective measures were put in place immediately. The Respondent implemented measures to allow the Complainant to remain working but have no access to funds. However, from the outset, the matter was treated very seriously. Mr Keany said that the Respondent gave the Complainant the benefit of the doubt.

Mr Keany noted that it is extraordinary that the Complainant seems to contend that as he used his own jeep for work, which the Respondent has separate concerns about, he was entitled to use the Respondent’s funds to purchase fuel.

In his concluding remarks, Mr Keany said that it is hard to think of a case where termination of employment would be a more appropriate sanction. He said that since the first day of the hearing there was an additional layer to the matter which is of greater concern. He said that throughout the process and at the start of the hearing, the Complainant admitted wrongdoing, his difficulty was with the proportionality of sanction and the mitigating factors. On the last day of the hearing, there was a significant development. The Complainant, for the first time, said that he did nothing wrong, that all of the fuel was used for the Respondent’s purposes. There is nothing resembling this position in the records, he never denied wrongdoing. Mr Keany asserted that while the breach of trust was always there, now the parties find themselves in a situation that it is even more serious.

Mr Keany said that there was an extensive process with no procedural defects. The Respondent went to great lengths to give the Complainant a fair process. Regarding the suspension, Mr Keany said that there could not be a situation that someone is automatically suspended. Meaningful protective measures were put in place designed to ensure that the disciplinary process can proceed. Mr Keany relied on Tesco Ireland Limited v Linda Maguire UDD2326 in the context of dishonesty and DHL Supply Chain (Ireland) Limited v Marius Retter UDD2016 in the context of the band of reasonable response.

Summary of evidence and cross-examination of Ms Rachel Lowe, Senior Engineer

Ms Lowe stated that she has been employed by the Respondent for 19 years, with 16 of those years in the roads section, where she has held various positions of increasing responsibility. She has served as a Senior Engineer since 2019 and currently manages a team of supervisors, including the Complainant. She has extensive experience working with General Services Supervisors (GSS) and outdoor staff.

Ms Lowe explained that the GSS role is the most senior position within the outdoor operational structure. It carries significant responsibilities, including staff supervision, record-keeping, resource and equipment management, oversight of subcontractors and deliveries, implementation of the Respondent’s procedures, travel and subsistence claims, timesheet administration, and health and safety compliance. While the role is primarily outdoor one, each GSS is assigned to a depot and may occasionally visit area offices. Their work locations can vary widely.

Ms Lowe confirmed that she had never met the Complainant personally, although she was aware of his role within her team.

She clarified that fuel cards are issued to employees whose duties involve operating Respondent-owned vehicles. Low Value Purchase Cards (LVPCs) are intended for urgent, minor purchases—such as replacing broken equipment (e.g. a shovel)—and both are governed by strict policies. LVPCs must not be used to purchase fuel, and personal use of either card type is prohibited.

Ms Lowe recounted that the Acting Senior Executive Engineer contacted her to request a meeting due to the seriousness of concerns that had arisen. They met in February 2023, during which the Acting Senior Executive Engineer informed her of potential fuel theft. Recognising the seriousness of the matter, Ms Lowe requested a formal report from the Acting Senior Executive Engineer, which she subsequently forwarded to HR. Her involvement concluded at that point.

Ms Lowe emphasized that the GSS role is supervisory in nature and does not require towing. Vehicles capable of towing are available through the Respondent’s fleet or can be hired when necessary. Employees may use their personal vehicles to travel between sites and claim expenses, which the Complainant had done previously.

She expressed concerns regarding the Complainant’s use of his personal vehicle for towing, noting that such use raises health and safety and insurance implications. She was unaware of any such practice and stated that she had never encountered a GSS using their own vehicle for towing.

Ms Lowe noted that the Respondent operates several depots in Connemara, including one in the Complainant’s locality, which would have been appropriate for his use. Any concerns regarding depot suitability should have been formally raised.

She questioned the appropriateness of the Complainant storing deliveries at his personal property, stating that deliveries should be directed to depots to ensure proper tracking of equipment and materials. She did not accept that storing deliveries at a personal yard was established custom or practice.

During cross-examination, it was suggested that a historical arrangement existed whereby all purchases—including fuel—from a named supplier were made using an LVPC. Ms Lowe responded that this had not been brought to her attention previously and deemed it unacceptable.

It was further suggested that the Respondent’s policies and procedures had not been followed. Ms Lowe acknowledged that the Acting Senior Executive Engineer was investigating the matter.

When questioned about her letter dated 7 March 2023, which indicated that the matter could constitute gross misconduct but yet, the Complainant was not suspended, Ms Lowe stated that she did not wish to prejudge the outcome of the investigation. She had attached the relevant policy outlining potential consequences and maintained that it was reasonable not to suspend the Complainant at that stage.

Ms Lowe disputed the assertion that towing by GSSs was common practice and rejected the claim that the Complainant was the only employee with a licence that was required for towing.

Regarding an email from the Complainant requesting a larger vehicle, Ms Lowe stated that he initially chose to use his own vehicle and claim expenses, later opting for a hire vehicle. She clarified that GSSs are typically assigned small vans and do not have discretion over vehicle selection.

In response to claims that the depots were unsuitable, Ms Lowe reiterated that any such concerns should have been formally raised. She maintained that using one’s personal residence or yard for work-related deliveries was not acceptable. It was put to Ms Lowe that the Complainant’s yard was perceived to be a depot, it was historical arrangements for some 20 years since his father’s employment with the Respondent.  Ms Lowe said that depots are there for a reason, it was the Complainant’s responsibility to manage them properly.  She said that any concerns the Complainant might have with depots are not mitigating factors regarding theft. Ms O’Connor put it to Ms Lowe that the lines were blurred, the Respondent had policies and procedures but the reality on the ground was different.

When it was suggested that the Complainant facilitated deliveries to his home, Ms Lowe reaffirmed that it is the responsibility of a GSS to arrange deliveries to an appropriate depot. Ms Lowe said that it was the Complainant’s responsibility to follow procedures and policies and use depots.

Summary of direct evidence and cross-examination of Mr Kevin Reilly, Investigator

Mr Reilly outlined his 30 years career, 25 of which were in local government and 9 years prior to his retirement in the governance area. Mr Reilly described his experience in conducting investigations.

Mr Reilly said that in February 2023 he received a phone call from the Respondent inquiring if he would be available to conduct an investigation. He received formal instructions on 14 March 2023. At the outset, the Terms of Reference, the Disciplinary Policy and the Acting Senior Executive Engineer’s report were provided.

Mr Reilly said that he set up a meeting with the Acting Senior Executive Engineer. He also sent a letter on 5 April 2023 to the Acting Senior Executive Engineer asking for information that could assist him. He then met with the Complainant on 3 May 2023. Interview notes were furnished to the Complainant and agreed. Mr Reilly had another meeting with the Acting Senior Executive Engineer and then with the Complainant.

Mr Reilly said that there were three streams of transactions. Streams 1 and 2 were not denied, the Complainant was very apologetic and offered a repayment. He referred to his own health as a mitigating factor. The Complainant said that his father’s illness put him under pressure, he was working and running the farm. The Complainant made references to financial pressures.

Mr Reilly said that the Complainant had no recollection when he used the card for personal use for the first time.

Mr Reilly said that during the second interview with the Complainant he provided him with a spreadsheet of all transactions.

Mr Reilly said that he could empathise with the Complainant but it was a serious breach of trust for someone in a position of responsibility.

In cross-examination, Mr Reilly was asked about the Complainant’s demeanour during the interviews. He said that the Complainant was nervous, under stress, Mr Reilly was made aware that the Complainant had issues with his blood pressure. After the meeting, Mr Reilly informed the Complainant’s SIPTU representative that he would contact the Respondent to arrange a medical review of the Complainant.

It was put to Mr Reilly that he went beyond what was in the Acting Senior Executive Engineer’s report and that Strand 3 should not have been included in the report.

Mr Reilly confirmed that the Complainant told him that he would have used his own jeep for personal and work-related use. He also confirmed that when the Complainant told him about the storage of equipment, he told him it was not advisable. He also said that the Complainant made a point that at that time of the year, he was under financial pressure but not that it was very serious.  Mr Reilly said that the Complainant was remorseful and helpful. He said that he met with the Acting Senior Executive Engineer and then sent a letter to him requesting further information.

Summary of direct evidence and cross-examination of Mr Liam Hanrahan, Director of Services

Mr Hanrahan said that he was requested by HR to review the Investigator’s report which was conducted by Mr Reilly, to meet with the Complainant and seek his views, to consider the matter, and to issue a recommendation.

Mr Hanrahan said that he wrote to the Complainant on 19 July 2023 enclosing a copy of the report and inviting him to a meeting. They met on 22 August 2023. There was an agreement that inappropriate use of the cards took place on a number of occasions. The Complainant went through a number of transaction but was unable to clarify a number of instances. The Complainant did not accept five instances and he had some queries he asked to follow up on. Mr Hanrahan recorded his comments. There were 12 instances established of inappropriate use of the cards.

The Complainant spoke about the difficulties related to running the farm, his father’s illness, and taking on too much.

Mr Hanrahan said that the issue of the teleporter was raised and he agreed that he would seek the Acting Senior Executive Engineer’s comments. The Acting Senior Executive Engineer confirmed that the teleporter was on hire and Mr Hanrahan decided that he would not draw any conclusions regarding this point.  He disregarded this allegation.

Mr Hanrahan said that he concluded that the actions of the Complainant constituted gross misconduct, they were deliberate actions and a serious breach of policies and of trust. The only recommendation he could make was one to terminate the Complainant’s employment.  He also looked at the mitigating factors and lesser sanctions such as removal of the cards, transfer to another section or demotion.  Mr Hanrahan said that the Complainant was the most senior outdoor staff member. It would be impossible not to have financial responsibility, making payments or having the cards. He was unable to support that.  In the context of demotion, he said that it would be impossible to retain someone where there were clear instances of theft and bringing the organisation into disrepute. He said that it would be impossible to manage someone who breached the trust in that manner and to build trust again.

In cross-examination, Mr Hanrahan said that if the Complainant used his jeep for work, he should have had his manager’s permission and submit travel & subsistence claim.

Mr Harahan confirmed that the Complainant had some 10 years of service and unblemished record. He confirmed that it was the Complainant who told him that his yard was used for storage. The witness said that all GSSs keep a diary. If they refuel, they keep a receipt and bring it to the office, they make a diary entry. There should be records of each refuelling.

Regarding the stress the Complainant said he suffered at the time, the witness said that it was discussed with the Complainant at the meeting.

It was put to Mr Hanrahan that other staff were using the LVPC for fuel. He replied that he did not draw this conclusion. Mr Hanrahan said that from the spreadsheet provided, he could not draw a conclusion that the Senior Engineer was signing off on that.

Mr Hanrahan was asked why the Complainant was not suspended in breach of the Respondent’s own policy. He said that he was not involved in the process at that stage. It was put to the witness that trust could not be destroyed if the Complainant continued working until his dismissal. He had access to suppliers and to obtaining goods and services. Mr Hanrahan said that until he reached his conclusion, he never presumed anything. He said that the Complainant was being supervised by his manager.

It was put to Mr Hanrahan that the Complainant used all the fuel for the Respondent’s purposes. The Respondent’s representative intervened at that stage. Mr Keany BL noted that it was the first time that it was suggested that the Complainant used the fuel for the Respondent’s proposes. It was asserted that despite having ample opportunity to do so, the Complainant never said that before. He outlined his personal difficulties but did not suggest that the fuel was used for the Respondent’s purposes. It was noted that nowhere in the minutes there is any mention of that. Mr Keany BL referred to the Investigation Report where it was stated clearly that the Complainant had accepted that fuel purchased using his LVPC was for personal use. SIPTU asserted that the Complainant’s understanding of “personal use” was that fuel was put in his personal vehicles but exclusively for the Respondent’s use.

On re-direct Mr Hanrahan clarified that the allegations against the Complainant were not the same as those against staff members who used the fuel card and the LVPC. There were no allegations of theft against the other three staff members. While they used the wrong card, they used it for work purposes and it was corrected.

Summary of direct evidence and cross-examination of Ms Eileen Ruane, Director of Services, HR

Ms Ruane said that there was communication between the SEO in HR Department and the Senior Engineer regarding the necessity to review procedures in the context of suspension. Ms Ruane said that the Respondent does not impose suspension automatically. In fact, it is utilised very rarely. It is applied as a last resort when there is a possibility that the conduct would continue or if there was a possibility of interference with the investigation process.

Ms Ruane said that the alleged misconduct was inappropriate use of cards. As a result, following consultations with the Senior Engineer, it was confirmed that the cards have been removed. Ms Ruane thought that that was sufficient. Ms Ruane said that the decision regarding suspension was separate to the matter of breach of trust.

Ms Ruane said that the Grievance and Disciplinary Policy was developed by the LGMA in 2003. As case law has developed since, it was amended to say that suspension “may” happen.

In cross-examination, Ms Ruane did not dispute that at the relevant time, the policy did not say “may” in the context of suspension. However, she said that it would be prejudicial to suspend the Complainant. SIPTU put it to Ms Ruane that she should have followed the policy, which was unambiguous.

It was put to Ms Ruane that the Complainant had access to purchasing good in a variety of outlets. Ms Ruane disagreed and said that the Complainant would have to use the purchasing system. If he raised a purchase, another person would have to approve it. Subsequently invoice would be cross-checked. Up to some low level, a purchase could be made but they were subject to checks.

Ms Ruane said that she was concerned about the Complainant’s mental health and recommended that the Complainant be reviewed.

Summary of direct evidence and cross-examination of Mr Conneally, Chief Executive

Mr Conneally outlined his career in the local authorities. He said that she commenced in his role as the Chief Executive in April 2023.

Mr Conneally said that he became involved in the process at the appeal stage. He conducted the appeal in accordance with the Disciplinary Policy and issued an outcome.

Mr Conneally said that strand 1 and 2 allegations were admitted, there was a dispute regarding strand 3 transaction.

Mr Conneally said that the grounds for appeal were furnished but there was no attempt to challenge the substance of the findings. Mr Conneally said that he received an email from the Complainant requesting direct contact to explain to him that the Complainant was not a bad person. However, it would be unusual in a formal process to engage in this manner.

Mr Conneally said that he invited the Complainant to a meeting, he enclosed a copy of the Disciplinary Procedure and copies of all documentation gathered to date. He said that at the meeting he gave the Complainant and his representative an opportunity to put their case forward.

Mr Conneally said that ethics is an important part of public service and that integrity of public service is protected by adhering to procedures.

With regard to the mitigating factors put forward by the Complainant, Mr Conneally said that there was a lot going on in the Complainant’s life outside of work: his farm, his relationship with his father and his uncle, his father’s poor health, and the Complainant’s own health difficulties.

Mr Conneally said that at no stage during the meeting did the Complainant indicated that the fuel was for the Respondent’s use. It was clear case of putting his hand up, admitting to having procured fuel for his own use.

With regard to the alleged blurred lines by saying that the Complainant used his jeep to tow the trailer, Mr Conneally said that the Respondent is a big organisation and has resources to tow whatever was needed to be towed. There is no need for individuals to use their own vehicles. If there was no required equipment, it would be procured.

Mr Conneally said that at the appeal meeting the Complainant showed him a video of a person delivering material to the Complainant’s property. It was put to the Acting Senior Executive Engineer who said that as far as he was concerned it was an orchestrated order and deliberately videoed. It was delivered to the office on 12 December 2023, the day of the Complainant’s appeal hearing.

Mr Conneally said that he was cognisant of the importance of his decision. He considered all facts and made sure that he has all information required to make a decision. He said that he was requested by the Complainant and his representative to speak to the Acting Senior Executive Engineer and the Director of Services (Mr Hanrahan) to confirm the issues raised in his report. He did so. He said that what he heard was contradictory to what he had heard from the Complainant.

Mr Conneally said that there are some 5-6 up to 10 General Operatives reporting to a GSS, it is a position of seniority that is critical to the Respondents’ operation.

Mr Conneally said that he looked at the human aspect when making his decision, he understood that a decision of this magnitude would have consequences. He reviewed the documents and reports; he considered the facts and evidence and its veracity; he referred to the Code of Conduct that applies to everyone from the CEO to a GO in the context of trust, integrity, and transparency; he considered the mitigations put forward. Mr Conneally said that in this case, there was nothing accidental and it was a serious breach of trust.

Mr Conneally said that it was with a heavy pen that he made the decision to terminate the Complainant’s employment. He said that the trust was severed and redeployment to a different location or role would not restore it.

Regarding the statement that other staff saw the Complainant towing vehicles and deliveries being made to his yard, Mr Conneally said that even if it was true (but he was not saying that it was), it would have no bearing on his decision. He would make sure that these arrangements were terminated and regularised. In his view, processes and procedures are paramount. It is his responsibility that his staff get home safely every day.

In cross-examination, Mr Conneally said that he was made aware that the Complainant said that he used his own vehicle. It was put to Mr Conneally that it was contrary to what the Acting Senior Executive Engineer said. Mr Conneally said that the Acting Senior Executive Engineer said that there was “no necessity” to do so, neither was there any need for storage at the Complainant’s property. He said that the Respondent put huge resources into health & safety and protection of staff, there are procedures and policies in place. When there are risks, the Respondent makes sure that they are reduced or eliminated.

Mr Conneally agreed that he was aware that following the appeal, all vehicles were removed from the Complainant’s property. He said that there could not be a historic arrangement that would trump the requirement to store equipment etc. at the Respondent’s compound.

It was put to Mr Conneally that three other staff used the LVPC for fuel purchase and these were signed off. Mr Conneally replied that he did not know if the Acting Senior Executive Engineer signed off on these transactions. He said that there was a clear policy, and he was not aware that there was departure from it. He noted that he was aware that there was “exceptional circumstance” in the LVPC policy. He said that he was not sure what were the circumstances in these cases. He could not confirm if the other employees were investigated. It was put to Mr Conneally that it was custom and practice not exceptional circumstances. It was put to the witness that the Complainant was disciplined but the other employees were not. 

Regarding the Complainant’s query about a 4x4 vehicle, Mr Conneally said that if there was a requirement for one, the Respondent would have inquired. There was no reason for the Complainant to make enquiries himself and there was no reason why a GSS would be looking for special arrangements.

It was put to Mr Conneally that the Complainant was the only one with the licence to tow. He replied that, if there was a requirement, the Respondent would have trained or arranged for a licence to be obtained for staff.

Mr Conneally was referred to the minutes of a meeting he had with the Acting Senior Executive Engineer. It was put to him that while the Engineer said that the trust has been eroded, he still signed off the Complainant’s increment.

Mr Conneally confirmed that he considered the mitigating factors, he considered other options, and the effect the decision would have on the Complainant.

It was put to Mr Conneally that the policy states that in cases of allegations of gross misconduct, an employee “will be suspended”. Mr Conneally replied that in this case the investigation could not be interfered with and there was no reason for suspension. He added that the policy has since been reviewed and amended.

It was put to Mr Conneally that trust could not have been irreparably broken down if the Complainant remained in employment for one year. Mr Conneally replied that the Complainant’s access was curtailed significantly, he could not interfere with the investigation, and the Respondent needed to ensure that the process was fair.

In redress, Mr Conneally clarified that the use of LVPC for fuel is entirely different to the use of the Respondent’s card for personal use. He agreed that the procedure needed to be improved but theft constitutes gross misconduct.

SIPTU, on behalf of the Complainant submits as follows.

The Complainant was employed as a General Services Supervisor (‘GSS’) by the Respondent from 1 December 2013 until his dismissal on 8 February 2023.

BACKGROUND

The Complainant worked as a General Services Supervisor based in the Roads and Transportation Department - Connemara Municipal District.

The Complainant was issued with a fuel card as fuel cards are issued to all employees who have vans. He was also issued with a Low Value Purchase Card (‘LVPC’), which are issued to GSS Area Office and to one staff member in each crew. The Complainant used the fuel card to fuel his Ford Transit Connect and also for agri-diesel for vehicles on hire and other equipment.

On Thursday 16 February 2023, the Complainant requested to meet with his Line Manager, TJ Redmond, Acting Senior Executive Engineer. He made him aware that he had purchased diesel on two occasions for his own use. He offered to pay the money back and apologised. He also stated that he had used the LVP card to purchase fuel on 1 December 2022 to the value of €162.89.

On 22 February 2023 the Acting Senior Executive Engineer met with the Complainant who returned both the fuel card and the LVP card.

On 23 February 2023, the Acting Senior Executive Engineer and the Executive Technician met with the Complainant in the Clifden Area Office. The Complainant again apologised and offered to repay the amount. The Complainant was questioned about the matter. However, he was not afforded the opportunity to have representation. He was not advised of the gravity of the situation. He was in a very poor mental state on the day in question. Indeed, he said to his Line Manager that on his way to the meeting he had considered whether or not he should walk out in front of a truck. However, the meeting continued notwithstanding this.

On 7 March 2023 Rachel Lowe, Senior Engineer, Roads & Transportation wrote to the Complainant stating that the Council were commencing the process of undertaking a Disciplinary Investigation to investigate the alleged inappropriate/unauthorised use of the LVP and Fuel Cards. She stated that

'this may constitute gross misconduct in accordance with the Galway County Council's Grievance and Disciplinary Procedure'.

However, the Complainant was not suspended as set out in the Procedure which states “If there is an allegation of gross misconduct, the staff member will be suspended on full pay pending the outcome of an investigation into the alleged breach of discipline”. Ms Lowe enclosed a copy of Report from the Acting Senior Executive Engineer dated 24 February 2023 and a copy of the Grievance and Disciplinary Policy. It is noteworthy that the Complainant continued to work in his role up to the date of his dismissal.

On 14 March 2023, the Acting Director of Services, Operations and Infrastructure wrote to the Complainant informing him that Mr Kevin Reilly, former Senior Executive Officer, Cavan County Council had been appointed to conduct the investigation. He again cited that the allegations as set out in the Acting Senior Executive Engineer’s Report dated 24 February 2023 may constitute gross misconduct. He also enclosed a copy of the Terms of Reference.

The Investigation

The investigation was conducted by Mr Kevin Reilly and the Report signed on 3 July 2023.

The disciplinary hearing of 22 August 2023

On 18 July 2023, Niamh Farrell, Senior Executive Officer, Human Resources Department wrote to the Complainant to advise that the Acting Director of Services, Operations and Infrastructure had a level of acquaintance with the Complainant's father. In the circumstances and to avoid a perceived conflict of interest the Respondent appointed Mr Liam Hanrahan, Director of Services, Economic Development and Planning to be provided with the Investigation Report.

On 19 July 2023 Mr Hanrahan wrote to the Complainant enclosing a copy of the Investigation Report and inviting him to a Disciplinary Hearing on 17 August 2023. The meeting was rearranged for 22 August 2023 as the Complainant’s representative was on leave. The notes were issued to the Complainant who amended and returned same.

It should be noted that certain allegations that were upheld in the Investigation Report were looked into further after this hearing. It is the case that certain allegations that were upheld were in fact unfounded. In the letters from Mr Hanrahan to the Acting Senior Executive Engineer dated 1 September 2023 and the response of 13 September 2023 confirming what the Complainant said in that a teleporter was on hire post 1 July 2022. As a result of this Mr Hanrahan wrote to the Complainant on 25 September 2023 to confirm he would not be drawing any conclusions or making any references to point 2 on page 16 of the Investigation Report.

The dismissal of 25 October 2023

On 25 October 2023, Mr Hanrahan wrote to the Complainant with the outcome of the disciplinary hearing, which recommended the termination of his employment to Liam Conneally, Chief Executive on the grounds of 'gross misconduct'. Mr Hanrahan wrote to Mr Conneally on the same date to set out his recommendation.

On 27 October 2023, Ms O'Connor, SIPTU emailed Mr Conneally, Chief Executive appealing the outcome issued by Mr Hanrahan, Director of Services.

The appeal hearing of 12 December 2023

The appeal hearing took place with Mr Conneally, Chief Executive on 12 December 2023. Notes of the hearing were issued.

The outcome of the appeal was issued to the Complainant on 8 February 2024 rejecting his appeal against dismissal. The Complainant's Line Manager was interviewed by Mr Conneally and a copy of the notes were furnished with the outcome.

SIPTU submits that the Acting Senior Executive Engineer stated there was no necessity for the Complainant to store machinery at this property or that deliveries be made there. Yet it was the case that this was in fact custom and practice for many years (as set out by various staff). SIPTU submits that all machinery etc. was removed after Mr Conneally was made aware of the situation at the appeal hearing. This does not take away from the fact that the Respondent was using the Complainant's premises free of charge for storage and deliveries for many years.

Mr Conneally in his outcome stated that the Complainant was not in any position of trust. SIPTU submits that the machinery held on his premises clearly shows a high level of trust due to the value of same. The Complainant’s Line Manager was aware at all times that the machinery was there.

Mr Conneally makes no reference to the evidence given that the Complainant used his own jeep on a regular basis for work. He did not take this into account as mitigation.

The matter was referred for adjudication by the Workplace Relations Commission on 6 March 2024.

UNFAIR DISMISSALS ACT 1977

Substantial grounds

Section 6(1) of the Unfair Dismissals Act 1977 states that:

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 the circumstances, there were substantial grounds justifying the dismissal.

SIPTU contends that the Respondent did not have 'substantial grounds' justifying the dismissal of the Complainant. He owned up to the matter, he co-operated fully with the investigation. He was in poor health at the time and was under severe pressure due to the ill health of his father.

Section 6(2) of the Act states that:

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 ...

The combined effect of the sections 6(1) and 6(2) of the Act requires the Adjudication Officer to consider whether the Respondents' decision to dismiss the Complainant, on the grounds stated, was reasonable in the circumstances. It is well established that it is the role of the Adjudication Officer in such cases to consider the reasonableness of the employers' decision in the circumstances.

In the High Court case of Bank of Ireland v Reilly [2015] IEHC 241 the Court held that “the question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned”.

It is well established case law that it is the role of the Adjudication Officer to consider the reasonableness of the Respondent's decision in the circumstances and not to establish the guilt or innocence of the Complainant in relation to the allegations presented. This is helpfully set out by the Employment Appeals Tribunal (EAT) in the case of Looney and Co Ltd v Looney UD 843/1984:

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

SIPTU contends that the Complainant's exemplary service and his unblemished record nor his personal circumstances were not taken into consideration by the Respondent.

Moreover, it was made abundantly clear at all times that the Complainant used his own jeep for the Respondent’s use as the Ford Transit was not capable of carrying out much of the work. The Complainant submitted written confirmation from colleagues at the appeal stage to verify that he used his own jeep whilst working for the Respondent. He never submitted any bill for diesel or even made reference to this. His aim was to 'get the job done'. Indeed, he emailed his Line Manager looking for a bigger vehicle to be hired that would have the capacity for the work but this was not sanctioned.

The Respondent also had free storage for several decades at the Complainant's yard and evidence of same was adduced at the disciplinary hearing. All deliveries to the Respondent were to the Complainant's home address. In the circumstances the decision to dismiss was not reasonable.

Disproportionate sanction

SIPTU contends that the use of the employer's 'nuclear weapon' against the Complainant was obviously disproportionate, and, therefore, unreasonable within the meaning of section 6(7)(a) of the 1977 Act. There were other lesser sanctions that could have been applied. No consideration seems to have been given to same.

There is no evidence that the Respondent made any consideration of a lesser sanction alternative to dismissal. The Complainant had an unblemished record and was an excellent loyal employee. Moreover, he apologised on many occasions for his behaviour and offered at all times to pay back the monies.

No mitigating circumstances were taken into account. It is clear that the Complainant's behaviour was completely out of character. No consideration was given to the fact that the Complainant was in poor health at the time and had personal issues with his father being very ill. He furnished a doctor's letter setting this out in June 2023.

SIPTU contends that the dismissal was disproportionate and cite the case of A Sales Executive and A Software Company - ADJ-00027573 wherein the Adjudication Officer held that the dismissal was substantially unfair as well as wholly disproportionate and that no reasonable employer would have made a decision to dismiss him in the circumstances. The AO also held that the dismissal was procedurally unfair.

In the High Court case of Samuel J. Frizelle and New Ross Credit Union IEHC 1371 Justice Flood opined that '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 and that put very simply, principles of natural justice must be unequivocally applied'.

The Complainant was summarily dismissed without consideration of any lesser sanction and without taking into account the effect a dismissal would have on his career and in such a small community.

This is consistent with the EAT case of Duffy v Hugh McAvoy 'Talk To Me' UD1048/2009 where it was stated that a failure to suspend an employee in gross misconduct situations may undermine the gross nature of the employee's behaviour as it brings into question whether it was something that warranted dismissal in the first place.

This applies to the Complainant’s case also. He was not suspended after the incident. He continued to work as normal and carried out his full duties notwithstanding the fact that the investigation was ongoing. He carried out his role from 16 February 2023 up to the date of his dismissal on 8 February 2024. This is just one week short of one year since the matter came to light.

Moreover, SIPTU submits that this evidences that there was not a breakdown of trust between the Complainant and the Respondent. Deliveries continued to his house for the Respondent, and the machinery was still stored at his premises rent free. It is the case that work colleagues etc. came and went from his premises and it was well established that the deliveries were sent there and machinery was stored there also. The Complainant’s Line Manager was well aware of this as this had been custom and practice for years. It is noteworthy that once it was raised at the Appeal Hearing the machinery was removed and no more deliveries were sent to the Complainant's address. However, this was not taken into consideration when the Complainant was dismissed.

REDRESS SOUGHT

The Complainant is seeking re-instatement.

SUPPLEMENTAL SUBMISSION

THE REMEDY OF REINSTATEMENT

In the Supreme Court case of An Bord Banistiochta, Gaelscoil Moshiológ v the Labour Court [2024] IESC 38 O'Donnell, C.J. determined that by making an order for reengagement with effect from the 1 September 2017, the Labour Court did not give proper consideration to the "exceptional nature of the remedy, the practicality of such reengagement, or the impact upon the school or on the principal who had been appointed" [after the Principal's dismissal].

The judgement stated that there were apparent difficulties with ordering the Board of Management to re-engage the Principal who had not been in the school for 11 years, who was being restored as a Principal of a school where there was another Principal in place since 2016. There had been a "bitter dispute" between him and the Board of Management which consisted in part of parents and teachers at the school.

O'Donnell, C.J said "Unfortunately, very little consideration if any, appears to have been given to these matters in the determinations of the WRC, Labour Court and High Court.”

O'Donnell, C.J quoting Des Ryan (from Redmond on Dismissal Law) "where the enterprise is small, the Workplace Relations Commission will probably conclude that compensation is the more appropriate remedy. On the other hand, if a complainant had worked for a large company in a relatively impersonal employer/employee relationship, particularly in a less senior position, then of the primary remedies [reinstatement or re-engagement] might be appropriate. In contrast, the primary remedies are unlikely to be appropriate for a senior employee".

The Complainant contends that had the mitigating circumstances set out at the disciplinary hearing and appeal been taken into account that a reasonable employer would not have dismissed him. Re-instatement is his preferred form of redress. He has only been out of the employment for less than one year. The Respondent has approximately 875 employees, and it would be easy for the Complainant to resume his role with little difficulty for the Respondent. Indeed, his role remains vacant since his dismissal. He is not in a senior position, and, therefore, re-instatement is appropriate.

SIPTU contends that the case of An Bord Banistiochta, Gaelscoil Moshiológ v the Labour Court is at variance to the within case due to the length of time the Principal was out of the school and the fact that a new Principal had been appointed in 2016. This is not the position in this case as the Complainant is only out of the role for less than one year as set out above. His role remains vacant.

SIPTU contends that the Complainant in this case continued on in the role for one year up until his dismissal in February 2024. The Complainant worked as normal during this period and there was no friction, disharmony or any acrimonious relationship. There was no decrease in productivity or performance during this time. The Complainant had an unblemished record. He was an excellent team player with a good working relationship with senior management. In these circumstances it is not accepted that there has been a breakdown of trust and confidence between the Respondent and the Complainant and are seeking re-instatement.

THE DECISION NOT TO SUPEND THE COMPLAINANT

In The Governor and Company of Bank of Ireland v Reilly [2015] IEHC 241 Noonan J held "a suspension ought not to be undertaken lightly and only after full consideration of the necessity for it. Suspension of an employee 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".

SIPTU submits that the Respondent in this case did not deem it necessary to suspend the Complainant as it did not think it was justified in the circumstances. SIPTU contends that the Complainant was in a position to trust and continued to manage staff. The Complainant had access to valuable equipment and supplies during this period, which were stored in his yard.

Whilst it is accepted that the Complainant's fuel card and LVP were removed and a similar restriction was imposed on the use of fuel and LVP cards by the Complainant's team, SIPTU is at a loss to understand why discrepancies with other employees' LVPC were not investigated by the Respondent at all following the issue coming to light in the Investigation Report.

In DHL Express (Ireland) Limited v Michael Coughlan UDD1783 the Labour Court cited an earlier Employment Appeals Tribunal case in which it was stated that gross misconduct “... applies 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". The Labour Court felt that the grounds here “failure to protect and safeguard company property” did not come within that definition. Equally the Labour Court noted that "the company had waited for two weeks before suspending Mr. Coughlan meaning he was free to drive for the company, and which would indicate that his conduct was not viewed as very bad behaviour that could not be tolerated a minute longer."

In this case the Complainant continued in his role for one year until his dismissal. In these circumstances it is not accepted that the Respondent viewed the matter as gross misconduct.

At the adjudication hearing, SIPTU said that it is astonishing that the Respondent asserted that trust was gone. The Complainant was not suspended; he continued in his role for 51 weeks. In fact, he got a pay increment. His work was deemed to be up to standards by the A/SEE and his increment was signed off on 27 May 2023. SIPTU said that the Respondent did not follow its own procedures which stated that if there was an allegation of gross misconduct, the staff member would be suspended. 

In her concluding remarks, Ms O’Connor, SIPTU, on behalf of the Complainant stated that the Complainant took great pride in his job. The Complainant did not steal, it was never about money. Ms O’Connor said that the manner the disciplinary process was conducted was wrong. She said that the A/SEE was fully aware of the use of the Complainant’s jeep for the Respondent’s purposes. The Complainant said from the outset of the process that he used diesel for the Respondent’s purposes. In response to the Respondent’s objection, Ms O’Connor said that the Complainant did not voice it properly.

Ms O’Connor said that if an employer enforces policies, it also has to follow them. The Respondent did not follow its policy when the Complainant was not suspended. Ms O’Connor agreed that the Complainant was certified fit to engage but, she asserted that he did not advocate for himself as he should have.

In respect of mitigating factors, Ms O’Connor said that there have always been blurred lines  and the machinery was stored in the Complainant’s yard for many years. Ms O’Connor said that people on the ground were aware of the blurred lines, and it was never an issue. The work was done to the best of the staff ability but not always in a manner to dot every line.

Ms O’Connor said that the Complainant is currently earning a higher salary than that with the Respondent and he would not put himself through the WRC process if he did not believe that there was no wrongdoing.  She said that a lesser sanction should have been looked at. Ms O’Connor further noted that the Complainant did not voice his case properly.

LOSS

The Complainant furnished a detail calculations of the financial loss following the dismissal, which totalled €1,343.19.

Summary if direct evidence and cross-examination of Mr Walsh, the Complainant

Mr Walsh said that he started working for the Respondent as a driver in 2013, he then got promoted to a GSS. He never had any disciplinary issues.

Mr Walsh said that he had great relationship with his manager, they spoke every day. He said that the Executive Engineer was part of his family and he was hurt and felt let down by what he had said about the Complainant.

The Complainant said that on 16 February 2023 he contacted the Executive Engineer and asked him to meet at a carpark. The Complainant said that he told the Executive Engineer that he was aware that there was talk about discrepancies, which he was aware of. He told the Executive Engineer that he fuelled his jeep, which he used for towing. The Complainant said that he was upset, he dealt with a lot of pressure at the time at home with his father’s illness, his own health difficulties, Covid-19, etc. He said that the Executive Engineer told him that he needed to think about it and asked him to apologise to the staff in the Clifden office.

The Complainant said that the Executive Engineer asked him to go to the Clifden office to have a formal meeting to discuss the matter. The Complainant said that he was apprehensive and worried. He thought about throwing himself under a passing truck. He had no representation but the Executive Engineer was accompanied, he felt ambushed.

The Complainant said that when he received the invitation to a disciplinary investigation, dismissal was not mentioned in the letter. As the policy said that he would be suspended if there were allegations of gross misconduct, he did not believe it was serious, that it was gross misconduct. He said that he did not understand the gravity of the situation. He said that the A/SEE asked him to apologise to the office staff and he did apologise, demeaning himself and crying in front of them. He said that he did not even know what he apologised for.

The Complainant said that the cards were taken off him but he could still buy whatever he wanted to. He said that if he had to run it by the A/SEE or another named manager, he would not be able to manipulate the deliveries, as suggested.

The Complainant said that he met with Mr Reilly in a hotel in Galway. He said that Mr Reilly was concerned about his health ad contacted his union representative after the meeting inquiring if the Complainant would see the Respondent’s doctor. He was reviewed and on 29 May 2023, the doctor issued a report stating that the Complainant is fully fit for work and to engage with HR and management. The letter also stated that the Complainant could be reviewed upon request. The Complainant said that he was not reviewed afterwards. He told the doctor that he wanted it done with.

The Complainant said that he told Mr Relly that he fuelled his jeep to use it for towing and that there was nobody else who had a licence to do so. The Complainant said that what happens on the ground and what is written in procedures is far apart. The Complainant said that it is incorrect that the Respondent could hire anything. He further said that there was time element, weather conditions etc. that had to be considered. He wanted the job done.

The Complainant said that he had a Ford Ranger provided. However, he used his own vehicle for towing machinery. His vehicle broke down and he replaced it but wear and tear was visible. He discussed it with the A/SEE who told him to get quotation for a new vehicle. He said that the A/SEE would have seen him towing machinery, he would have sat with him in the jeep.

The Complainant said that since before he started, vehicles would have just pulled up and fuelled, there was no odometer reading, a docket would have been signed, and a payment would have been made at the end of the month by LPVC and sent to the office. His understanding was that the A/SEE was the man who signed it all off.

Regarding the use of his yard, the Complainant said that Ms Lowe has never came to his site and has never spoken to the staff who gave written statements for him. He said that every driver with a salter parked at their homes.

Regarding the matter of teleporter, the Complainant said that it was baffling. It was on hire but it was only corrected when he showed an invoice.

The Complainant said that he had spent years working hard, more than he should have, to follow on in his father’s footsteps, to build his reputation. He did not do anything wrong, he did not steal 1 cent and not a litre of fuel was for personal use. He said that he never put fuel into his jeep for his own use outside work. He said that it was the same as with the work boots provided by the Respondent and his own boots, he used them interchangeably, he would not change boots to go to the farm. The Complainant said that he is not educated and when he said for “personal use”, he meant his personal jeep to tow the roller.

The Complainant said that he spoke and obtained letters of recommendation from the football chairman, the priest and other people.

The Complainant said that the Chief Executive seemed shocked when he was told about the equipment in his yard. It was all removed and the Complainant thought it was on the CEO’s instructions.

The Complainant said his name was destroyed, his family was affected, it put him into a dark place. He suffered from stress, shame, his family’s good name was put into disrepute, his son was bullied at school. He said that everyone knows how hard he had worked and now people say that he stole from the Respondent. The Complainant said that he loved his job, and it was taken away from him because he was doing his job. He said that nothing was black and white, even in his father’s times the depot was not used. He criticised the state of the depot when he took over.

In cross-examination, the Complainant confirmed that he normally worked Monday – Friday and was on call every three weekend. He said that he would have 5-7 staff reporting to him but depending on a project, it could raise up to 20 staff.

It was put to the Complainant that while he criticised the state of the depot, it was one of his duties to maintain it. The Complainant said that he inherited the depot. He said that he raised the issue at every meeting.

The Complainant agreed that he had a degree of autonomy and he was in a position of trust.

The Complainant said that, although he was stressed and on medication, he had read the Disciplinary Policy. It was put to the Complainant that he read it carefully enough to notice that allegations of gross misconduct should lead to suspension. He confirmed that he believed that if he was accused of gross misconduct, he would have been suspended.

The Complainant was referred to points 7.2. and 7.3 of the Policy. It was put to him that he was suggesting that he read and understood the matter of suspension (point 7.2) but did not understand that if an investigation upholds a finding of gross misconduct, the normal consequence will be dismissal. The Complainant said that, as he was not suspended, he thought it was not gross misconduct and nothing would happen, he would not be dismissed. It was put to the Complainant that there was no conditionality between suspension, gross misconduct and dismissal. The Complainant replied that he understood that if he was not suspended that there would be no dismissal.

The Complainant confirmed that at all times any purchase he made on behalf of the Respondent was used by the Respondent and not a litre of fuel was for personal use. He said that it has always been his position that the fuel was not for personal use. He confirmed that he was represented and advised by SIPTU throughout the process. He also confirmed that SIPTU prepared the written submission on his instructions. It was put to the Complainant that the submission stated that he made the A/SEE aware that he had purchased diesel for his “own use” and he offered repayment but he now argued that it was not for personal use. The Complainant said that what he meant was that he had to put it into his jeep which he used for towing.

The Complainant said that he was falsely accused and that there were plenty of people who were falsely accused and imprisoned. It was put to the Complainant that presumably it would have been brough to their employers’ attention that they were falsely accused. If he believed it was unfair and baseless, he would have said that. However, he never said that the allegations were rubbish and he did not do anything wrong.

At this stage a short recess was granted on the Complainant’s request.

Following the recess, it was put to the Complainant that the A/SEE’s report states that he was on leave when he requested to meet with the A/SEE and he then said that he had purchased diesel for his own personal use; he stated that what he did was wrong; he apologised and offered repayment. It was put to the Complainant that nothing in the document indicates that he said that it was rubbish, that he did not do anything wrong. The Complainant said that he was not himself, he was upset and stressed. He believed the A/SEE who, he maintained, indicated that if he apologised, everything would be OK.

It was put to the Complainant that he and his representative would have seen the document throughout the disciplinary process but no issue was raised. It was further put to the Complainant that the letter of 7 March 2023 clearly shows that things were not OK. The Complainant repeated that he was not suspended so he did not believe it was gross misconduct.

The Complainant was asked to point to any instance when he would have taken issue with the A/SEE’s report. A short break was granted for the Complainant to review the documents. It was confirmed after the break that there was nothing in the documentation to suggest that the Complainant raised any issue with the report.

The Complainant said that Mr Reilly said in his evidence that the Complainant had told him that he had used all the fuel for the Respondent’s purposes. The parties reviewed their notes and no such comment was found noted.  The Complainant said that his position now was that the A/SEE’s report is inaccurate.

The Complainant was referred to the minutes of his meeting with Mr Reilly on 3 May 2023. His attention was drawn to the statement where he confirmed that the information contained in the A/SEE’s report of 24 February 2023 was an accurate account of his engagement with the A/SEE.  The Complainant said that he left the meeting crying many times. He said that he could not remember what he had said.  He said that he confirmed it because he wanted to move on.

The Complainant was unable to point to any document where he allegedly said that the fuel was used for towing. He confirmed that he never raised any issue with Mr Reillys’ minutes.

It was put to the Complainant that Mr Reilly clearly states that it was “non-Council use”. It was put to the Complainant that he was asked to provide an explanation and he said that he would have needed to make 90km each way journeys to the farm, which was expensive, he said that he needed fuel for farming. The Complainant said that it was the Respondent’s interpretation.

The Complainant was referred to Mr Reilly’s report where he on numerous occasions made clear to Mr Reilly that the fuel was not for work use. It was put to him that he and his representative received a copy of the report but never raised any issue. The Complainant said that he did not contradict it, he just said “yeah” to whatever was presented to him. He confirmed that he signed the report and sent it back.

The Complainant was asked if he told the Mr Hanrahan, Director of Services who conducted the disciplinary hearing about the report being incorrect. A short break was given to the Complainant to review the minutes of the meeting with the Director of Services. After the break the Complainant said that he contradicted the matter of teleporter. It was put to the Complainant that the Director of Services clarified the issue of teleporter and the allegation was dropped, this was a sign of fair process. It was put to the Complainant that he was able to point the teleporter issue, but he never said that the allegations were not true, that he was able to stand up for himself when he disagreed with the allegations. The Complainant said that the findings were untrue.

It was put to the Complainant that he lodged his appeal but at no stage made reference that the findings were untrue. The Complainant replied that he did not know.

The Complainant said that he would have used the drums to put back in his jeep diesel that he would have used for the Respondent’s purposes the day or two days before. It was put to the Complainant that if he used the fuel card, he would need to give the vehicle registration so perhaps it was easier to pull up in the Respondent’s van and fill the drums.

With regard to the statements the Complainant produced in evidence, the Complainant confirmed that his friend put them together on the Complainant’s instructions. The Complainant printed the statements and asked the persons in question to sign them. He confirmed that they were not their words. He agreed that none of the statements referred to diesel being used for the Respondent’s purposes.

Regarding the matter of the Complainant’s property being used for storage and/or deliveries, the Complainant could not explain its relevance to the allegations and finding against him. The Complainant said that he understood that he did not deal with the diesel issue in a proper manner but there were blurred lines, things got intertwined. He confirmed that he never sought approval to fill his jeep in return for towing.

The Complainant said that he raised the issue of towing with the Respondent. He agreed that the use of fuel for personal or the Respondent’s use was a balancing act. The Complainant agreed that a GO more than likely had a licence that allowed him to tow.

The Complainant agreed that while the LVPC would have been used by other staff members, there was no indication that the fuel purchased was used for their personal vehicles.

In redress, the Complainant said that his manager knew that he used his own jeep. He felt that he was reimbursed by filling his jeep. He regretted that it happened and said that he should have left everything on the side of the road.  He said that he wished that the signatories of the support statements were contacted as they knew he did it because he wanted the job done.

The Law

Section 1 of the Unfair Dismissals Act provides the following definition of ‘dismissal’:

‘dismissal’, in relation to an employee, means—

“(a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

(b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer.”

Section 6 of the Act stipulates as follows:

‘Unfair dismissal

(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.

(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 Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000 (S.I. No. 146/2000) promotes best practice in the conduct of grievance and disciplinary procedures and emphasises the importance of procedures to ensure fairness and natural justice. 

The core tenet of the Code is that all employees are entitled to fair procedures and natural justice in all of their engagements with their employer.

The essential elements of the Code are that allegations must be investigated; a worker under investigation must be afforded the right to be heard; the worker has a right to be represented at all stages; if the investigation finds that there is a case to answer, there must be a separate disciplinary hearing and there must be a right of appeal of any sanction. All of these requirements were met by the Respondent in the instant case.

The combined effect of the above requires me to consider whether or not the Respondent's decision to dismiss the Complainant, on the grounds stated, was reasonable in the circumstances. The Act places the burden of proof on the Respondent 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 when conducting the disciplinary process.

The approach of 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 it was held that: ‘…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 …. ‘.

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] 23 E.L.R.195that: 

‘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 Farm UDD1735 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.’

In Dunne v Harrington UD166/1979 the EAT provided guidance in relation to the approach that should be applied by an employer when conducting an investigation into a case of dishonesty which may lead to dismissal. The EAT held that:

‘(a) personally in a fair and reasonable manner, i.e. as fully as is reasonably possible, confronting the “suspected” employee with “evidence”, checking on and giving fair value to the employee’s explanation or comments and allowing the employee to be represented at all such meetings/confrontations if the employee requests it or a union/management agreement requires it and to produce “counter evidence” or he may:

(b) rely on the reports of others. If he does so without confronting the accused employee with the contents of the same, without hearing, investigating and giving value to his replies, giving him reasonable opportunity to produce rebutting “evidence”, and to be represented if the employee feels this to be desirable, then such employer breaches a fundamental rule of natural justice, viz, that the other party (i.e. the employee in these circumstances) should be heard. In short, an employer acting on the reports of third parties and not acquainting the employee with same does so at his peril if it results in the dismissal of that employee.’

It is well established that is not the role or function of the Adjudication Officer to determine the guilt or innocence of the employee, 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 reasonable, based on the information available.

The Labour Court summarised this rationale in Clancourt Management Ltd T/A Clancourt Management v Mr Jason Cahil lUDD2234:

‘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.’

Notably, as held in the same case, ‘a failure to adhere to proper procedures renders a dismissal outside a band of reasonableness’. 

In the case of O'Riordan v Great Southern Hotels UD1469/03 the EAT held that: ‘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.’

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 Respondent contends that the Complainant was dismissed on the grounds of gross misconduct.

Having considered the evidence before me I find that sufficient grounds existed for the Respondent to initiate the investigation process. Any investigation and disciplinary process applied must be in accordance with the requirements of fair procedures, due process and natural justice.

The Complainant raised his concerns in relation to the reasonableness of the Respondent’s disciplinary process arguing that the Respondent should have reached out to the Complainant’s colleagues who provided written confirmation at the appeal stage to verify that he used his own jeep whilst working for the Respondent.

The Complainant was afforded every opportunity to present his account of events. At all stages of the process, the Complainant consistently stated that he used the Respondent’s cards to procure fuel for personal use. I cannot accept that the Complainant misunderstood the meaning of the word “personal” in this context. The Complainant accepted the minutes of meetings and the reports generated throughout the process and at all stages made unambiguous statements in that regard. Throughout the process, the Complainant was represented. I cannot accept his assertion that he signed off the documents and agreed with them only to “move on”.

It is somewhat implausible to assert on the last day of three days’ hearing that, in fact, the fuel was used exclusively for the Respondent’s purposes. Even if the lines were blurred, as alleged by the Complainant, and even if the evidence of the Complainant’s colleagues would support this assertion, this would not give the Complainant an entitlement to use the Respondent’s funds to fill his vehicle without prior authorisation. Therefore, I find that the Respondent’s decision not to interview the Complainant’s colleagues did not compromise the fairness or integrity of the process.

The Complainant further asserted that the Respondent’s decision not to suspend him tainted the process and indicated that the Respondent viewed the matter as gross misconduct.

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.”

In the case of O'Sullivan v HSE [2023] IESC 11, the Supreme Court clarified what employers are required to consider before an employee can be suspended from their employment. Ms Justice Dunne held that the proper standard of review for suspension was found in Braganza v BP Shipping Limited [2015] 1 W.L.R. 1661. If an employer could demonstrate “honesty, good faith and genuineness and the […] absence of arbitrariness, capriciousness, perversity and irrationality” then a court would not interfere with a decision to suspend an employee.

It is clear from the above that the decisions to suspend should be exercised carefully and sparingly. Any suspension that is imposed by an employer in a disciplinary situation should only be a holding suspension for the purpose of an investigation and should not be seen as a punitive sanction.

The Respondent ensured that measures were in place and the risk that the Complainant might repeat the impugned conduct was minimised. I find that the Respondent’s decision not to suspend the Complainant did not taint the disciplinary process in any way.

The Complainant was afforded a comprehensive and thorough disciplinary process and was given ample opportunity to explain his actions. I am satisfied that the procedure followed by the Respondent that resulted in the Complainant’s dismissal, was a fair procedure.

The final matter for consideration relates to the proportionality of the sanction and whether or not it falls within the range of reasonable responses that might be expected in the circumstances

Band of Reasonable Responses

In relation to the Complainant’s summary dismissal, the applicable legal test is the “band of reasonable responses” test, as set out by Mr Justice Noonan in the High Court case of The Governor and the Company of Bank of Ireland v James Reilly [2015] IEHC 241, wherein he stated:

 “It is thus clear that 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.”

The Complainant asserted that the Respondent had not considered his unblemished record, his personal circumstances, and the fact that he used his vehicle and yard for work purposes. He further asserted that the sanction was disproportionate.

The Respondent submitted that the actions of the Complainant destroyed the Respondent’s trust and confidence in him and rendered the continuation of the employment relationship impossible, therefore justifying dismissal.

I accept that trust is an essential and crucial element of the working relationship between the Complainant and the Respondent. In Berber v Dunnes Stores [2009] IESC 10 the Supreme Court approved of the definition of the mutual obligation of trust and confidence as set out in Malik v Bank of Credit and Commerce International S.A.  [1996] I.C.R. 406 where the conduct objectively considered is likely to cause serious damage to the relationship between employer and employee. This is based on what the Supreme Court states was:

“Implied in a contract of employment a mutual obligation that the employer and the employee will not without reasonable and proper cause conduct themselves in a manner likely to destroy or seriously damage the relationship of confidence and trust between them”.

In the case of Moore v Knox Hotel and Resort Ltd. UD 27/2004, the EAT stated that summary dismissal as a consequence of gross misconduct could be justified when the trust and confidence between the parties had been irrevocably broken:

"[The claimant's actions] destroyed the respondent's trust and confidence in the claimant and rendered the continuation of that employment relationship impossible, thereby justifying her […] dismissal”.   

In O’Callaghan v Dunnes Stores UD54/2012 the EAT found that “Trust and confidence were essential elements in the employment relationship.  Breaching sales and refund procedures amounted in and of itself to gross misconduct”. 

I note that the evidence of Mr Hanrahan and Mr Conneally was that they both took the mitigating factors into consideration. The representations made by the Complainant were considered and the decisions were made without haste.

Having considered the matter, in all the circumstances of this case, I accept that the Respondent’s decision that, due to the Complainant’s actions, that essential element, the trust and confidence that underpins the employer and employee relationship no longer existed and it had no option but to terminate his employment was within the band of reasonableness. Having considered the matter, I find that the decision to dismiss the Complainant was within the range of reasonable responses of a reasonable employer.

It has long been accepted that it is not the role of the Adjudication Officer to re-investigate a matter that led to the dismissal of a complainant.  Rather it is the role of the Adjudication Officer as set out by the EAT in Looney & Co. Ltd. V Looney UD843/1984 to “consider against the facts what a reasonable employer in his position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s actions and decisions are to be judged.”

I am of the view that any employer faced with the same circumstances to those that pertained in this case would have acted in the same way.  I, therefore, find that the conclusion reached by the Respondent in relation to the conduct of the Complainant was reasonable in all of these circumstances.

For the reasons set out above, I find that the Complainant was not unfairly dismissed.

SIPTU, on behalf of the Complainant, submits as follows.

The Complainant relies on section 4(2) and section 8 of the Minimum Notice & Terms of Employment Act 1973.

.

SIPTU submits that, if it is found that the Complainant was unfairly dismissed, it would follow that the employer's right to terminate without notice because of misconduct saved by section 8 of the 1973 Act would not apply and, therefore, that he would have been entitled to €6,881.85 in respect of unpaid pay in lieu of notice. SIPTU, therefore, seeks compensation in that amount.

The Respondent’s position as that the Complainant had no entitlement to receive notice or payment in lieu thereof as he was dismissed for gross misconduct. 

The Law

Section 8 of the Minimum Notice & Terms of Employment Act, 1973 provides:

Right to terminate contract of employment without notice

Nothing in this Act shall affect the right of any employer or employee to terminate a contract of employment without notice because of misconduct by the other party.

I refer to the determination of the Labour Court in the case of Clogrennane Lime Limited and Joseph Curran MND171.  Mr Curran was dismissed for gross misconduct and his dismissal was determined by the Court not to be unfair.  In this context, the Labour Court upheld the decision of the Adjudication Officer that Mr Curran’s claim for statutory minimum notice had failed.

I have found above that it was reasonable for the Respondent to dismiss the Complainant on the grounds of gross misconduct. Consequently, the Respondent was entitled to terminate the Complainant’s employment without notice.

I declare this complaint to be not well founded.

Misconduct – dismissal – notice-