Complainant

Respondent

Parties

Conor  Seery

Gas Networks Ireland Ltd Gas Networks Ireland

Representatives

Vivian Cullen SIPTU-Trade Union

Louise O’Byrne

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00055845-001

31/03/2023

The Complainant commenced employment with the Respondent on 24 November 2003 as an Administrator. Employment ended on 03rd March 2023.

This complaint was received by the Workplace Relations Commission on 31st March 2023.

Overview of incident and investigation

In May 2022, while in the throes of depression and addiction, and with a large amount of personal debt; Mr. Seery made the unwise decision to try and acquire €3000 worth of One4AII gift vouchers for personal use. He initially intended to charge the invoice to a second company, with whom GNI had a close working relationship and who Mr. Seery thought would not seek re-imbursement from GNI for the invoice.

However, when the invoice came through from One4AII, he realized that asking his contact in the other company to pay for the Invoice would be wrong and could land her in a lot of trouble, and so he did not go through with the plan. Instead, he decided to use what he believed to be the 6 months grace period to pay One4AII the 3000 euro for the vouchers himself.

On the 25th May 2022, Mr. Seery was met by his manager Mr. Bernard Mooney, and his SIPTU representative Mr. Eugene Murphy, in relation to how unwell Mr.   Seery seemed at the time. After the meeting Mr. Seery went on sick leave and sought medical treatment for his depression and addiction issues.

The following day, Mr. Seery collected the One4All vouchers from One4AII and sold them. To try alleviate some of the pressure he was under mentally and financially, he used the money to pay off a personal debt of 1,500 euro.

A number of weeks later, another employee at GNI -Mr. Declan Greene- noted the invoice for 3,000 euro of One4AII gift vouchers and made approximately 6 attempts to call Mr. Seery about it. Mr. Seery- still very unwell- was not truthful with Mr. Greene on the phone in relation to the vouchers.

Mr. Greene mentioned the matter to another colleague Ms. Grainne Free, who also contacted Mr. Seery by phone about It. On the 11th of July 2022, when Mr. Seery had not responded to her, Ms. Free informed Mr. Mooney of the unpaid invoice.

In his interview on the 21st July 2022, Mr. Mooney outlined how he attempted to call Mr. Seery on the 11th of July, while "collating this stuff" and oh the 12th July asked could he meet him.

On the 13th of July, Mr. Mooney reported the matter to Mr. David Kelly and Ms. Kate Gannon because his "suspicions had been confirmed in relation to the evidence that [he] had, and [he] had enough to go with them". He thought they might ask "has Conor been in touch" and he would say "no he hasn't". According to Mr. Mooney, Mr. Kelly and Ms. Gannon advised him to make attempts to contact Mr. Seery that evening via text, which he did.

Mr. Mooney and Mr. Seery spoke on the phone on the 14th July. During this conversation, Mr. Mooney questioned Mr. Seery about the vouchers, at which point Mr. Seery became very upset. He tried to explain what had happened and how he was going to pay it back directly, but Mr. Mooney said he could not continue the conversation and would have to report the matter-although by his own later account he had already reported It to Mr. Kelly and Ms. Gannon the previous day.

On the 15th of July, Mr. Padraic O'Connell, Head of HR Operations, called and then wrote to Mr. Eugene Murphy (SIPTU) informing him that an investigation was being set up to "look at alleged fraud regarding Conor Seery", and that  they wished to meet Mr. Seery "on Monday or as soon as possible thereafter" to "explain the allegations".

Mr. Murphy replied that "the first priority should be Conor's health and well-being including his mental health" and "as he is on certified illness leave at present, it would be inappropriate to have him attend a meeting to discuss allegations of fraud".

Nevertheless, the investigation pressed ahead, with Mr. O'Connell asking Mr. Murphy to pass information on the allegations to Mr. Seery ("preferably cc' ing his personal email account"). The allegations were:

Improper and fraudulent use of company purchasing process for personal gain; and Inappropriateuseofcompanyassets/money

In the same email, Mr. O'Connell informed them they had until close of business the following day to submit representations on the medical treatment Mr. Seery was undergoing.

Trying to meet this deadline caused Mr. Seery a huge amount of distress, as he had to make multiple calls to try and get written accounts and reports from the drug task force service and his GP, but he felt he had no option but to try to engage. He wrote an email to Mr. O'Connell, while deeply upset and crying, apologizing profusely for the delays and explaining the efforts he was going through to try to get the information.

The respondent proceeded with the investigation, and posted the Terms of Reference to Mr. Seery.

In the Terms of Reference for the investigation, the allegations differed from the ones in the email sent by Mr. O'Connell, and were now:

"That the Respondent may have (a) improperly procured vouchers; and (b) improperly used the procured vouchers, (c) inappropriately used company assets"

The investigators waited until Mr. Seery was certified fit to engage to interview him. This interview took place on Thursday 8th September.

BACKGROUND

·       The Respondent company is a commercial semi-state body and multi-utility company with responsibility for the delivery of Ireland’s national gas infrastructure and services. It has its primary operations in both Dublin and Cork and employs approximately 760 employees.

·       The Complainant commenced employment with the Respondent on 24 November 2003 as an Administrator. The Complainant held the role of Customer Contact Manager with the Respondent prior to his dismissal.

·       The Complainant went on sick leave on 26 May 2022

INVESTIGATION

·       In July 2022, concerns were brought to the attention of the Respondent’s management about the procurement of vouchers by the Claimant which did not appear to have been used for their intended purposes.

·       On 18 July 2022, Mr Padraic O’Connell (Head of HR) outlined the allegations against the Claimant to the Claimant’s trade union representative Mr Eugene Murphy (Chair, Group of Unions, Gas Networks Ireland). Mr O’Connell informed Mr Murphy that he and Ms Kate Gannon (Head of Customer Care & Communications) had appointed Mr Diarmuid Collins (Head of Treasury, Risk & Commercial Finance) and Mr Brian Kirwan (Employee Relations Manager) as investigators. Mr O’Connell advised Mr Murphy that he was considering suspending the Claimant on full pay given the gravity of the issues. Having afforded the Claimant an opportunity to comment on this proposal, the suspension was confirmed.

·       On 22 July 2022, the Claimant was informed that he would be invited to an investigatory meeting in accordance with the Respondent’s Disciplinary Procedure and the R2000 Procedural Agreement. The Claimant was informed that the purpose of the meeting was to afford him a full right of reply to the allegations made against him. The Respondent noted that the Claimant’s trade union representative Mr Murphy would accompany the Claimant to the meeting once he was deemed fit to attend. The Claimant was provided with the Terms of Reference governing the investigation.

·       On 25 July 2022, the Respondent referred the Claimant to Medmark for an assessment to confirm if the Claimant was fit to participate in the investigation.

·       On 27 July 2022, the Claimant was certified as unfit to engage with the investigation.

·       On 3 August 2022, the Claimant was informed that a further medical appointment had been scheduled for him on 24 August 2022.

·       On 24 August 2022, the Claimant was certified as fit to engage with the investigation. Copies of these medical assessments are available should any dispute arise regarding the determinations made by the Occupational Health Consultants involved.

·       The Terms of Reference provided that an investigation had been established in order to determine whether the Claimant:

(a) improperly procured vouchers;

(b) improperly used the procured vouchers; and

(c) inappropriately used company assets.

·       An investigatory meeting was held with the Claimant on 8 September 2022. Mr Murphy accompanied the Claimant to the meeting. At this meeting, the Claimant admitted to having procured €3,000 worth of vouchers from One4All for the purposes of paying off a personal debt of €1,500.

·       A draft copy of the investigation report was furnished to the Claimant by email dated 4 November 2022 and the Claimant was given the opportunity to provide comments on the draft report. At page 3 of the Claimant’s submissions, the Claimant states that Mr Bernard Mooney’s transcript was only provided with the final report, meaning that the Claimant had no opportunity to comment on it at the time. As is clear from Appendix 4, Mr Mooney’s transcript and meeting notes were attached to the Respondent’s email dated 4 November. The Claimant had ten days to provide comments on the investigation report and did not provide any comments on Mr Mooney’s transcript or meeting notes. It should be noted that the Claimant also did not raise any issues regarding Mr Mooney’s transcript and meeting notes at the disciplinary hearing or the disciplinary sanction hearing.

·       The Claimant provided comments on the draft report by email dated 24 November 2022.

·       A copy of the final investigation report dated 24 November 2022, along with the appendices were available at the hearing. The report’s findings of fact were as follows: 

“6.1 The Respondent has 19 years’ service with GNI and has never been involved in a disciplinary issue.

6.2. The company is aware that he has had mental health issues in the past and is now aware of his personal issues.

6.3 During the investigation he provided intimate details relating to his mental health issues and family circumstances.

6.4. The Respondent openly accepted his involvement in this matter and is remorseful for what he did.

6.5. Prior to and since the issue came to light, the respondent commenced and continues to attend recovery support services.

6.6. The Respondent admitted to having procured €3,000 worth of vouchers from One4All for the purposes of paying off a debt of €1,500.

6.7. The respondent collected the vouchers the day prior to going on sick leave.

6.8. The respondent said he had given consideration to securing the vouchers through Fexco but realized that this could have serious consequences for the person who made available that companies credit card and did not proceed with this approach. He has asserted that it was then his intention to look to clear with his own monies.

6.9. The Respondents colleagues make numerous attempts to contact him to get clarity on the outstanding invoice from One4All for the vouchers he ordered and collected.

6.10. The Respondent made the point that a colleague he had supported during his career “went down the official route”.

6.11. The Respondent indicated on the day of investigation interview that he had been loaned funds to pay the invoice for the Gift Voucher Shop.

6.12. GNI had paid the invoice for the vouchers procured by the Respondent prior to him attending for the investigation meeting.

6.13. The Respondent sought and was sent details of a Bank Account to which he could make this payment. He has since indicated that he will do this should he receive funds from the Credit Union and if this is not forthcoming he has attached an outline of his current financial situation and a proposal for repayment of the €3,000. This was appended to his response (24 November 2022) to the Draft Report.”

·       The report concluded that the Respondent admitted to “improperly using his position and relationship with the supplier to secure the vouchers and used these to pay of a personal debt.”

DISCIPLINARY PROCESS

·       On 29 November 2022, Mr O’Connell sent the final investigation report to the Claimant and informed the Claimant that he (along with Ms Gannon) had determined, based on  the facts of the report, that disciplinary procedures be invoked. Mr O’Connell invited the Claimant to a disciplinary meeting on 6 December 2022 and informed him of his right to be accompanied by a colleague, staff member or trade union representative.

·       A disciplinary meeting was held on 6 December 2022 and was attended by the Claimant, Mr Murphy, Mr O’Connell, Ms Gannon and Ms Theresa Martin (HR Business Partner).

·       On 13 December 2022, Mr O’Connell informed Mr Cathal Marley (CEO) that a disciplinary process had been completed in respect of an employee. Mr O’Connell stated that the facts of the case, and an admission from the employee, had led him and Ms Gannon to conclude that the recommended sanction should be dismissal. Mr O’Connell noted that R2000 Procedural Agreement stipulates that decisions to dismiss can only be made by the CEO or his deputy and asked Mr Marley to confirm who he wished the decision maker to be in these circumstances.

·       Mr Marley confirmed that he wished Mr Denis O’Sullivan (COO) to be the disciplinary decision maker.

·       On 14 December 2022, Mr O’Connell informed Mr O’Sullivan that he had been appointed as the decision maker in a disciplinary process.

·       By letter dated 14 December 2022, Mr O’Connell summarised the issues and the mitigating factors arising and informed the Claimant that Mr O’Sullivan had been appointed as the sanction decision maker.

·       At page 3 of the Claimant’s submission, the Claimant stated that the minutes from the disciplinary hearing “do not seem to have been circulated to Mr. Seery”. It should be noted that the minutes of this meeting were circulated to the Claimant by email dated 14 December 2022.

·       By letter dated 21 December 2022, Mr O’Sullivan invited the Claimant to a disciplinary sanction meeting scheduled for 11 January 2023. Mr O’Sullivan informed the Claimant of his right to be accompanied.

·       By email dated 21 December 2022, Mr Murphy (on behalf of the Claimant) denied that the Claimant was guilty of theft or the misappropriation of the Respondent’s funds. Mr Murphy argued that the Claimant had ordered vouchers from One4All in his own personal capacity and that the issue of gross misconduct could not stand where the issue was between the Claimant and One4All. Mr Murphy sought responses to questions regarding why the Respondent had paid the monies outstanding to One4All when the invoice was made out to the Claimant, not the Respondent.

·       A disciplinary sanction meeting was held on 11 January 2023. The Claimant was accompanied by Mr Murphy and Mr Willie Noone (Group of Unions, Gas Networks Ireland). Mr O’Sullivan informed the Claimant that this meeting was an opportunity for the Claimant to provide any information which he felt might be relevant. Mr O’Sullivan informed the Claimant that he would take anything said at this meeting into consideration when making his decision. Mr O’Sullivan advised the Claimant that he would inform the Claimant of his decision in writing in approximately one week and advised the Claimant that he would have the right to appeal the decision to Ms Nicola McSweeney (Director of People).

·       On 12 January 2023, Mr Murphy informed Mr O’Sullivan that he wished to raise points which he felt would have been insensitive to mention at the disciplinary sanction meeting

·       On 20 January 2023, Mr O’Sullivan informed the Claimant that his behaviour met the standard of gross misconduct and that the appropriate sanction was dismissal. Relevant extracts from this letter are as follows:

“I have reflected on all the matters put forward at our meeting. I have no doubt that you are now remorseful in respect of your actions and that this entire situation has taken its toll on you personally and professionally. Having said that, I have no doubt that your behaviour was entirely unacceptable. In engaging in such conduct, I believe you had no regard for the Company’s policies, procedures and culture. In fact, these behaviours demonstrate a level of contempt for the Company and the autonomy and trust that we have vested in you and your colleagues. The trust and confidence that must exist between employer and employee have been irreparably damaged in my view.

I am aware that you have 20 years’ service and have, up to now, an unblemished disciplinary record. I have given lengthy consideration to your mitigation submission on your state of mind at the time due to personal financial pressures and the breakup of your marriage. I have also given due consideration to submissions made on your behalf by your trade union representatives. However, given the ample length of time from when you initially decided to commit fraud to when you were presented with the allegations and admitted wrongdoing, I do not believe the mitigations can have a meaningful impact on the gravity of the issues presented to me.”

…

“This decision has been extremely difficult for me to arrive at. I can assure you that I have considered all potential sanctions available to me and it is with reluctance that I have reached the decision I have. You have the right to appeal my decision within 10 working days of today’s date (on or before 3rd February). Any such appeal should set out the grounds for the appeal and be made in writing to Ms Nicola McSweeney, Director of People, Gas Networks Ireland, (nicola.mcsweeney@gasnetworks.ie). Should no appeal be received then your dismissal will be effective as at 5.00pm on 3rd February 2023.”

APPEAL 

·       By email dated 2 February 2023, Mr Murphy (on behalf of the Claimant) appealed the disciplinary decision. A copy of this email is contained at Appendix 19. By email dated 15 February 2023, Ms McSweeney invited the Claimant to an appeal meeting.

·       An appeal meeting was held on 23 February 2023. The Claimant was accompanied by Mr Murphy and Mr Shane Dollard (Ervia Group of Unions, Gas Networks Ireland).

·       By letter dated 3 March 2023, Ms McSweeney summarised the issues and the mitigating factors and confirmed that Mr O’Sullivan’s decision would stand. Ms McSweeney informed the Claimant that his employment was terminated with effect from 3 March 2023.

·       On 27 March 2023, the Claimant sent an email to Ms McSweeney, Mr O’Sullivan, Mr O’Connell and Ms Gannon requesting a written statement of the reasons for his dismissal.

·       On 31 March 2023, Ms McSweeney informed the Claimant that the disciplinary process was now concluded and would not be revisited internally. Ms McSweeney informed the Claimant that the Respondent’s Disciplinary Policy and the R2000 Procedural Agreement provided that in the event an employee is not satisfied with the outcome of an appeal process, they may refer the matter to the WRC. Ms McSweeney requested that pending any such appeal, the Claimant cease corresponding with the Respondent regarding the disciplinary process and advised him to engage with his advisors or the WRC to understand his rights of appeal.

SUBMISSIONS OF THE RESPONDENT

·       Section 6 of the Acts states:

“(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.”

·       The Claimant’s dismissal resulted wholly from the aforesaid conduct, namely improperly using his position and relationship with a supplier to secure vouchers and using these vouchers to pay a personal debt, and that is a fair reason under the Acts. This conduct resulted in a disciplinary sanction of dismissal on 3 March 2023. This sanction was determined and issued in accordance with the terms of the Respondent’s Disciplinary Procedure.

·       The basic core of recognised categories of misconduct derives from the duties of employees which the common law applies in the contract of employment. For instance, the duty of mutual trust and confidence, duty of care, duty of honesty, duty of obedience to lawful orders and duty of faithful service. If an employee breaks any of these, this may be viewed as a breach of an essential contractual condition.

·       Section 6(7) of the Acts provides that in determining whether a dismissal is an unfair dismissal, regard may be had, if the WRC considers it appropriate, to the “reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal”.

·       The Adjudication Officer must determine whether it was reasonable for the Respondent to consider the Claimant’s conduct being conduct that may justify dismissal. In JVC Europe Ltd v Panisi [2011] IEHC 2791, Charleton J held that:

“[t]he issue for the tribunal deciding the matter will be whether the circumstances proven to found the dismissal were such that a reasonable employer would have concluded that there was misconduct and that such misconduct constituted substantial grounds to justify the dismissal.”

·       In Hennessy v Read & Write Shop Ltd (UD 192/1978) , the Employment Appeals Tribunal considered that the test of ‘reasonableness’ has two elements:

(a) a procedural element – i.e. did the Respondent act reasonably in following fair procedures prior to making the decision to dismiss?; and

(b) a substantive element – i.e. was the conclusion reached by the Respondent, following those procedures, reasonable?

·       The Respondent submits that it acted reasonably in following fair procedures prior to making the decision to dismiss and that the conclusion reached by the Respondent following those procedures was reasonable and well within the band of responses open to a reasonable employer. Both of these elements will be considered in turn.

Did the Respondent act reasonably in following fair procedures prior to making the decision to dismiss?

(a) As is clear from the procedure undertaken by the Respondent (outlined above), the Respondent acted reasonably at all times and ensured that fair procedures and natural justice were afforded to the Claimant throughout the investigation, disciplinary process and appeal. The Respondent acted in accordance with its Disciplinary Procedure, which the Claimant was provided with a copy of at the outset of the process.

(b) Without prejudice to the foregoing, it is submitted that if the Adjudication Officer identifies any flaws in the procedure 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.

(c) It is a well-established principle that fair procedures do not equate to perfect procedures. In International Fishing Vessels Ltd v Minister for Marine (No.2) [1991] 2 IR 93 ,McCarthy J for the Supreme Court stated that:

“[n]either natural justice nor constitutional justice requires perfect or the best possible justice; it requires reasonable fairness in all of the circumstances; often it is a matter of impression as to whether or not there was unfairness.”

(d) The Adjudication Officer is also referred to Loftus and Healy v An Bord Telecom [1987] IEHC 40. In this case, the High Court held that it was not a question of whether the employees in that case 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.”

(e) Furthermore, the Respondent relies on the decision of the WRC in A Senior Men’s Clothing Salesman v A Clothes Retailer (ADJ-00016285):

“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.”

 (f) The requirements of natural and constitutional justice do not hold a decision maker to unreasonable standards of ‘perfect’ procedural fairness, rather what is required is that the procedures are, when viewed in the whole, reasonably fair in all of the circumstances. It is submitted that the procedures followed by the Respondent in this case meet this standard of “reasonable fairness in all of the circumstances”. The Claimant was:

(i) notified of the allegations against him;

(ii) advised that if the allegations against him were upheld, dismissal could be a possible disciplinary outcome.

(iii) afforded an investigation meeting, at which he was entitled to be accompanied.

(iv) given ample opportunity to respond to the allegations and to note any circumstances mitigating the allegations against him;

(v) afforded a disciplinary meeting, at which he was entitled to be accompanied; and

(vi) afforded and availed of the opportunity of an internal appeal, at which he was entitled to be accompanied.

(g) The three different stages (investigation, disciplinary and appeal) were conducted by different persons within the Respondent’s organisation.

(h) While there were delays in progressing the investigation, the Claimant was determined medically unfit to participate in the investigation until 24 August 2022. The Respondent progressed the investigation as far as it could by meeting with other witnesses.

Was the conclusion reached by the Respondent, following those procedures, reasonable?

(a) It is well established that in considering whether the Respondent’s decision was reasonable or not, it is not the role of the WRC to step into the place of the employer and determine what it would have done had it been faced with the facts in this case. The test is whether the facts as known to the employer were such that dismissal was within the ‘band of reasonable responses’ open to the employer.

(b) The key case in this regard is Allied Irish Banks v Purcell [2012] 23 ELR 1893 , in which Linnane J set out the relevant test for determining if an employer’s disciplinary decision is ‘reasonable’ as follows:

“Reference is made to the decision of the Court of appeal in British Leyland UK Ltd v. Swift and the following statement of Lord Denning MR . .

‘The correct test is: was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonable 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’. 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 employers 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.”

(c) This judgment was cited with approval by the High Court in The Governor and Company of the Bank of Ireland v James Reilly [2015] IEHC 2414 . In that case Noonan J stated:

“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…” (Emphasis added).

(d) The test to be applied in determining whether the sanction was reasonable was set out by the Employment Appeals Tribunal in Noritake (Ireland) Limited v Kenna (UD88/1983)  where the Tribunal considered the matter in the light of three questions:

(i) Did the company believe that the employee mis-conducted himself as alleged? If so:

(ii) Did the company have reasonable grounds to sustain that belief? If so:

(iii) Was the penalty of dismissal proportionate to the alleged misconduct?

(e) The decision of the Adjudication Officer in Receptionist v A Hotel (ADJ - 00025649) is instructive as it has a somewhat similar fact pattern to the current case. In that case, the Adjudication Officer held as follows:

“The Complainant’s admission to the misappropriation of the gratuity provides, in my view, more than sufficient grounds on which the Respondent could claim to have satisfied three elements of the test”

Applying this reasoning to the current case, the fact that the Claimant admitted to procuring vouchers to pay off a personal debt satisfies the above three questions.

(f) The Adjudication Officer in Receptionist went on to state as follows:

“It is clear from the evidence adduced that the Complainant concluded that, as the €50 tip, in this case, was not hotel property or the profit of sales/services by the hotel or was not the personal property of guests/colleagues, his appropriation of it, for his personal use, did not constitute theft. I find the Complainant’s contention in this regard to be devoid of any validity or credibility. In addition, I find that the Complainant’s views, as to what might or might not constitute theft, add significant weight to the Respondent’s conclusion that the bond of trust, which forms a core element of any contract of employment, had been irrevocably broken in this case.”

Applying this reasoning to the current case, the Claimant’s contention that there was no misappropriation or theft due to the fact that the invoices were issued to the Claimant lacks credibility. It is the Respondent’s contention that the Claimant used his role and relationship with One4All to procure the vouchers and that One4All would not have supplied the vouchers without payment upfront had he used his personal email address. It is submitted that Mr Murphy’s statement regarding what does not constitute theft and misappropriation adds significant weight to the Respondent’s conclusion that the bond of trust and confidence has been irrevocably broken.

(g) The Respondent submits that its decision to dismiss the Claimant was a reasonable, proportionate and appropriate response. The Respondent based the decision to terminate the Claimant’s employment on his own admissions during an investigatory and disciplinary process of procuring vouchers to pay a personal debt.

(h) The Respondent was entitled to take a very serious view of the Claimant’s conduct. The Claimant was given a level of freedom and autonomy to carry out his duties and he clearly breached the trust the Respondent had placed in him.

(i) The Claimant’s misconduct was serious and inexcusable and ultimately resulted in the irretrievable breakdown in the Respondent’s trust and confidence in him, to the extent that dismissal was the only appropriate option.

(j) The Respondent does not accept that the decision to dismiss the Claimant was in any way disproportionate. Having completed a thorough investigation and very carefully considering the information available, the Respondent concluded that the actions of the Claimant constituted behaviour amounting to gross misconduct.

LOSS

Forms of redress

(a) Based on the WRC Complaint Form, the Claimant has selected re-instatement, re-engagement and compensation as the forms of redress sought.

(b) It is the Respondent’s position, as per the above submissions, that the Claimant was not unfairly dismissed. However, strictly without prejudice to that position, if the WRC was to find that the Claimant was in fact unfairly dismissed it is submitted that re-instatement or re-engagement are not suitable remedies and that the only suitable remedy could be compensation. It is submitted that the trust and confidence required to ground the employment relationship has been irretrievably broken. The Respondent does not have any trust or confidence in the Claimant and evidence will be given on behalf of the Respondent in relation to same at the hearing of this case.

(c) The Respondent relies on the Labour Court decision in MPSTOR Limited v Oppermann (UDD2133) where the Court held:

“The Court has reviewed all the caselaw submitted in coming to this determination. In this case the Respondent has expressed its total opposition on a number of grounds to re-instatement or re-engagement, a factor that was 14 not present in the Rapple or Ferenka cases citied earlier. The Court notes that a thread running through the caselaw is the Court must consider the needs of the employer as well as the needs of the employee. The caselaw also highlights the importance of hearing both parties on this issue notwithstanding the fact that the Court has full discretion on the form of redress a set out in the Act it shall award. Other factors identified by the caselaw that need to be considered are the to the position that the employee held within the company i.e if they were in a senior position, the reluctance to compel an employer to continue a relationship, whether mutual trust still exists, and whether the remedy will do justice between the parties.” (Emphasis added).

(d) The Respondent wholly rejects that the Claimant was unfairly dismissed, but without prejudice to this position, should the WRC find that the Claimant was unfairly dismissed, compensation would be the only suitable remedy. The MPSTOR Limited case highlights the requirement of the Court to consider both the needs of the employer and the employee and to take account of factors such as the reluctance to compel an employer to continue a relationship, whether mutual trust still exists and whether the remedy will do justice between the parties. The Respondent considers that the trust and confidence between it as employer and the Claimant as employee is irreparably broken and that any decision to re-instate or re-engage the Claimant would be unworkable.

Mitigation of loss

(a) A statutory responsibility falls on the Claimant to mitigate his loss. Under section 7(2)(c) of the Acts, in determining the amount of compensation payable, regard shall be had to “the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid”.

(b) The Claimant’s employment was terminated on 3 March 2023. As of the date of the WRC Complaint Form, he stated that he had not obtained further employment. By letter dated 22 November 2023 on behalf of the Respondent from Arthur Cox LLP to the Claimant’s representative, the Claimant was requested to provide in full the particulars of any loss he incurred. The Claimant never provided a response to this request.

(c) In Sheehan v Continental Administration Co Ltd (UD858/1999), the Employment Appeals Tribunal stated:

“[A] claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work. It is not enough to inform agencies that you are available for work nor merely to post an application to various companies seeking work. The time that a claimant finds on his hands  is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss.”

(d) In A Kitchen Porter v A Takeaway (ADJ-00016112) noting the EAT decision in Sheehan, the Adjudication Officer pointed out that there is a legal duty on employees to mitigate financial loss by taking diligent steps to secure comparable alternative employment.

(e) It is submitted that the Claimant has failed to provide evidence that he properly and appropriately attempted to mitigate his alleged loss despite being requested in writing to provide such information.

(f) In the case of St Colmcille’s (Kells) Credit Union Limited v Patrick Leneghan (UD1952) the Labour Court on appeal reduced the award of an unfairly dismissed employee from €25,500 to €12,750 partly due to the fact that the employee had “failed to produce credible evidence to the Court that he has made sufficiently rigorous attempts to mitigate his loss in the period between his dismissal and the date of the within hearing”.

CONCLUSIONS

The Adjudication Officer is respectfully requested to reject the Claimant’s claim. In summary and for the reasons outlined above:

(a) The Claimant’s conduct constituted gross misconduct warranting dismissal;

(b) The procedures followed by the Respondent in arriving at its decision were fair, reasonable and appropriate; and

(c) The Respondent’s decision to dismiss was within the band of reasonable responses open to it in response to the Claimant’s conduct.

In Redmond on Dismissal Law (Third Edition by Desmond Ryan, Bloomsbury Publishing) the subject of Dishonesty features on page 352 and basically reads as follows:

[16.10] Dishonesty, no less than ‘misconduct’ is not a term of art. The phrase covers a multitude of activities, from wrongs which are criminal in character, such as theft, embezzlement, industrial espionage and falsification of company records, to wrongs comprising untruths, misleading statements and so on. An act of dishonesty ruptures trust. The UK EAT takes a two-stage approach to dishonesty. First, it must be decided whether according to the ordinary standards of reasonable and honest people what was done was dishonest. If so, then second, consideration must be given to whether the person concerned must have realised that what he or she was doing was by those standards dishonest.

[16.11] It is not for the employer, nor the WRC, to establish the guilt or innocence of the employee. The WRC will look to see whether there are reasonable grounds to sustain the employer’s suspicion that an employee has acted dishonestly. There is no question of establishing means rea. In Looney and Co Ltd v LooneyUD 843 / 1984 the EAT summarised as follows:

‘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 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 decision are to be judged.

[16.13] A blemish-free record in the past, or long service, are unlikely to render a dismissal for dishonesty unfair, as it is regarded as a serious infraction. It may not be relevant in judging the employer’s decision that an employee has not personally gained from his behaviour or that there is no proof that an employee has personally gained from the dishonestly. Equally it need not be the employer who suffers; it could be a customer or supplier which is affected by the employee’s dishonesty. Although trust must be regarded as integral to all employer/employee relationships, sometimes an employee is described as belonging to a ‘high trust’ category, as in Hevey v Dublin Port & Docks BoardUD 161 /1978 where the claimant was dismissed for taking six tins of fruit. However, ‘high trust’ should be expected from all employees; one cannot differentiate between degrees of trust.

In the instant case I note a paragraph from the Disciplinary Outcome letter issued by Mr Denis O’Sullivan on 20th January 2023:

I have reflected on all matters put forward at our meeting. I have no doubt that you are now remorseful in respect of your actions and that this entire situation has taken its toll on you personally and professionally. Having said that, I have no doubt that your behaviour was entirely unacceptable. In engaging in such conduct, I believe you have had no regard for the Company’s policies, procedures and culture. In fact, these behaviours demonstrate a level of contempt for the company and the autonomy and trust that we have vested in you and your colleagues. The trust and confidence that must exist between employer and employee have been irreparably damaged in my view.

I am unable to disagree with any of the thinking of Mr O’Sullivan.

In conclusion I find that the complaint as presented under section 8 of the Unfair Dismissals Act, 1977 is not well founded.

In conclusion I find that the complaint as presented under section 8 of the Unfair Dismissals Act, 1977 is not well founded.

Unfair Dismissals Act 1977