Complainant

Respondent

Parties

Sean  Corrigan

Terra Water Systems Ltd t/a Terra Nutritech

Representatives

  Self-represented

 Self-represented

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-00068703-001

19/01/2025

The Complainant commenced employment with the Respondent in November 2022 as a Customer Relationship Manager.  He was dismissed by the Respondent for gross misconduct on the 17th of December 2024.  The Complainant contends his dismissal was substantively and procedurally unfair.  The Respondent submits the Complainant was dismissed for gross misconduct following a fair investigation and disciplinary process. 

The Complainant relied on his complaint form and written submission to the WRC.  He also gave an overview of his complaint by way of sworn oral testimony.  The Complainant was employed to deliver minerals to farms.  He was assigned a daily route.  He was required to record the delivery via two methods: a handwritten delivery docket and inputting the delivery on an electronic recording data app (ERP).  The Complainant also worked on the family farm part-time.  This was known to his employer and presented no issues.  In 2024 the Complainant experienced several personal issues concerning family matters and the farm.  This impacted on his job insofar as when he made a delivery, he struggled to complete the delivery dockets.  However, every delivery was recorded on the ERP.  The app has the same information as a delivery docket, and the office can see details of all deliveries from the app.  The Complainant outlined that he has dyslexia.  He meant to complete the delivery dockets when he got time but it snow-balled and got to a point where a significant number of delivery dockets were not completed for several months.  The Complainant outlined that he had every intention of completing the dockets, but it got out of hand.  He meant no harm to the Respondent.

On the 12th of December 2024 the Complainant received a call from Padraig Hennessy asking him to return to the office immediately.  He was called into a meeting with Mr Hennessy and Mr O’Donnell.  The Complainant was asked why he had failed to complete delivery dockets.  The Complainant apologised and explained the difficult personal circumstances he had been experiencing and the impact of same on his mental health.  He accepted that it was his responsibility to complete the dockets and that he had let this slip.  The Complainant was suspended at the end of this meeting pending an investigation.  He was asked to leave his company vehicle, and he was told the Respondent would be in touch regarding the outcome of the investigation. 

On the 16th of December 2024, Mr Hennessy emailed the Complainant to advise that the investigation was complete and that the Complainant was required to attend a formal disciplinary meeting the following morning.  In the email the Complainant was advised that formal disciplinary action, including dismissal, may be an outcome of the meeting.  He was advised he could be represented at the meeting.

The Complainant attended the disciplinary hearing the following morning without representation.  The meeting was conducted by Mr Hennessy and Mr O’Donnell.  The Complainant was asked again why he failed to complete the delivery dockets.  The Complainant gave the same reasons as on the 12th of December 2024, which included issues he was facing at home which were impacting greatly on his mental health, and health concerns he had for a named family member.  The Complainant is a father to four small children and the primary earner in the household.  He reiterated his regret and that he meant no malice to the Respondent.  Mr Hennessy and Mr O’Donnell then left the room to deliberate on their decision.  They returned 2 minutes later and advised the Complainant that they had no other option but to dismiss him with immediate effect.  They told the Complainant that he should have come to them sooner when he was experiencing these difficulties.  They also outlined the potential ramifications for the business regarding traceability and Bord Bia.  The Complainant was told that the potential loss to the business because of his failure to complete the dockets was €138,600.15, and that the affected farmers were annoyed and did not want the Complainant back on their property. 

The Complainant received a ‘Termination Notice’ by email later the same day.  In this notice he was advised that he had a right to appeal the decision to dismiss him within 14 days.  On the 27th of December 2024 the Complainant sent a handwritten letter appealing his dismissal.  He posted the letter of appeal to the address of the Respondent.  However, he did not receive an acknowledgement to that letter.  The Complainant outlined that he was surprised to see on the 23rd of December 2024 the role of “Agricultural Operations and Support Technician” being advertised by the Respondent.  The duties listed were the entirety of the duties performed by the Complainant.

On the 19th of January 2025 the Complainant referred a complaint of unfair dismissal to the WRC.  The Complainant outlined to the hearing that he felt his dismissal was substantively and procedurally unfair.  He was not given 24 hours’ notice of the first meeting on the 12th of December 2024, and he was not informed of its purpose prior to the meeting taking place.  He was not offered representation at this meeting.  He was not given 24 hours’ notice of the commencement of the investigation.  The Respondent did not fully adhere to the terms of the Company Disciplinary Procedure.  He was not issued with a letter of concern as per the policy, and the matter should have been dealt with by his supervisor and manager instead of senior management.  The same managers were involved in the meetings on the 12th and 17th of December 2024 and the investigation.  Minutes of the meetings and the outcome of the investigation were not provided to the Complainant.  The Complainant outlined that he had no previous disciplinary record and that the decision to dismiss him was disproportionate in the circumstances.  At no time over several months did administration staff ask for the dockets.  The Complainant stated he was never informed of the importance of the dockets for traceability purposes and had received no retraining since he commenced employment in 2022.  The decision to dismiss was pre-determined and there was no partial perception.  The Complainant outlined that the whole process ran at too fast a pace which did not allow for adequate thought to go into the process.  He outlined that the dismissal has had a considerable impact on him both mentally and financially, and it impacted greatly on his young family especially given the nature and the timing of the dismissal.  His reputation and character have been damaged. 

Mr Hennessy put it to the Complainant that his evidence was that he did not realise the dockets were a legal requirement, yet he had completed them for 18 months.  The Complainant responded that he knew they were required for billing, but he thought ERP was the number 1 and that it had all the details required for that purpose.  He just let the paperwork lapse, and it built up.  Mr Hennessy asked the Complainant why he did not seek help.  The Complainant responded he had other stuff going on at home, he was sorry and that he should have done so.  The Complainant was asked why he had not sought employment since his dismissal.  The Complainant confirmed he had not applied for roles as he was highly embarrassed and who would hire him after a dismissal for gross misconduct.  The Complainant accepted that he worked for the Respondent since 2022 only and not 6 years as in his written submission.  He had previously worked for 4 years for a related but separate legal entity. 

The Complainant confirmed to the Adjudication Officer that he did not follow up on his appeal letter or email Mr Hennessy to seek clarification on the appeal.  The Complainant stated that compensation was his preferred remedy.  He is not in employment since his dismissal.  He has not looked for jobs as he is trying to expand his farm.  The Complainant stated that the farm is not providing him with an income presently and he has not expanded the farm or livestock to enhance his chances of increasing an income from the farm.  The Complainant accepted creating alternative routes would be a challenge for the Respondent but that it could have been done.  He understood trust was broken but he felt it could have been rebuilt.  He was sorry for the trouble he caused but he did not realise the dockets were a legal requirement.

The Respondent is a small family business employing 13 people.  It manufactures and supplies mineral feed supplements to farmers nationally.  The Respondent is licensed by the Department of Agriculture, Food and Marine and is a member of several quality assurance schemes.  Mr Hennessy outlined to the hearing that the completion of delivery dockets at the time of each delivery is crucial to ensure the Respondent’s compliance with Department of Agriculture, Food and Marine licensing requirements.  The non-completion of delivery dockets constitutes a serious breach of the conditions necessary for the Respondent to maintain it manufacturing and supply licence for minerals.  The onus is on the Respondent to know where every batch of minerals is gone, given that minerals go into the food chain and crucially in the event of a product recall.  The completion of delivery dockets is integral to the Respondent’s traceability process as the docket records the customer details and batch number of the product delivered.  The Complainant was aware of the importance of completing dockets having been advised of same during induction and training.  Completion of dockets was also necessary for invoicing.  Farmers receiving the Respondent’s product, who are members of assurance schemes, also have a legal obligation to have the dockets available in the event of a Bord Bia audit.  The Respondent is subject to planned and unannounced audits.  Failure to adhere to licensing requirements would result in the immediate suspension of the Respondent’s licence and would have seriously jeopardised the Respondent business.  The ERP monitors stock levels, and while deliveries are recorded on this system also, it is not designed for traceability purposes as not all customers of the Respondent are logged on the ERP system, and the ERP is not yet approved by Bord Bia.

Mr Hennessy outlined to the hearing that on the morning of the 12th of December 2024 he became concerned about cashflow.  He surmised that invoices had not been paid and on looking into the matter further he discovered that some customers had not been invoiced at all for deliveries completed.  Further enquiries led Mr Hennessy to contact the Complainant to ascertain if he had dockets outstanding for submission to the accounts department.  The Complainant said he would pull over his vehicle to check and would call Mr Hennessy back.  After some time, when the Complainant had not returned the call, Mr Hennessy called him again.  This time the Complainant said he had not submitted dockets dating back to September or October.  The Complainant was asked to immediately return to the office.  Mr Hennessy outlined that at this juncture he did not know what he was dealing with in terms of the extent of the problem and whether there was any malicious intent or fraud involved.   

On the Complainant’s return to the office, he was asked to meet with Mr Hennessy and Mr O’Donnell.  The meeting was recorded.  The minutes of the meeting were opened to the hearing.  The Complainant was asked when he stopped completing the dockets and why.  The Complainant acknowledged he had stopped completing the dockets several months previously and that it was due to personal issues concerning his farm.  The Complainant accepted full responsibility and acknowledged that the completion of the dockets was not a complex task.  The Complainant was told how serious for the business his failure to complete the dockets was.  The Complainant acknowledged that he knew it was serious but that he had intended no harm to the business.  The Complainant was informed that an investigation needed to be completed to ascertain the full extent of the Complainant’s non-performance with respect to recording deliveries and the implications for the business.  Later that day, Mr Hennessy emailed the Complainant to outline that he was being placed on paid leave following the revelation that delivery dockets for mineral deliveries had not been completed since April 2024, and that a full investigation would follow to ascertain the Complainant’s role in same and to evaluate the financial and reputational impact on the company.  The findings of the investigation would inform any subsequent actions in relation to the issue.  Mr Hennessy outlined that prior to the meeting of the 12th of December 2024, the Respondent had not been made aware of any difficulties the Complainant had been experiencing or that he was dyslexic. 

It took several days to establish the extent of the non-compliance and to begin the process of contacting each of the affected customers.  The investigation established that there were 97 deliveries made which had not been invoiced due to the lack of a delivery docket.  This totalled an amount of €138,905.15 which represented a substantial sum for a small business.  Considerable time and effort went into looking at the GPS tracker and contacting the farmers to check if they had in fact received the products.  Farmers were advised that they had not been billed which gave rise to much discontentment as 2024 had been a very difficult year for farmers.  Some farmers said they would review their relationship with the company, and many stated they did not want to continue to engage with the person who was responsible for the error.    

On the 16th of December 2024 the Complainant was issued with a written invitation to a formal disciplinary meeting under the Company’s Disciplinary Procedure.  The meeting was scheduled for the following morning.  The Complainant was advised in this correspondence that the purpose of the meeting was to discuss allegations of gross misconduct and to hear any representations the Complainant may wish to make.  He was advised that he could avail of representation.  He was further advised that the meeting would be adjourned to allow the decision-makers an opportunity to consider the Complainant’s representations.  The meeting would then be re-convened to communicate the outcome to the Complainant.  The Complainant was forewarned that the outcome could range from a written warning to dismissal.

A disciplinary hearing commenced at 10am the following day.  The outcome of the investigation was put to the Complainant as follows: that from the 26th of April 2024 the Complainant did not complete delivery dockets on a consistent basis; that the Complainant failed to notify management of this or any difficulty he was experiencing in completing the dockets; that this was a serious dereliction of duty; that the failure resulted in €138,600.15 worth of invoices not being billed across 105 customers; and the potential impact of the foregoing on the reputation of the Respondent and the knock-on work for other personnel in the company.  The Complainant was informed again of the importance of the dockets for the Respondent’s licence to manufacture and supply minerals and for farmer’s own compliance requirements.  The Complainant was invited to explain why he had failed to complete the dockets.  The Complainant initially said there was no explanation for it and that it was not intentional.  He had let things slip.  He thought because he was completing the ERP that the company had all the information they needed anyway, and he did not realise the ramifications for the business.  He outlined personal issues that he was dealing with.  The meeting was then adjourned.  Mr Hennessy and Mr O’Donnell went into separate rooms, and each completed a “Disciplinary Severity Scorecard (Misconduct Related)”.  The Complainant scored 48 and 49 respectively.  A score of 45+ constitutes gross misconduct.  Mr Hennessy and Mr O’Donnell then returned 5 or 10 minutes later and advised the Complainant that they had no option but to dismiss the Complainant for gross misconduct.  They informed the Complainant that he could appeal the decision to dismiss and that neither Mr Hennessy or Mr O’Donnell would be involved in the appeals process.  This was later confirmed in writing via email to the Complainant.   Minutes of the meeting of the 17th of December 2024 were opened to the hearing.

The handwritten letter of appeal referred to by the Complainant was not received.  While the office is closed between Christmas and the New Year, post is collected. No appeal letter or any correspondence was received by the Complainant. 

The impact for the business was that it had to retrospectively complete the delivery information for nearly 8 months.  This involved several company personnel.  The Respondent could have lost the manufacturing and supply licence, jeopardising the entire operation and 13 jobs.  While some of the unpaid invoices have since been paid, a sum of €35,263.24 remains outstanding and €7,216 has been written off.  The issue has also resulted in the loss of business from 4 farms with an estimated loss of recurring income of €50,000 per annum.  In all the circumstances the decision taken by the company to dismiss the Complainant from employment was a reasonable decision.  Fair procedures were followed at all stages of the process leading to the Complainant’s dismissal.

In cross-examination, Mr Hennessy was asked why the Complainant was not presented with an investigation report.  Mr Hennessy responded that the findings of the investigation were shared with the Complainant at the outset of the disciplinary hearing, and he had admitted to the wrongdoing.  It was put to Mr Hennessy that the Complainant had not been put on notice of the formal nature of the meeting of the 12th of December 2024 and denied the right of representation at this meeting.  Mr Hennessy responded that at that stage he did not know what he was dealing with.  In response to the question of why minutes of the meetings had not been shared with the Complainant, Mr Hennessy replied that the Complainant had admitted to the wrongdoing.  Mr Hennessy was asked had the Complainant ever been told that completion of the dockets was a legal requirement and that completion of the ERP was not enough on its own.  Mr Hennessy replied: “no, but I am sure he was told at induction that they had to be done, and he had been doing them for 18 months”.  Mr Hennessy confirmed that the Complainant had no prior warnings.  Mr Hennessy was asked why the company did not follow up on missing dockets for 8 months.  Mr Hennessy replied: “no one picked up on it”.  Mr Hennessy was asked if any farmers had raised an issue regarding not receiving dockets.  Mr Hennessy replied: “no”.   It was put to Mr Hennessy that if he could retrieve all the data within 2 days from ERP, why could that system not be used for traceability purposes and why have two systems.  Mr Hennessy responded it could not be used as the Department requires a hard copy, but they hoped that it would switch to electronic recording in the future.  Mr Hennessy was asked why the Complainant was not made aware of the Disciplinary Scorecard.  Mr Hennessy responded that he did not think that had to be shared and that it was marked fairly.  In response to the question as to why HR were not involved in the process, Mr Hennessy reiterated that the HR Consultant was not available at the time.  Mr Hennessy was asked if he accepted that the Complainant had family issues at the time and that they had a duty of care to him.  Mr Hennessy responded: “yes, we accept he had family issues, we pride ourselves in working with staff, we were very flexible with Sean and his pumpkin business, he never communicated any family issues until this time.  We had to act in the best interests of the business, and we had a duty of care to the 13 others on our payroll”.  Mr Hennessy denied that he said that he did not care what was going on at home for the Complainant. Mr Hennessy acknowledged that the timing of the dismissal [Christmas] was unfortunate but that it had to be done.  

In response to questions from the Adjudication Officer, Mr Hennessy outlined that approximately 10 of the 97 farmers affected did not want the Complainant to make deliveries to their farms going forward.  There were 4 other persons employed to deliver product, and alternative delivery routes but it would be a disproportionate requirement on the Respondent to create an alternative delivery route for the Complainant to avoid these aggrieved farmers.  Mr Hennessy confirmed that the Complainant had been completing the dockets without issue until April 2024.  The person in accounts who followed up on invoicing had left the business in December 2023 and new staff joined then.  There were no checks in place for dockets/invoicing completion.  Mr Hennessy outlined that he and Mr O’Donnell were the most senior managers in the company but that their HR/legal consultant/advisor and another Director would have completed the appeals process had the Complainant exercised his right of appeal.  The Complainant’s hours of work could vary week to week.  The Respondent provided the hearing with the Complainant’s average earnings over 2023 and 2024.  This was first shared with the Complainant at the hearing, and he agreed that the figures represented his average earnings for 2023 and 2024.  Mr Hennessy stated that both he and Mr O’Donnell considered alternatives to dismissal such as a written warning during the adjournment period, but the bond of trust had been broken, and therefore the only option was dismissal.  The decision was not made lightly especially given the time of year.     

Relevant Law:

The Unfair Dismissal Acts, 1977-2015 (“the Acts”) defines “dismissal” in relation to an employee as including the termination by the 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.

Section 6(1) of the Acts provides:

“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”.

Section 6(4) of the Acts provides:

“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: . . . (b) the conduct of the employee . . . .”

In Glover v. B.L.N. Ltd. [1973] I.R. 388 Kenny J stated (at 405):

“It is impossible to define the misconduct which justifies immediate dismissal . . . What is or is not misconduct must be decided in each case . . . all one can say about serious misconduct is that it is misconduct which the court regards as being grave and deliberate . . . .” 

Section 6(7) of the Acts provides:

“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 [the procedure which the employer will observe before and for the purpose of dismissing the employee] or with the provisions of any code of practice referred to in paragraph (d) of section 7 (2) of this Act”.

In Bunyan v. United Dominions Trust (Ireland) Ltd [1982] ILRM 404, the Employment Appeals Tribunal (EAT) held that “[t]he fairness or unfairness of dismissal is to be judged by the objective standard of the way in which a reasonable employer in those circumstances and in that line of business would have behaved. The Tribunal therefore does not decide the question whether or not, on the evidence before it, the employee should be dismissed. That decision has been taken, and our function is to test such decision against what we consider the reasonable employer would have done and/or concluded” (emphasis added).  Thus, an Adjudication Officer should have regard to the reasonableness of the employer’s conduct in relation to the dismissal.  This requires a determination of the range of responses which a reasonable employer could have taken having regard to the nature of the case and then a consideration as to whether the employer’s decision lay within that range (Governor and Company of Bank of Ireland v. James Reilly [2015] IEHC 241, approved in An Bord Banistíochta Gaelscoil Moshíolog v. Labour Court [2024] IESC 38).

The range or band of reasonable responses test has been applied not only to the question of whether the suspected misconduct may have taken place but also to the reasonableness of the investigation and the reasonableness of the decision to dismiss (Iceland Frozen Foods v Jones 1983 1 ICR 17 and J Sainsbury PLC v Hitt 2003 ICR 111).  In Frizelle v New Ross Credit Union [1997] IEHC 137, Flood J stated that in cases of misconduct “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”.  In considering the proportionality of the sanction, the fact that an Adjudication Officer would have taken a different view, is not relevant (Bigaignon v. Powerteam Electrical Services Ltd [2012] 23 E.L.R. 195. 

Where a decision may adversely affect a person’s good name or livelihood, a range of procedural protections are engaged.  In Re Haughey [1971] IR 217 the Supreme Court interpreted Article 40.3 of the Irish Constitution as encompassing a guarantee of fair procedures in any proceedings where a person’s conduct is impugned. The right to fair procedures is not absolute, and the requirements of fair procedures will vary according to the circumstances of the case, however, at a minimum a person is entitled to be informed of the charge against him and to be given an opportunity to answer it and to make submissions in their defence (Mooney v. An Post [1998] 4 IR 288). 

Fair procedures is not perfect procedures (Murphy v. College Freight Ltd, UD867/2007).  The role of an Adjudication Officer is to establish if the process followed by the company conformed to the generally accepted standard of fairness and objectivity normally followed in like cases.  A central consideration is whether any purported breach of due process endangered a fair hearing or a fair result (Shortt v. Royal Liver Assurance Ltd (2008) IEHC 332.  Generally, fair procedures require that details of any allegations of wrongdoing are put to the employee concerned, the employee is given the opportunity to respond to these concerns, the employee is given an opportunity to avail of the right to be represented, and the employee is afforded a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors, and circumstances.

Section 7 (1) of the Acts provides:

“Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances:

(a) re-instatement by the employer . . . , or

(b) re-engagement by the employer . . . , or

(c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances, or (ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances . . . ” .

Section 7(2) of the Acts provides:

“Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—

(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

(b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee,

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid, 

(d) 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 subsection (1) of section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister,

(e) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14, and

(f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.”

Section 7(3) of the Acts provides:

“financial loss”, in relation to the dismissal of an employee, includes any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts, 1967 to 1973, or in relation to superannuation; “remuneration” includes allowances in the nature of pay and benefits in lieu of or in addition to pay.”

In Cavanagh v. Dunnes Stores (UD820/1994), the EAT accepted that the Complainant's decision to start his own business rather than to seek employment did not amount to a failure to mitigate his loss.

Findings:

The fact of dismissal is not in dispute and accordingly the burden of proof rests on the Respondent in this case to show that it had substantial grounds to dismiss the Complainant, that it followed fair and reasonable procedures, and that the sanction of dismissal was proportionate having regard to all the circumstances. 

It was common case the Complainant did not complete the delivery dockets for several months.  This was regarded by the Respondent as a gross dereliction of duty, constituting gross misconduct, and therefore warranting dismissal.  In relation to substantive fairness, the Respondent need only show that it’s decision to dismiss the Complainant fell within the band of reasonableness given the circumstances.  This includes consideration of factors such as the nature of the Respondent’s business; the wrongdoing and its impact or potential impact on the business; the disciplinary record of the Complainant; the length of service of the Complainant; and any mitigating factors.  It is well established that regardless of the strength of the evidence or a full admission of wrongdoing and the fairness of the disciplinary process followed, the sanction imposed must be proportionate.

I find the sanction of dismissal in this case does not come within the band of reasonable responses and is disproportionate given the circumstances.  I also find that fair procedures were not exhausted.  The reasons for my findings are set out below.

I accept the evidence of Mr Hennessy that the conduct of the Complainant in failing to complete the delivery dockets could have placed the continuation of the business and 13 other jobs in serious jeopardy.  The Complainant’s conduct did have a financial and reputational impact on the Respondent which were not insignificant especially given the size and nature of the business.  Fortunately, the non-completion of the dockets was detected and managed before it had irreparable consequences for the Respondent.  However, given the fundamental importance of these dockets, I am not satisfied the Respondent had impressed upon the Complainant the significance and importance of the completion of same.  No evidence was presented to the hearing that the Traceability Procedure (opened to the hearing by the Respondent) was shared with the Complainant.  Mr Hennessy accepted in cross-examination that the Complainant had not been told of the significance of the dockets, other than being informed at induction that they had to be done.  While I accept the Complainant had been completing the dockets without issue until April 2024 and then ceased to do so, he continued to record the deliveries on EPR which he believed was the most important record to maintain.  Further, there was no internal check by the Respondent as to whether these dockets were being consistently completed, which is most surprising given the importance of same for the Respondent’s manufacturing and supply licence.  As noted in Frizelle the decision to dismiss must be proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee.  I accept the Complainant’s submission that his dismissal left him in a precarious financial situation as the primary earner of a young family. 

I note the Respondent had a Disciplinary Procedure in place and was well versed in the general requirements of a disciplinary process.  I am satisfied the Complainant was told of the complaint that formed the basis of the proposed dismissal; he was offered the right to representation; he was given the opportunity to respond to the complaint; and, given the admission of wrongdoing, the Respondent had reasonable grounds to sustain the belief that the Complainant was responsible for the non-completion of the dockets.  The Complainant stated that Mr Hennessy and Mr O’Donnell should not have been involved in the investigation and the disciplinary hearing.  Ordinarily, I would agree that the investigation and disciplinary hearing should be completed by different persons, however, the Respondent is a small business, with a flat management structure.

While the period of adjournment following a disciplinary hearing should generally be proportionate to the matters to be considered, I am not satisfied in this case that any meaningful consideration was given to the Complainant’s submission with respect to mitigating factors.  As noted by Redmond, “[t]he concept of fairness is located within a framework which accepts that the employer has the right to dismiss where this is necessary to protect its business interests. To that extent it adopts an employer perspective. At the same time, the law requires that employers should not remorselessly pursue their own interests. The employee’s interests must be considered as well. The function of fairness is to reconcile these interests.” (Redmond on Dismissal Law, 3rd ed., Bloomsbury Professional 2017 at [13.01]).  In any disciplinary process an employee has the right to a fair and impartial determination of the issues concerned, which takes into consideration any representations made by or on behalf of the employee.  According to the Complainant the disciplinary hearing was adjourned for 2 minutes while Mr Hennessy and Mr O’Donnell deliberated on their decision.  According to Mr Hennessy, the disciplinary hearing was adjourned for 5 to 10 minutes.  Even allowing for an adjournment of 10 minutes, I am not satisfied that this period allowed for any meaningful consideration of the representations made by the Complainant in relation to the personal difficulties he was facing at the time, or indeed that any meaningful engagement took place with the ‘criterion’ listed within the Respondent’s ‘Disciplinary Severity Scorecard’.   I note that the scorecard includes mitigating factors as a criterion and that both Mr Hennessy and Mr O’Donnell scored this criterion 2 out of 5.  Mr Hennessy wrote for this criterion that there were “no personal issues communicated prior to the issue”.  While that was not disputed, I am satisfied that no real consideration was given to the representations made by the Complainant after the issue came to light i.e., the reasons he gave at the meetings on the 12th and 17th of December 2024 for ceasing to complete the dockets.  Further, in response to my question as to whether consideration was given to alternatives to dismissal, Mr Hennessy responded that during the 10-minute recess, he and Mr O’Donnell discussed alternatives to dismissal and specifically a final written warning.  Mr Hennessy’s evidence was that both Director’s completed separate scorecards in their respective offices.  Having looked at the detail to complete on the scorecard, and the duration of the adjournment, I cannot conclude that any meaningful discussion took place in relation to alternatives to dismissal.  Therefore, it is difficult to disagree with the Complainant’s submission that the disciplinary process ran at too fast a pace and did not allow for adequate contemplation.   

The Complainant was given 14 days to appeal.  The Complainant’s evidence was that on the 27th of December 2024 he appealed the decision to dismiss him in writing by way of letter as outlined in the ‘Termination Notice’.  I note the Termination Notice required the appeal letter to be addressed to the company address as set out in the Notice.  The Respondent contends that it did not receive this post.  On balance I am satisfied the Complainant did appeal his dismissal in the manner prescribed.  Of significance is the Complainant’s uncontested evidence that his job was advertised on the 23rd of December 2024: 7 days into the 14-day appeal period.  It is difficult to avoid the conclusion that whether notice of an appeal was received or not, the two most senior directors in the Company had already made up their minds about the Complainant’s future with the Respondent and that there would be no going back on that decision. 

In conclusion, for the reasons set out above, I find the decision to dismiss fell outside the range of reasonable responses of a reasonable employer such to render the dismissal of the Complainant unfair. 

As provided for at s 7(1) of the Acts, where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of reinstatement, reengagement or compensation.  Having considered all the circumstances in this case, including whether reinstatement or engagement would be appropriate and the submissions of both parties in that regard, I am satisfied that compensation is the most appropriate form of redress. 

Compensation is based on an employee’s remuneration and financial loss.  The Complainant’s hours of work varied from week to week.  The Complainant’s earnings for 2023 and 2024 were opened to the hearing by the Respondent.  These figures were accepted by the Complainant.  I estimate the average gross weekly amount of remuneration paid to the Complainant was €720.11 (calculated in accordance with S.I. No. 287/1977 - Unfair Dismissals (Calculation of Weekly Remuneration) Regulations, 1977.

Where financial loss is incurred because of the dismissal, the employee is entitled to be compensated for that loss (actual and prospective), as is just and equitable having regard to all the circumstances but not exceeding 104 weeks remuneration. 

Section 7(2) of the Acts provides that in determining the amount of compensation payable I must have regard to the matters outlined at (a) to (f) of that section.  The Complainant accepted that it was his responsibility to complete the dockets.  In failing to do so for several months, the Complainant contributed to his own dismissal.  Regard must also be had to the measures adopted by the Complainant or, as the case may be, his failure to adopt measures, to mitigate his loss.  The Complainant told the hearing that he did not seek alternative employment after his dismissal, nor does he intend to.  Rather, he continues to farm, as he was doing (albeit part-time) while in the Respondent’s employment.  The fact that the Complainant now wants to farm full-time rather than seek alternative employment should not be regarded as a failure to mitigate loss.  At the time of the hearing, the Complainant was not yet receiving an income from the farm.  While I can appreciate that it takes time to expand a farm and generate income comparable to that earned while in the Respondent’s employment, the Complainant could not say how long it would take to generate an income from an already established farm.  Further, no evidence was presented at the hearing to satisfy me that the Complainant is taking any steps to increase the chances of this happening in the foreseeable future.  The duty on the Complainant to mitigate his actual and prospective financial loss requires effective action that either reduces that loss due to his dismissal or is reasonably likely to do so. 

Considering the foregoing and having regard to all the circumstances in this case, I find it is just and equitable to direct the Respondent to pay to the Complainant the amount of €11,520 as compensation for his unfair dismissal. 

I decide the Complainant was unfairly dismissed and the Respondent shall pay to the Complainant compensation of €11,520.

Unfair dismissal.  Gross Misconduct.