ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00054463

Parties:

Complaint:

Date of Adjudication Hearing:  05/02/2026

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015  and/or Section 8 of the Unfair Dismissals Acts, 1977 - 2015,  following the referral of the complaint  to me by the Director General, I inquired into the complaint  and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The complaint is that the Complainant was unfairly dismissed from his employment on grounds of gross misconduct.

Summary of Complainant’s Case:

The Complainant gave sworn evidence and made a written submission, summarised as follows:

He believes his dismissal was predetermined as he was due to receive a new work phone which was slow in coming and when he rang the IT contractors about it, it was reported to him that his technical manager had said that he “wouldn't be needing it” and this before he had received any notice of the initiation of any such process he attended the full process as requested up to and including the post dismissal appeal. He made a number of points about the working time directives at European and Irish levels  and he stated that the crux of this is one evening after working another 60 hour week the Toyota jeep he had its battery was flat again, he managed to jump start it at home and let it run to charge up the battery and when he went to turn it off he thought “they don’t care about how many hours I'm doing why should I care about how much fuel is used…”   so he walked away and just left the jeep running, he had previously worked in Canada and seen and operated all types of vehicles and let them run for months at a time in perfect safety.

He made further points about reading policies and guidelines and that the jeep was his personal vehicle and reported to The Revenue Commissioners as such and the company deducted full BIK and in addition the vehicle policy stated the fuel card was for “personal use” without qualification or reference, a poor choice of words on the company’s behalf but their choice of words none the less.

He subsequently sought legal opinion on the vehicle policy to confirm and the opinion was it was an egregiously bad policy with no limit or restriction or reference and it would be literally impossible to breach.

He stated “As the disciplinary process continued, he was aware of its predetermined opinion (and outcome) The Toyota was taken away for assessment but there was no plan for its return, no advice or detail offered, indeed it was eventually recounted that Toyota were finished with their assessment and all was well but it wasn’t returned and no sanction had been applied to me then, quite unusual. This however was not actually a surprise to me as I was on good terms with a service manager and they recounted that it was due to be returned to the lease company. It was never coming back. The ultimate reason given for my dismissal was based on the reasonable use of company resources but the legal opinion I received was upon stating the fuel card was for personal use the company voluntarily relinquished it as a resource and as such subject to any oversight. All the above gives you a shape on how we got here.  

At the very outset of the disciplinary process, I stated our excess working hours and emailed the HR manager a list of times and hours showing such to which that was initially acknowledged (in their report) but subsequently ignored. I further detailed my frustration at the years and years and years of 60 hour weeks as being the root of the situation. I have detailed records, times and locations but the onus to record rests with the employer. At that initial point the HR manager should have recused themselves as their failure to log working hours accurately is a criminal offence in each instance for each employee multiplied by 10 shotfirers by 3 years. Their continued involvement prejudices the entire process and renders it unfair irrespective of the outcome. They should have recused themselves and reinitiated the entire process with an outside independent HR consultancy, that had no previous dealings with Kemek / Irish Industrial Explosives”.

The Complainant made some critical comments about the Company and stated:

“I found it very hard to seek gainful employment after being dismissed, even in unrelated roles, after successful initial contact and interviews employers went cold”.   He alleged that like he was being “Black Listed”.

He stated that he had to rely on social welfare and ran up significant debt. “This entire situation will cost me conservatively €500,000 over my working life going forward, and I will have given €200,000 in unremunerated overtime to the company during my time there. There are many many excellent people at Kemek / Irish Industrial Explosives but sometimes there are entrenched opinions and unsafe working practices and the only way to solve this is to put something on the record like this today or levy the maximum fine”.

In his cross examination of the witnesses for the Respondent, the Complainant emphasised a number of points including definition of “reasonable use”, and Revenue Commissioner issues related to BIK (benefit-in-kind).

Summary of Respondent’s Case:

The Complainant was dismissed from his employment with the Respondent for gross misconduct, following a thorough process, undertaken by the Respondent to ensure maximum fairness and transparency was afforded to the Complainant, in accordance with fair procedures and natural justice. The Respondent refutes this claim of unfair dismissal in its entirety.

The Complainant commenced employment with the Respondent on 1 April 2019 as Graduate Technical Service Engineer further to the contract of employment dated 12 March 2019.  He was dismissed on 5 April 2024.  1 On 1 April 2019, the Complainant commenced his role with the Respondent company as a Graduate Technical Service Engineer. His role entailed travelling directly to customer, supplier, and other business-related sites in the surrounding area, from his home. 

Beginning in 2022, the Respondent noticed that the Complainant’s fuel consumption was significantly higher than other Technical Service Engineers. The Technical Service Manager, Mr.K had an informal discussion with the Complainant regarding his fuel consumption. This was further highlighted during a Carbon Emissions Survey the company conducted in 2023. The Respondent noticed that the fuel consumption for the Complainant’s company vehicle was still significantly higher than other Technical Service Engineers.  On 11 March 2024, the Respondent sent a letter to the Complainant inviting him to an investigation meeting with Mr. K, and Mrs. S, the HR Manager. The purpose of the meeting was outlined in the letter. The purpose was to discuss the ‘refusal to record mileage’ and his ‘fuel usage.’

On the 13 March 2024, the Complainant met with Mr. K and Mrs. S, who acted as the investigation officer. The Complainant was accompanied by Mr. N, his union representative. During this investigation meeting, the Complainant’s refusal to log milage and his overall fuel consumption was discussed.  During the meeting, the Complainant was given 3 reports to consider.  These demonstrated that he was the highest user of fuel since 2022. His fuel consumption was:

• 37% higher than the average Technical Service (TS) user in 2022.
• 52% higher than the average TS user in 2023.
• 95% higher than the average TS user in YTD February 2024 filling the vehicle 126% more than other users.

Further investigation showed:

The average fuel usage between March and September in 2023 for the Technical Service team using the same vehicle was 4060 litres and average kilometres driven was 41,613. • The Complainant’s kilometres were only 7% ahead of the average however his was fuel usage was 32% higher than the average.

• The expected average fuel usage on a Toyota Landcruiser was approximately 9.4 litres per 100km, which the Complainant was informed of. The average technical service engineer was 9.77 litres per 100km, whereas the Complainants’ usage was 12 litres per 100km.

The Complainant was using 135% more fuel than the average user.

The Complainant agreed to start logging his business mileage immediately. In response to the overall fuel consumption, the Complainant claimed that he was unsure why his fuel consumption was so high. However, he gave several possible reasons why including: driving with lower pressure tyres, being a ‘hard/fast driver’, he drove on soft tyres with a full load at the back of the truck, he was using the vehicle to charge and run devices such as laptop and drone or that there could be something wrong with the vehicle.

It was agreed by all parties present in the meeting that the Complainant’s vehicle would be tested to see if there was an issue with the vehicle. He was provided with a replacement vehicle in the interim.

On 25 March 2024, Mrs. S sent a letter to the Complainant to invite him to another investigation meeting following the initial meeting. The purpose of the meeting was outlined in the letter and was to discuss updated information regarding the Complainant’s fuel consumption.

On 26 March 2024, Mrs. S, Mr. K, the Complainant and Mr. N met for another investigation meeting. The Complainant was presented with four documents and given time to review them.

The first document was an email from the garage stating that there was no issue with the vehicle, that following a diagnostic test the recorded fuel consumption was 9.6 litres per 100km.

The second document was a direct comparison of the Complainant’s vehicle which was purchased the same day for another engineer. Both vehicles showed very similar mileage on 13th March 2024. The Complaints vehicle had 88,624 kms and his comparator had 90,214 kms on his vehicle. The Complainant had purchased €6,575 (4,156 more litres) more fuel between October 2022 and March 2024 than the comparator vehicle.

The third document was an updated fuel usage analysis given that the Respondent now had an accurate mileage from the vehicle. This showed that

• The Complainant was using 2.3 times more fuel compared with the average Technical Service employee driving the same vehicle make and model (Toyota Landcruiser)

The fourth document contained emails from Circle K stating that they had reviewed video footage at their garages and on a number of occasions vehicles other than the company vehicle were refuelled, along with canisters which were also filled by the Complainant. It also noted that screen wash was purchased and placed into another vehicle.

The Complainant was advised of the seriousness of the situation and was requested a number of times to take time to consider the information that was presented to him at the meeting, and that they could reconvene. The Complainant rejected this.

The Complainant responded by stating that he was unhappy with the Respondent company. The Complainant stated that he was ‘running his vehicle all weekend.’ Mrs. S sought clarity around what he meant by “all weekend” and asked if he was turning it off at night and restarting it in the morning. The Complainant said that he ran it the entire time. He additionally stated that he would put fuel into other vehicles when his own vehicle was not working. He claimed his vehicle had battery issues and when the Respondent asked if he reported this, he said he did not.

The Complainant was placed on paid suspension pending outcome of the investigation.

On 29 March 2024, the Complainant was sent a letter inviting him to a Disciplinary Hearing. The investigation report was sent to the Complainant along with the invitation 6 letter. The Complainant was afforded his right to be accompanied.

On 2 April 2024, the Complainant, who was accompanied by Mr. N, met for a Disciplinary Hearing following the investigation regarding the Complainant’s fuel consumption. The findings of the investigation were discussed. Mr. C was the Disciplinary Officer and Mr. B attended as the Scribe.

On 5 April 2024, Mr. Cosgrove and Mr. Byrne met with the Complainant and Mr. Swan. The meeting was to discuss the outcome of the Disciplinary Hearing. During the meeting, the Complainant was informed of the decision to dismiss. The Complainant was sent the disciplinary outcome letter. The letter stated that the decision was made to dismiss the Complainant on the basis that his actions resulted in gross misconduct. The Complainant was given the right to appeal the decision.

The Complainant appealed the decision to dismiss on several grounds as outlined in documents he provided at the appeal hearing.

On 12 April 2024, the Complainant was invited to an Appeal Hearing. Mr D, the Financial Controller acted as the Appeal Officer. The Complainant was afforded his right to be accompanied.

On 16 April 2024, Mr D, the Appeal Officer and Mr B, the Scribe, met with the Complainant for an Appeal Hearing. The Complainant did not avail of his right of representation during the Appeal Hearing, despite it being afforded to him. The Complainant presented three documents and requested that they be reviewed.

He was asked if there was anything in the 7 documents that he specifically wanted to highlight to the Respondent, and he responded to say that it was all relevant.

On 24 April 2024, the Complainant was sent a letter outlining the outcome of the Appeal Hearing held on 16 April 2024. The Complainant’s appeal was not upheld.

Actions warranting gross misconduct

The Respondent submits that the dismissal was fair given the conduct of the Complainant when in employment with the Respondent.

The Unfair Dismissals Acts 1977 states,

(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,…

It is the Respondent’s position that the Complainant’s actions in relation to the company vehicle and fuel card amounted to gross misconduct and the Respondent was left with no alternative but to dismiss.

The Complainant acted in contravention of the companies’ policies and procedures in relation to the use of the company vehicle and fuel usage particularly the Company Vehicle Policy. The Policy clearly states that “All company vehicles are issued on the understanding that they will be cared for and utilised in a responsible manner and that all the terms of this policy are complied with. Employees who have not taken due care of this company asset will be liable to a penalty as exercised by the company on return of the vehicle. Disciplinary action up to and including dismissal and/or the withdrawal of the benefits in this policy may be taken if this responsibility is abused.” The policy also states in relation to the use of fuel cards that “The company will fund all business and reasonable personal fuel or electricity expenses for drivers of a company vehicle”.

The Complainant did not use the company vehicle in a ‘responsible manner.’ The Complainant alleged in the investigation meeting that he was ‘running his vehicle all weekend.’ It was also found that he was filling up separate cannisters and other vehicles using the company fuel card. It is the Respondent’s view that this is wholly unreasonable use of the company fuel card.

The Respondent found that the Complainant’s actions warranted an investigation and subsequent disciplinary action. When considering what sanction to apply the company had regard to the seriousness of the allegations and also the representations and explanations made by the Complainant within the process itself.

It is the Respondent’s position that the Complainant’s actions amounted to gross misconduct.

Having considered all the facts, the responses and explanations of the Complainant’s conduct were not considered “reasonable” nor sufficient such as to mitigate the extreme seriousness and far-reaching implications of his actions.

In relation to the sanction imposed by the Respondent, the principles to be applied in cases of gross misconduct have been clearly established over time, and the test as set out in Looney & Co. Ltd v Looney, UD 843/1984 is as follows: “It is not for the Tribunal to seek to establish the guilt or innocence of the claimant, nor is it for the Tribunal to indicate or consider whether we, in the employer’s position, would have acted as he did in his investigation, or concluded as he did or decided as he did, as to do so would substitute our mind and decision for that of the employer. Our responsibility is to consider against the facts what a reasonable employer in the same position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s action and decision be judged.”

It is the Respondent’s position that a “reasonable employer in the same position and circumstances” would have reached the same determination in the circumstances of the within case. As such the company’s decision to dismiss was reasonable and fair in the circumstances, and no unfair dismissal took place. The actions of the Complainant destroyed the company’s trust and confidence in him and rendered the continuation of the employment relationship impossible, therefore justifying dismissal. This position has been upheld by the Employment Appeals Tribunal on a number of occasions, including in Knox Hotel and Resort Ltd, UD 27/2004, where the Tribunal stated that: “[The claimant’s actions] destroyed the respondent’s trust and confidence in the claimant and rendered the continuation of the employment relationship impossible, thereby justifying her summary dismissal”

The Respondent’s trust and confidence in the Complainant was further damaged by his dishonesty within the investigation and disciplinary process. The Complainant varied his position and reasoning on several occasions throughout the process.

• During initial discussions he claimed that he was unaware as to why his fuel consumption was so high and presented the Respondent with a few possibilities. The Respondent considered the Complainant’s initial presumptions for his high fuel usage and sent the car to get assessed by the garage to rule out a vehicle issue.
• Upon receipt of the report from the garage stating that there was no fault with the vehicle, the Complainant altered this reasoning to state that he was unhappy with the company, therefore he would leave the vehicle running throughout the weekend and that he would put fuel into other vehicles when his vehicle was not working as he claimed his vehicle had battery issues.
• At the disciplinary hearing, the Complainant pivoted his position and stated that he did not run his vehicle all weekend because he was annoyed with the company, he was running the vehicle to keep the battery charged to be ready for work on Monday

All the evidence in its entirety was considered, including the Complainant’s representations before any decision was made or action taken. In light of all of the above, the Respondent believes that the decision of dismissal of the Complainant was fair, reasonable and justifiable given the severity of his actions. Given the nature of work of the Respondent’s business, health and safety is of extreme importance to the company. The Respondent finds that the Complainant allegedly leaving his vehicle on all weekend poses a serious health and safety risk and environmental harm.

The Disciplinary Procedure

It is the Respondent’s position that the Complainant was afforded all the principles of natural justice and fair procedures as set out in S.I. No. 146/2000 - Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000,

• That employee grievances are fairly examined and processed.
• That details of any allegations or complaints are put to the employee concerned.
• That the employee concerned is given the opportunity to respond fully to any such allegations or complaints.
• That the employee concerned is given the opportunity to avail of the right to be represented during the procedure.
• That the employee concerned has the right to a fair and impartial determination of the issues concerned, considering any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors, or circumstances.

When the Complainant stated that he was unhappy with the company, the Respondent asked whether he had raised a grievance through the Company Grievance Policy, but he did not. The Respondent submits that if the Complainant were unhappy in relation to his role and the terms and conditions of his work that he should have used the internal mechanisms available to him and that it would have been dealt with in a fair and unbiased manner.

It is the Respondent’s position that any reasonable employer would warrant the actions of the Complainant as abuse of his company vehicle and therefore that the Respondent’s decision to dismiss be unarguably fair.

Conclusion

The Complainant has alleged that his dismissal from the Respondent company was unfair and that the disciplinary action was ‘excessive.’ The Respondent refutes this allegation in its entirety.

The Complainant’s actions warranted gross misconduct, and the Respondent submits that any reasonable employer would have found the same outcome in the same circumstances.

The Complainant deliberately breached the company policy and destroyed any trust or confidence between himself and the Respondent.

The Respondent submits that the Complainant was afforded all the principles of natural justice throughout the investigation, disciplinary and appeal proceedings.

Sworn evidence was given by the Managers who conducted the investigation, disciplinary and appeal process.

Findings and Conclusions:

The Complainant was dismissed on grounds of gross misconduct for abuse of the company policy in relation to use of company vehicle, excessive use of fuel card and excessive fuel consumption.  The Complainant submitted that he was required to work excessive hours and that his actions were in some way related to this grievance.   I note the extensive procedure adopted by the company in relation to investigating the alleged wrongdoing, and I note especially the appeal report submitted in evidence which comprehensively addresses the points made by the Complainant in his appeal documents.

In O’Riordan v Great Southern Hotels UD1469/2003, the EAT set out the appropriate test for determining claims relating to gross misconduct:

“In cases of gross misconduct, the function of the Tribunal is not to determine the innocence or guilt of the person accused of wrongdoing.  The test for the Tribunal in such cases is whether the respondent had a genuine belief based on reasonable grounds arising from a fair investigation that the employee was guilty of the alleged wrongdoing”.

In assessing the proportionality of the sanction, Noonan J. in Bank of Ireland v Reilly IEHC 241 stated:

“The question.. is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned”.

In this instant case, I base my findings and conclusions on three key questions

 (1) Did the Respondent have a genuine belief based on reasonable grounds arising from a fair investigation?,

(2) Was there a fair investigation? and

(3) was the penalty proportionate? 

In relation to (1) and (2) the matter came to the Respondent’s attention following a review of fuel consumption in relation to carbon emissions, and the Complainant’s fuel consumption was higher than other comparable situations.   The subsequent investigation and disciplinary process was carried out in accordance with best practice as contained in S.I. 146/2000, where the Complainant was made aware of the charges against him, was afforded the right to be accompanied/represented and was afforded the right to appeal the sanction.   In relation to the penalty, obviously dismissal is the ultimate penalty. The Respondent did not consider a lesser penalty as trust and confidence in the employee had been lost not least by the Complainant’s inconsistent responses at the beginning of the process and by the Complainant’s linking his dissatisfaction with his working hours to his actions.  In such circumstances, a reasonable employer would conclude that the employment relationship could no longer continue.  In all of the circumstances, I find the complaint that the Complainant was unfairly dismissed, to be not well founded.

Decision:

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

 Based on the findings and reasons above, I have decided that the complaint is not well founded.

Dated:   10th April 2026.

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Key Words: