Complainant

Respondent

Parties

David  O'Connor

Sport & Leisure Travel Ltd

Representatives

 Maurice Osborne B.L. instructed by Conor Mac Guill Solicitors

 Alastair Purdy & Co. Solicitors

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-00067360-001

13/11/2024

 The complainant was employed by the respondent as a Corporate Sales Director from 1st February 2023 until his dismissal for gross misconduct on 10th July 2024. The complaint, submitted to the Workplace Relations Commission (WRC) on 13th November 2024, relates to an alleged unfair dismissal.

In arriving at my decision, I have taken the time to carefully review all the evidence both written and oral. I have noted the respective position of the parties and have considered the precedent case law cited. I am not required to provide a line for line rebuttal of the evidence and submissions that I have rejected or deemed superfluous to the main findings. I am guided by the reasoning in Faulkner v. The Minister for Industry and Commerce [1997] E.L.R. 107 where it was held that minute analysis or reasons are not required to be given by administrative tribunals and only broad reasons need be given. I am required to set out such evidential material which is fundamentally relevant to the decision per MacMenamin J. in Nano Nagle School v Daly [2019] IESC 63.

Preliminary Point – Jurisdiction

The respondent contends that the WRC does not have jurisdiction to hear the complaint. The respondent stated that the complainant’s contract of employment was subject to the laws and jurisdiction of Northern Ireland with notice entitlements outlined under Northern Ireland legislation. The respondent also stated that the contract stated that the complainants place of work was in Northern Ireland.

Legal Submissions - Jurisdiction

The respondent stated that it is relying on the choice of law rules under Regulation (EC) No. 593/2008 (Rome 1). The respondent cited Articles 3(1), 8(2), 8(3) and 8(4) of Rome 1 in respect of the applicable jurisdiction to hear the complaint. The respondent also cited the case of Schlecker v Boedecker (c-64/12) [2013] ICR 1274 in support if its contention that irrespective of where the wok is habitually carried out, the law of that country can be disregarded if it appears from the circumstances as a whole that the contract is more closely connected with another country. The respondent stated that in this complaint, the contract is more closely connected to Northern Ireland as the complainant’s employment right entitlements were observed under the laws of Northern Ireland and his place of work was also Northern Ireland by virtue of his contract of employment.

Substantive complaint

The issue that led to the complainant’s dismissal for gross misconduct was that he engaged in several conversations via electronic message with a colleague and the messages in questions were deemed inappropriate towards his fellow directors and potentially damaging to the organsiation. The complainant also engaged in what the respondent considered to be inappropriate messages with an external third party in relation to the recruitment of new hires to the company. The respondent contends that the complainant behaved in such a way that the working relationship was untenable because there was no longer trust and confidence in the complainant to remain as a company director or employee of the organisation.

Respondent Evidence

Managing Director – John Boyde

The Managing Director, Mr John Boyde gave sworn evidence at the adjudication hearing. The witness stated that the complainant began working for the organisation on a full-time basis in February 2023 in a Sales role. The witness confirmed that the complainant was making comments that it was his business and that no one would tell him what to do etc. The witness stated that when the other director became aware of the electronic messages between the complainant and his colleague, they sought advice and the investigation process commenced thereafter. The witness stated that he had no further involvement in the investigation process. The witness denied that the dismissal was a mechanism by which the complainant could be deprived of his shareholding in the organisation. The witness stated that a working relationship was not possible with the complainant and that he was dismissed for the content of his messages exchanged with a junior member of staff and other messages that had the potential to cause reputational damage to the organsiation.

Counsel for the complainant put it to the witness in cross examination that the process was a “stitch up” to dismiss the worker and deprive him of his shareholding in the organisation. Counsel stated that the investigation process was completely at variance with the principles of fair procedures as the complainant was unaware of the allegations prior to the investigation, had no opportunity to have representation at the investigation stage of the process, was not given any details prior to the investigation and was suspended immediately prior to the investigation, which in itself was punitive and had damaged the complainant’s reputation which made it very difficult for him to return to the workforce. The witness stated that the advice of the Solicitor had been followed in respect of the investigation vis a vis applying Northern Ireland jurisdiction and thereby the requirements in relation to the investigation process were different. The witness also reiterated the point that the dismissal was not a stitch up to deprive the complainant of his shareholding and occurred in circumstances where the complainant had referred to his co-directors as “dumb and dumber” in conversations with a junior member of staff and had referred to a co-director in a particularly offensive way on the basis of a known disability. In addition, the complainant had also engaged in unprofessional conversations on linked in with a recruiter that was in the process of looking at potential hires to the respondent.

Investigation Process – Georgina Grieves

The person who conducted the investigation, Ms Georgina Grieves gave sworn evidence at the adjudication hearing. The witness confirmed that she had been approached as an external person was required to carry out the investigation given that the issue related to the behaviour of one of the company directors and senior member of staff. The witness stated that she met with the complainant on 17th June 2024 and that he was aware of a serious issue arising from his conversations with another staff member. The witness stated it was her belief that the matter was being dealt with under Northern Ireland legislation and on that basis, there was no requirement for the complainant to have advance notice of the issues that led to the investigation meeting or to have representation at the investigation stage of the process. The witness stated that the complainant felt he was being pushed out of the organisation and the comments and jokes he was making with his colleague were made as a coping mechanism. While the complainant believed the comments were office banter that got out of hand, the complainant’s colleague was of the view that the complainant’s comments were not just office banter and that no one else had spoken to her that way. The witness stated that given that the comments had not been denied, she felt that it was appropriate to invoke the disciplinary procedures. The witness stated that she had no further involvement beyond conducting the investigation process.

It was put to the witness in cross examination that she was required to investigate the procedures that were being applied to the investigation, particularly the fact that the allegations had not been put to the complainant prior to the investigation. The witness stated that she followed the advice of the solicitor and re-iterated the point that the investigation was being carried out under Northern Ireland legislation, so there was no requirement to notify the complainant in advance. The witness also confirmed in cross examination that she was not investigating the working relationships of the parties. Counsel for the complainant put it to the witness that she should have taken the working relationships into account as well as the context of the conversations and the culture of the organisation at the investigation stage as well as the mitigating factors surrounding the complainant’s perception that he was being pushed out of the organsiation. The witness stated that she felt she did not need any further information relating to carrying out the investigation but did recommend access to the systems for the complainant to access messages in advance of the disciplinary process.

Disciplinary Process – Lynn Graham

The person who carried out the disciplinary process, Ms Lynn Graham gave sworn evidence at the adjudication hearing. The witness stated that she had been asked to independently chair a disciplinary process. The witness stated that she had a 15–30-minute conversation in relation to the process and was aware of the accusations against the complainant as well as the disciplinary policy of the respondent organisation. The witness noted that the complainant had sought legal representation but that this was not appropriate as part of the internal disciplinary process. The witness stated that the disciplinary meeting was very much facts based with questions being put to the complainant. There were no issues raised with the investigation report and mitigating circumstances were considered. The witness stated that there were no unanswered questions following the disciplinary meeting.

Counsel for the complainant put it to the witness in cross examination that mitigating factors had not been considered as part of the disciplinary process. It had been confirmed that the complainant had felt he was being sidelined and was out of the loop, so he began conversing with a junior staff member of staff to feel part of the business as he was isolated and working alone without contact from his co-directors. It was also put to the witness that the culture of such banter was not considered and that many staff were engaging in such jocular conversations without reprisal. The complainant had clarified that he had not meant any offence in respect of the conversations concerning his co-director and this had not been considered as a mitigating factor. The witness stated that his comments about his co-director were not mitigating and while it was not malicious, it was a serious misjudgement by the complainant as a director and part owner of the business. In respect of the complainant feeling out of the loop and isolated the witness accepted that the complainant felt this way but stated that he made little effort to improve relationships by attending at the respondent premises and become more integrated in the organisation.

Appeal Process – Louise Simpson

The person who conducted the appeals process, Ms Louise Simpson gave evidence by affirmation at the adjudication hearing. The witness confirmed that she had been contacted in relation to carrying out the appeal. The witness stated that she was in receipt of the investigation report, the disciplinary outcome, the grounds of appeal and the relevant appeal procedures. The witness confirmed that the complainant was given the opportunity to have a trade union representative or a family member present but chose to attend the appeal meeting alone. The witness stated that she could informed the complainant that she could make any decision at the appeal stage and was totally independent of the Company. The witness stated that the complainant was sceptical as to her independence and stated that he was not willing to return to work for the respondent and that he was seeking a settlement on the basis that he felt the situation had been created by the respondent to remove him from the business. The witness stated that during the appeals process, the complainant did not see the seriousness of his actions or the potential damage that could have been caused to the respondent organisation. The witness concluded her evidence by confirming the appeal was not upheld, she was satisfied that she had considered everything and that the process was now exhausted.

Counsel for the complainant stated in cross examination that the complainant had raised concerns in the appeals process relating to the investigation stage of the process. The witness confirmed in response that she was satisfied with the investigation procedures and had no concern with the investigator’s impartiality. The witness acknowledged that the complainant held the view that the respondent was attempting to remove him from the business, but the witness noted that the complainant had accepted his behaviour and that his comments and conversations had been inappropriate. The witness also stated that there was no proof that the respondent was trying to remove him from the business and in her opinion the respondent’s actions were proportionate and fair.

Legal submissions – Substantive complaint

The respondent stated that the complainant was fairly dismissed in accordance with Section 6(4)(b) of the Unfair Dismissals Act, 1977 because of his conduct and following fair and transparent investigation, disciplinary and appeals processes. The respondent stated that it always acted reasonably in accordance with the provisions of Section 6(7) of the Act and cited the cases of Hennessy v Read and Write Shop Ltd UD 192/1978 and Bank of Ireland v Reilly [2015] IEHC 241 in support of its position in that regard.

The respondent’s position is that the complainant’s conduct amounted to gross misconduct in circumstances where his actions brought the company into disrepute and his behaviour was at such a level that it resulted in a breach of trust and confidence in him to continue in hisemployment.

Mitigation of Loss

The respondent’s position that the complainant has not made sufficient efforts to mitigate his losses following his dismissal.  The respondent stated that the cases of Sheehan v Continental Administration Co Limited (UD858/1999) and Burke v Superior Express Limited (UD 1227/2014) both set out the high standard that a complainant must reach in efforts to mitigate losses arising from a dismissal.

Contribution

Notwithstanding its position in relation to the fairness of the complainant’s dismissal, the respondent contends that the complainant contributed 100% to the termination of his employment from the respondent organisation and had accepted that he made repeated inappropriate comments to a junior member of staff and an external third party.

Conclusion

The respondent concluded its submissions by stating that notwithstanding its position on jurisdiction, the complainant was not unfairly dismissed. The respondent stated that the complainant’s behaviours were not disputed by him. The respondent stated that a fair and transparent disciplinary process found that the complainant’s behaviour amounted to gross misconduct and that summary dismissal was appropriate. The complainant was afforded an appeal and an independent third party also found that dismissal for gross misconduct was appropriate. The respondent contends that the complaint is without merit and should fail.

Preliminary Point – Jurisdiction

The complaint is relying on Brussels 1 Regulation (recast) “the regulation” in respect of the jurisdiction to hear his complaint. The complainant contends that the most influential factors in determining jurisdiction are the place where the complaint is domiciled and the place where the complainant habitually carries out their work.

The complainant cited Articles 20 and 21 of the regulation in respect of the right to initiate proceedings within the Republic of Ireland (ROI) and have his complaint heard at the WRC. The complainant’s position is that he is domiciled in the ROI and carried out his duties exclusively from the ROI. The complainant cited the case of A Seafarer v A Shipping Company (ADJ-00027736) in support of the position that as the complainant habitually carried out his work in the ROI, he can initiate proceedings in this jurisdiction. The complainant further citied the case of Abama and Ors v Gama Construction Ireland Ltd [2015] IECA 179 in support of the position that despite jurisdictional clauses contained in employment contracts, it is not determinative of the matter regarding the initiation of proceedings in the ROI.

Substantive complaint

The complainant’s representative outlined the circumstances where the complainant was suspended by letter dated 12th June 2024 on the basis that he had engaged in messaging a junior member of staff making derogatory comments in relation to his two co-directors. The complainant was also alleged to have made further inappropriate comments to a recruiter being used by the respondent in a private linked in conversation. Counsel for the complainant stated that the other two directors were engaged in a process where they sought these messages from the recruiter so they could build a case against the complainant and dismiss him unfairly from the employment which would deprive him of the value of his share agreement.

Processes concluded by the respondent.

The complainant was invited to an investigation meeting on 17th June 2024 in respect of the allegations that led to his suspension. The complainant was unaware of the allegations in advance of the meeting and was not provided with terms of reference in relation to the investigation. The investigator found that the matter should be progressed to a disciplinary process which took place on 1st July 2024. The outcome of the disciplinary process was that the complainant had behaved in a manner that amounted to gross misconduct and that summary dismissal was appropriate. The complainant was dismissed with effect from 10th July 2024. The dismissal was appealed and the appeal was not upheld. The complainant’s dismissal was confirmed following the appeal with an effective date of 10th July 2024.

Legal Submissions – substantive complaint.

Counsel for the complainant contends that the respondent failed to apply fair procedures to the complainant at the investigation process as the complainant was not aware prior to the commencement of the process what he was being accused of or the reason for his suspension. Counsel also contends that the complainant’s dismissal was disproportionate to the alleged incidents. Counsel cited the cases of Frizelle v New Ross Credit Union Ltd [1997], Kilsaran Concrete v Vet UDD 11/2016 and McGee v Peamount Hospital UD136/41984 in support of its position in that regard. Counsel further contends that the respondent did not act reasonably in its decision to dismiss the complainant. On that issue counsel cited the cases of Dowling v Harbour Technology Limited [2003] 2 JIEC 2501 and Mooney v Oxigen Environmental (2014)UD1525/2012.

In respect of the complainant’s behaviour, which he ha accepted, counsel cited the cases of John O’Brien v Thermo Fisher Scientific Cork Ltd (ADJ-00050692) and Keith Hackett v Heineken Ireland Limited (ADJ-00043446) in respect of a cultural acceptance of inappropriate language and behaviour which the complainant contends was a feature of his employment with the respondent.

Complainant Evidence

David O’Connor – complainant

The complainant, David O’Connor gave sworn evidence at the adjudication hearing. The witness stated that he had 30 years’ experience in Sales and Marketing and had worked with the respondent’s Managing Director, John Boyde from 2010-2013 and they had kept in touch.  The witness stated that they both had the idea of sporting trips and golf tours around Ireland and the venture began in 2020. The witness stated that during covid he was building the website and branding etc and kept on giving as much time as he could to the business making sales etc while still working full time for another company. The witness confirmed that he ceased in his other employment in February 2023 and began working full time for the respondent at that time.

The witness stated that a friend of John Boyde’s also came on board and initially things were going well but with three equal partners all making decisions, it became more difficult. The witness stated that John Boyde became the Managing Director, with a 34% shareholding and things then started to change. The witness described the situation as a “dictatorship” and stated that he was being excluded from emails, meetings and important decisions regarding the business despite being equal partners with the other two co directors. The witness stated that he felt he could approach Mr Boyde with his concerns regarding how he was being treated but felt isolated and excluded and was aware that the other two directors were working together in Belfast and the complainant was “out of the loop” and working alone in Dublin. The witness stated that he then got the impression that he was being excluded and that the other two directors were against him. In June 2024, the witness stated that he was locked out of the email system and was suspended for alleged gross misconduct. The complainant further stated that he had no idea what he was supposed to have done. The witness confirmed that he attended the investigation meeting alone and that he was informed that fair procedures did not apply as it was the Northern Ireland jurisdiction that was being applied to the disciplinary process.

In respect of the messages with his colleague and the external third-party recruiter, the witness contends that there was a culture of such banter in the organisation. The complainant gave examples of how clients were referred to by the other directors and how all staff including the directors engage in what could be described as “locker room talk.” The witness acknowledged that the comments were inappropriate, immature and embarrassing to some degree but felt that they were not at a level which should result in summary dismissal for gross misconduct.

Cross examination.

The respondent’s solicitor put it to the complainant in cross examination that the Managing Director, John Boyde had the idea in relation to sporting trips and decided to set up the business in 2020. It was also put to the complainant that he had asked to be removed as a director in 2021 because of a litigation threat. The witness confirmed this to be the case and that he had then returned to the position of director after the litigation threat did not materialise. The witness confirmed that things were going well and that while the place of business was Belfast, he had always worked remotely from his Dublin home and was looking into the possibility of office space as the business was growing. In respect of his dissatisfaction with feeling isolated and excluded from the day to day running of the business, the complainant confirmed that although he had a copy of the staff handbook, he did not raise a grievance. The witness stated that he was not experienced in submitting grievances against his business partners and co -directors. In respect of the investigation process, it was put to the witness that the conversation with the recruiter did take place and there were no challenges to the messages that the complainant had engaged in with his colleague about his co-directors. The respondent solicitor put it to the complainant that given the investigation process and what had been confirmed to have taken place, a disciplinary process was deemed appropriate. The witness confirmed in cross examination that he was in receipt of all allegations at the disciplinary process and had no issue with the person conducting the disciplinary process. It was also confirmed that representation was permitted. The witness stated that he had been denied access to the respondent’s IT system and was unable to review the messages with his colleague at any time during the process despite access being recommended following the investigation process. The witness also stated that the disciplinary process did not investigate whether there was a culture of such banter across all staff in the organisation as a mitigating factor.

Conclusion

Counsel for the complainant concluded his submission by stating that the unfair actions of the respondent resulted in the complainant losing his livelihood and his valuable shareholding in the company which was brought about by the employer as a “stitch up” to remove the complainant. Counsel contends that the Republic of Ireland jurisdiction applied to the investigation process and the complainant should have been notified in advance of the charges against him and been given the opportunity to have representation. Counsel contends that the evidence of the complainant is to be preferred on the basis that the evidence of the Managing Director was unclear and he did not remember how the linked in messages between the complainant and the recruiter had been produced at the investigation meeting and in circumstances where these messages occurred as part of a private conversation. Counsel also stated that the Managing Director accepted that it was unnecessary to suspend the complainant at all during the process.

Counsel state that the dismissal was disproportionate and that a written warning would have been the appropriate sanction especially in circumstances where there was a culture of such banter and that the complainant had given examples of this during the investigation and disciplinary processes. Counsel for the complainant contends that the dismissal was unfair and is seeking compensation in relation to his complaint.

Preliminary Point - Jurisdiction

I note the different position of the parties to the complaint and their respective positions relating to jurisdiction. The respondent is relying on the choice of law rules under Regulation (EC) No 593/2008 (Rome 1) “Regulation Rome 1”. The respondent contends that the applicable jurisdiction is that of Northern Ireland (N.I.) and as a result claims that the matter is not properly before the WRC adjudication services. The respondent’s position is that the parties have chosen the jurisdiction of N.I. by virtue of the contract of employment and the choice of legislation contained therein.

The complainant is relying on Brussels 1 Regulation (recast) 1215/2012 “the regulation”. The complainant’s position is that he was domiciled in the Republic of Ireland (ROI) and carried out his work exclusively from the Republic. The complainant’s position is that under the regulation the respondent may be sued in the country of its domicile or alternatively in the country where the complainant habitually carries out their work.

Preliminary Point Decision – Jurisdiction

In relation to this preliminary point, I refer to the European Commission’s Practice Guide on the jurisdiction and applicable law in international disputes between the employee and the employer and the provisions of the Rome 1 Regulation (EC) No. 593/2008 (revising the 1980 Rome Convention). Both contain special provisions to determine which courts have jurisdiction over disputes relating to individual contracts of employment and the applicable law, respectively.

The Practice Guide provides as follows:

“These special provisions derogate from general principles on jurisdiction and applicable law with the aim of protecting employees as the weaker party to the contract. Generally, those special provisions allow the protected party to be sued in the courts of his/her own domicile, but gives that party a choice of jurisdiction when he/she is the claimant” and

“In disputes between the employee and the employer, the main connectingfactor between the Brussels 1 Regulation (recast) and the Rome 1 Regulation linking the dispute with a particular court and a particular applicable law is the ‘place where the employee habitually carries out his work.’ This means that the employee has access to the courts in the Member State where he/she habitually carries out his/her work and that that Member State’s law will generally apply to solve the dispute, even when work is carried out in more than one country. The Regulations aim to prevent proceedings from being brought in multiple jurisdictions and being determined under multiple applicable laws.”

Brussels 1 Regulation (recast) (EU) No. 1215/2012

Brussels 1 Regulation (recast) (EU) No. 1215/2012 provides the rules for determining jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.  Notably, Regulation 18 of the Preamble provides: “In relation to insurance, consumer and employment contracts, the weaker party should be protected by rules of jurisdiction more favourable to his interests than the general rules.”  Section 5 provides for jurisdiction in respect of individual contracts of employment as follows:

“SECTION 5

Jurisdiction over individual contracts of employment

Article 20

1. In matters relating to individual contracts of employment, jurisdiction shall be determined by this Section, without prejudice to Article 6, point 5 of Article 7 and, in the case of proceedings brought against an employer, point 1 of Article 8.

2. Where an employee enters into an individual contract of employment with an employer who is not domiciled in a Member State but has a branch, agency or other establishment in one of the Member States, the employer shall, in disputes arising out of the operations of the branch, agency or establishment, be deemed to be domiciled in that Member State.

Article 21

1. An employer domiciled in a Member State may be sued:

(a) in the courts of the Member State in which he is domiciled; or

(b) in another Member State:

(i) in the courts for the place where or from where the employee habitually carries out his work or in the courts for the last place where he did so; or

(ii) if the employee does not or did not habitually carry out his work in any one country, in the courts for the place where the business which engaged the employee is or was situated.

2. An employer not domiciled in a Member State may be sued in a court of a Member State in accordance with point (b) of paragraph 1.

Article 22

1. An employer may bring proceedings only in the courts of the Member State in which the employee is domiciled.

2. The provisions of this Section shall not affect the right to bring a counterclaim in the court in which, in accordance with this Section, the original claim is pending.

Article 23

The provisions of this Section may be departed from only by an agreement:

(1) which is entered into after the dispute has arisen; or

(2) which allows the employee to bring proceedings in courts other than those indicated in this Section.”

I note that the respondent has stated that the parties chose the jurisdiction by virtue of the complainant’s contract. Firstly, there was no signed contract submitted in relation to the complainant. Secondly, there is no choice of jurisdiction within the unsigned contract. The respondent stated that the choice was implied by virtue of the legislation that was included within the document. I do not accept this contention. In my view, the N.I. legislation is reflective of where the document is compiled but does not, in the circumstances of this complaint, equate to a choice of jurisdiction agreed by the parties.

The complainant contends that the Brussels regulation applies on the basis that the complainant resided and carried out his work in the ROI. The complaint also contends that the respondent had a branch, agency or other establishment in the State because the complainant carried out his work entirely from home in the ROI.

The Practice Guide helpfully sets out the requisite analysis to be applied by a court seized with a claim against an employer over an individual contract of employment which I have applied to the instant factual matrix.

 Firstly, in relation to jurisdiction, I must ask: “Does the dispute relate to an individual contract of employment?”  As there is no dispute that the Complainant was an individual employed under a contract of employment, the answer to this is in the affirmative.

 The next question posed is: “If so, do I have jurisdiction pursuant to Section 5 of Regulation 1215/2012/EU?”  In circumstances where there is no dispute that the Complainant exclusively worked in Ireland, I am satisfied that he habitually carried out his work in Ireland and therefore could fall under Article 21(1)(b)(i) aforesaid which provides that an employer domiciled in a Member State may be sued in another Member State, in the courts for the place where or from where the employee habitually carries out his work or in the courts for the last place where he did so.

 Having also answered that question in the affirmative, I must move onto the next question being: “Is there a choice of court agreement fulfilling the conditions of Article 23?” As this question is answered in the negative, the Guide stipulates: “Go to Article 21 and check whether the court can establish that the defendant (employer) is being sued at the place of: his/her domicile; at the place where the employee habitually carries out his/her work; if no such place, at the place where the business which engaged the employee is situated.”  As there is no issue that the Respondent is being sued at the place where the Complainant habitually carries out his work, being the Republic of Ireland, I am satisfied that he is therefore entitled to sue in the Republic of Ireland.

Substantive complaint

The Applicable Law

Section 6(1) of the Unfair Dismissals Act, 1977 provides as follows:

6(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

Section 6(4)(b) of the Unfair Dismissals Act, 1977 provides as follows:

(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) not relevant…….

(b) the conduct of the employee,

Reasonableness

Section 6(7) of the Unfair Dismissals Act, 1967 at relevant part provides as follows:

6(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so—

(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal,

The respondent contends that it acted reasonably in dismissing the complainant in accordance with Section 6(4)(b) of the Unfair Dismissals Act, 1977 and that it in the circumstances of the complaint the dismissal of the complainant was the proportionate sanction when considering the actions of the complainant and the definitions of gross misconduct included in the respondent’s disciplinary procedures.

Band of Reasonable responses

I note that in The Governor and the Company of Bank of Ireland -v- James Reilly (2015) IEHC 241, Mr. Justice Noonan elaborated on what was required by Section 6 of the Unfair Dismissals Acts as follows:

“It is thus clear that the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s. 6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the employer's conduct in relation to the dismissal. That is, however, not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned - see Royal Bank of Scotland v. Lindsay UKEAT/0506/09/DM.”

Gross misconduct

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

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

Mitigation of Loss

The complainant submitted a statement post hearing relating to the efforts he made to mitigate his losses following the termination of his employment. In his statement, the complainant outlined approximately 17 job applications between August 2024 and November 2025. In addition, the complainant provided information in relation to his efforts to continue as an entrepreneur and seek opportunities that were appropriate to his level of seniority and experience. The complainant stated that this approach was the most realistic, reasonable and pro-active way for him to restore his earnings and mitigate his losses. Between seeking new employment and developing business opportunities, the complainant estimated that he devoted approximately 20 hours per week in seeking to mitigate his losses.

Conclusions

I have considered the verbal and oral submissions of the parties to this complaint and the evidence adduced at the adjudication hearing. 

Firstly, it is not the role of an Adjudication Officer (AO) to judge a complainant or substitute his or her own judgement for that of the employer in circumstances where an employee is dismissed. The role of the AO is to decide firstly on the procedures applied by the respondent and secondly to consider the reasonableness or otherwise of the employer in the situation and whether the employer acted within the “band of reasonableness” towards the complainant.

In the within complaint, the complainant accepted that he had spoken inappropriately in his messages to his colleague and to a third-party who was a recruiter for the respondent, albeit in private messages on Linked In. The complainant acknowledged in his evidence that the comments were misjudged, and he is embarrassed as he looks back at the contents of the messages. The complainant stated he had not meant any harm in these conversations. The complainant outlined that he felt “out of the loop” and sidelined in respect of running the company when he was a shareholder, director and co-founder. He claims that this led to a sense of frustration and offers an explanation if not an excuse into some of the comments he made abouthis fellow directors which were meant in jest. The complainant also stated that there was a culture of such banter in the organisation from all staff including the other directors.

I note that the comments made by the complainant in conversations with a colleague had caused his fellow directors a level of upset and were received as being personally hurtful toward them. This was further compounded by the fact that these comments were made to a more junior member of staff who worked with the two directors. When the managing director became aware of the comments, he initiated an investigation into the comments made and, in my view, acted correctly in passing the matter to external consultants who carried out independent investigation and disciplinary processes. When the processes led to the complainant’s dismissal, a further independent consultant was then hired to conduct the appeal.

In relation to the application of N.I. jurisdiction used by the initial investigator, I note that the respondent in its submissions and evidence confirmed that this was done in good faith and on the advice of a Solicitor and was the honest belief of the respondent that it was applying the correct procedures. Having considered this point, I am not satisfied that this situation renders the process unfair as the complainant was in receipt of all information at the disciplinary stage of the process.

In relation to the finding of gross misconduct, I am satisfied that the disciplinary process was conducted with fairness and transparency. The complainant’s comments, which he accepted were made, resulted in a finding of gross misconduct which is the type of behaviour that no employer could be expected to tolerate. I accept that in the context of this complaint, where a director and co-founder of an organsiation makes repeated hurtful remarks about his co-directors to another staff member, (albeit in jest) it was reasonable for the respondent principals to conclude that the trust and confidence required to sustain an employment relationship at that level had been damaged beyond repair. On that basis, I find that the employer behaved within the band of reasonable responses of a reasonable employer in its decision to dismiss the complainant and that he was not unfairly dismissed.

For the reasons stated above, I find that the respondent acted reasonably in its decision to dismiss the complainant. On that basis, I find that the complainant was not unfairly dismissed. Accordingly, the complaint is not well founded.

Choice of Law Jurisdiction, unfair dismissal, gross misconduct,