Complainant

Respondent

Parties

Giorgio  Romano

AVOCA t/a AVOCA HANDWEAVERS LTD.

Representatives

Mr Tiernan Lowey BL instructed by Colleen Cleary ,Simmons and Simmons (Ireland) LLP

Aleksandra Tiilikainen IBEC

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-00067818-001

02/12/2024

The Complainant, employed as a Head Chef since 2007, was dismissed for gross misconduct on 16 August 2024. The Respondent is a large food and retail business employing approximately 1,000 staff.

The dismissal followed concerns raised in June 2024 about inaccurate chilling records for two food batches dated 4 June 2024. The Complainant accepted during the investigation that he had not taken the temperatures and that the records were inaccurate. Following a disciplinary process, in which he cited staffing pressures and denied any intent to breach procedures, the Respondent concluded the conduct amounted to gross misconduct and dismissed him. The appeal was unsuccessful and the dismissal was upheld in September 2024.

The Complainant contends that the dismissal was substantively and procedurally unfair and disproportionate given his 17 years’ service.

The Respondent denies the claim in full and maintains that the dismissal was justified

The Complainant submits that his dismissal on in August 2024, following allegations of falsifying records, deliberate misrepresentation, and disregard of safety procedures, was substantively and procedurally unfair.

He argues that the sanction of summary dismissal was wholly disproportionate to what he maintains was an isolated error in an otherwise exemplary 17‑year career with the Respondent.

He emphasises an unblemished disciplinary and performance record spanning 17 years, during which he contributed significantly to the Respondent’s food operations, including cookbook production, cooking demonstrations, and sustained loyalty during Covid‑19.

He describes himself as a valued and integral member of the business, with strong support from former senior management.

The Complainant  also highlights his age at 58 years old and that Avoca represented his entire working life in Ireland.

Events Leading to Discipline

The disciplinary process began after the Respondent received an HSE query on 11 June 2024 concerning chilling records for two batches of food from 4 June. The Complainant acknowledges an error in recording the times but denies any deliberate falsification unequivocally.

He asserts that before any disciplinary process commenced, the Respondent had already prepared a non‑conformance and corrective action report for the HSE on 14 June 2024 which:

·       Made adverse findings against him without his knowledge,

·       Concluded that false information was recorded, and

·       Recommended re‑training rather than disciplinary action, while expressly stating “there was no food safety risk.”

The Complainant maintains he was unaware of this investigation, the HSE correspondence, or the findings before attending the formal investigation meeting.

Procedural Defects

Across the investigation, disciplinary hearing, and appeals process, the Complainant alleges severe and repeated departures from fair procedures, including:

Pre‑judgment at the investigation stage

He argues that binding findings of fact were made before any disciplinary hearing, contrary to the Respondent’s own procedures which require that determinations be made only after a fair disciplinary process.

Lack of notice regarding allegations of gross misconduct

He says he was never informed that the allegations might amount to gross misconduct until the dismissal letter.

Investigation characterised as biased and incomplete

He contends that exculpatory factors—staff shortages, pressure, equipment issues, and training gaps—were ignored.

Disciplinary hearing conducted as a “sentencing exercise”

He submits that the disciplinary manager signalled that guilt was already determined and asked only for mitigation, without probing the facts or hearing witness evidence.

Notes of the disciplinary meeting were not shared before dismissal

Although the Respondent undertook to provide the notes, they were not furnished before the decision issued.

Appeal process flawed

He alleges:

·       Delay in issuing the appeal outcome,

·       Failure to address many key grounds of appeal,

·       New evidence gathered by the Respondent at appeal stage without being put to him for comment, and

·       Lack of transparency regarding who was consulted on training issues.

 Disparate treatment

A second employee referenced in internal reports as sharing responsibility for the relevant tasks was not subjected to disciplinary action.

Training, Resourcing and Systemic Issues

The Complainant argues that:

·       He had not been adequately trained on the new “kettle” equipment,

·       He had repeatedly sought further training but was rebuffed,

·       The kitchen was understaffed on the day,

·       There were no automated systems (timers, alarms) to assist with chilling compliance,

·       New monitoring procedures were implemented only after the incident, demonstrating systemic failings.

The Complainant  highlights the Respondent's own admission to the HSE that processes were inadequate, and that re‑training and increased monitoring were the correct measures ― reinforcing his view that dismissal was disproportionate.

Use of CCTV

The Complainant states that CCTV stills were relied upon in the investigation, even though:

·       His employment contract did not authorise such use of personal data,

·       He was not informed that CCTV could be used for disciplinary purposes,

·       CCTV was installed for security and safety, not performance monitoring.

The Complainant  argues that this constitutes unlawful processing under established case law in Doolin.

Complainant’s Position on Substantive Fairness

The Complainant maintains:

·       He made an honest mistake under pressure,

·       He did not intend to deceive or falsify records,

·       There was no food safety risk as confirmed by the Respondent in writing to the HSE,

·       The sanction of dismissal was entirely disproportionate,

·       His conduct fell far short of the standard required to justify summary dismissal.

The Complainant also suggests that his dismissal may have been opportunistic, given his longstanding favourable contractual terms and the appointment of an additional Head Chef shortly beforehand.

Case Law Cited by the Complainant

Doolin v Data Protection Commissioner & Our Lady’s Hospice (Court of Appeal, [2022] IECA 117; High Court [2020] IEHC 90). Used to support the argument that CCTV obtained for security purposes cannot be used for disciplinary purposes unless employees were expressly informed of this use.

AIB v Purcell ([2012] 23 ELR 189), cited for the principle that the question is not whether the WRC would dismiss, but whether it was reasonably open to the employer to do so — used here to argue that dismissal was not a reasonable response.

Cox et al., Employment Law in Ireland (2009), referenced for the general principle that dismissal requires adherence to natural justice and fair procedures notwithstanding employer discretion.

Conclusion

The Complainant asserts that the process was fundamentally flawed at every stage, that the sanction bore no relationship to the alleged wrongdoing, that key mitigating factors were ignored, and that the Respondent acted unreasonably and in breach of its own disciplinary procedures and data‑protection obligations. He therefore asks the Adjudication Officer to uphold his complaint of unfair dismissal and award full compensation.  

Background

The Respondent is a long‑established food and retail business operating multiple outlets and production facilities, employing close to 1,000 staff. The Complainant commenced work with the Respondent as a Head Chef in 2007. His employment was terminated on 16 August 2024 for gross misconduct.

On 11 June 2024, the Respondent received a communication from an Environmental Health Officer raising concerns about incorrect chilling records for two food batches dated 4 June 2024, both signed off by the Complainant. The recorded chilling times exceeded the three‑hour limit.

Following this, the Complainant was invited to an investigation meeting and advised of his right to representation. During the investigation, he admitted that he had not taken the food temperature and that the times recorded were inaccurate. An investigation report recommended proceeding to disciplinary action.

The Complainant was then invited to a disciplinary hearing. He stated he had been under pressure due to staff shortages and had not intended to breach food‑safety procedures. He also submitted a prepared statement.

In August 2024, the Respondent issued the disciplinary outcome, terminating his employment.

The Complainant appealed, but the appeal outcome and in September 2024 the Respondent upheld the dismissal.

Respondent’s Rationale for Dismissal

The Respondent argues that the dismissal arose wholly from the Complainant’s conduct, namely falsification/misrepresentation of food safety records and disregard of safety procedures. It asserts these actions constituted gross misconduct and undermined trust and confidence.

The Respondent also disputes any claim of insufficient training. The Complainant received the same kettle‑operation training as all colleagues in April 2024, delivered by two senior staff members. Management records indicated no request from the Complainant for additional training.

Given the Complainant’s managerial status, the Respondent argues he was expected to ensure compliance with food‑safety protocols and manage operational pressures appropriately.

The Respondent states that proper procedures were followed throughout, including notice of allegations, representation rights, multiple meetings, and consideration of all evidence before dismissal.

Position on Remedy

Should the Adjudication Officer find the dismissal unfair, the Respondent submits that reinstatement or re‑engagement would be wholly inappropriate due to loss of trust and the breakdown of the working relationship. The Respondent maintains that only compensation should be considered.

The Respondent also argues that the Complainant contributed entirely to his dismissal and therefore should receive no redress. On mitigation, the Respondent notes that the Complainant found new work 6.5 weeks after dismissal and submits that he must provide evidence of reasonable steps to mitigate loss.

Conclusion

The Respondent sets out  that the dismissal was substantively justified on the basis of gross misconduct relating to food‑safety record falsification, and procedurally fair; that trust had irretrievably broken down; and that reinstatement is inappropriate.

Case law is relied on to support the reasonableness of dismissal, seriousness of food‑safety breaches, breakdown of trust, limits on mitigation, and standards of procedural fairness.

Case Law Cited by the Respondent

Looney & Co. Ltd v Looney (UD 843/1984), cited to establish the “reasonable employer test”, i.e., the WRC should not substitute its own view but assess whether the employer’s response was within the range of reasonable responses.

Knox Hotel and Resort Ltd (UD 27/2004). cited to support that breaches of trust and confidence can justify summary dismissal.

Murray v Meath County Council (UD 43/1978)

Used to support the argument that where the employee contributes to dismissal, the tribunal may find no entitlement to redress.

ADJ‑00011404 (Head Chef / Catering Provider), cited to show that serious food‑safety breaches amount to gross misconduct and dismissal may be justified even for long‑serving employees.

ADJ‑00003869 (Employee v Manufacturing Company), to support the proposition that length of service and prior good performance is not valid mitigation in cases of gross misconduct

State (Irish Pharmaceutical Union) v Employment Appeals Tribunal (1986),  to emphasise natural justice and the requirement that parties have a right to be heard on remedy, particularly where reinstatement or re‑engagement is at issue.

Sheehan v Continental Administration Co. Ltd (UD858/1999), used in the context of mitigation of loss: claimants must actively seek work and cannot rely merely on registration with agencies.

ADJ‑00011755 (Welder/Fabricator) used to reinforce the need for demonstrated mitigation and to illustrate procedural considerations in unfair‑dismissal cases.

Unfair Dismissals Acts 1977–2015,

In a claim brought under the Unfair Dismissals Acts 1977–2015, the Complainant must first establish the fact of dismissal, after which the statutory presumption applies that the dismissal was unfair unless the Respondent can demonstrate substantial grounds justifying it. The Act places the burden on the employer to show both that there were fair and substantial reasons for the dismissal and that fair procedures, consistent with natural justice, were followed in arriving at that decision. This includes adherence to principles such as notifying the employee of the allegations, affording them an opportunity to respond, and ensuring an impartial and proportionate disciplinary process. Where the employer cannot discharge this burden, the dismissal will ordinarily be deemed unfair within the meaning of the Act

Complaint CA-00067818-001

This complaint was brought under section 8 of the Unfair Dismissals Act 1977. The complainant, who had more than 12 months’ service, was dismissed on 16 August 2024 for alleged gross misconduct. The complainant has sought reinstatement or compensation and confirmed that alternative employment was secured on 30 September 2024.

The facts and the circumstances in this case are largely agreed, in that the Complainant  was employed as Head Chef for 17+years, he was dismissed and there was falsification of records on the part of the Complainant.

The only issues for me to exam are if the process afforded to the Complainant was fair and that the arising sanction was, in that case, proportional.  If it is the case that the Complainant  was not afforded fair procedures and/or the sanction was disproportionate, then the final matter would then be to examine any potential redress.

The Complainant has admitted candidly that the records submitted by him in the employment as correct were not and that he knew this at the time and failed to rectify the matter. The Employer has pointed to this as a complete undermining of their trust and confidence in the Complainant  and that he flagrantly disregarded  health and safety regulations endangering others.

There is a disparity in the process where it is not shown that the Complainant was put on notice that the issue concerned was to be considered Gross Misconduct although the correspondence of the 19th of June does show that the investigation was serious and could led to his dismissal. Such warnings are, of course,  run of the mill in procedures and set out the full range of possible outcomes from warning to dismissal. I place no store that this shows prior intent on the part of the Respondent.  I am cognisant that the Complainant was in a senior role and might have had some indication in terms of the gravity of the matter, but his approach to apologise fulsomely in writing expressing such regret would contradict that he understood the procedures and consequences as fully as he might. I am of the opinion, that despite the senior role held, it was as a Chef and not in a true administrative function where such procedures would be common to him.

The issues are clearly set on the 19th of June invitation and 27th of June report and the Disciplinary Procedure set out with definitions included. I note that the Complainant was forthright in his admission of these allegations and they are substantial matters.

Internal Processes

I do not find fault with the investigation by the Business Excellence Manager in terms of the use of the word “found” as it was set out by the Complainant representative. It is clear to me that what is referred to here is not a finding of guilt, but a finding that there is a question to be answered and requiring a disciplinary investigation.

In any event, the law does not require perfection, but only fairness. I cannot conclude that they were unfair in their investigation, only that the final report may have misled the disciplinary officer in their final decision.

It is the case that  the Complainant admitted fully to the errors in his performance to her and her record appears correct to me. I further note, to the credit of the Complainant, that the Business Excellence Manager recorded their appreciation for the cooperation from those participating.

The Disciplinary Hearing

In examination of the General Manager, it was set out that safety was at the heart of the business and the dangers of inadequate food safety could be catastrophic leading to listeria poisoning and death in such a breach of food safety regulations. It was this witness’s evidence that the error had led to a complete lack of confidence in the Complainant and made it impossible for him to continue in the Respondent employment.

In cross-exam the Respondent  put it to this witness that Gross Misconduct was never mentioned. It was also put to the witness that although there was a potential that an error could have serious implication; this was clearly not the result.

It was confirmed that there was no recall of the tainted products and the products were sold on without issue. Whilst there had been no issues the witness was insistent that there could have been and  there is some merit in this approach, preparing food is a high trust occupation and an error revealed could be potentially damaging to the brand.

The General Manager was of the view that the actions amounted to Gross misconduct and the sanction imposed was fair and reasonable. They  further rejected any assertions the hearing amounted to sentencing.

It was put to this witness that in his dismissal letter to the Complainant that he refers specifically to the matters of gross misconduct were investigated and upheld. It was not clear that the allegations were upheld, but it was unclear as to by whom and this could not be established. It was the evidence of the documents that the disciplinary hearing decision letter was the first time Gross Misconduct was raised.

It was tentatively set out that there could have been other breaches, but this had never been raised previously and in the lack of evidence for the same I have discounted this in my deliberations. The possible  danger did not arise, and the Respondent was able to assure the EHO that there was no danger, whilst at the same time accusing the Complainant of flagrant and deliberate disregard of safety and health regulations. The Environmental Health Officer, according to the Respondent, “queried” the records on the batches. Nothing is put before to show that this matter went further, and it does not appear to be the case that there was a danger to the public and importantly there was no recall of the two products by the Respondent.

Regarding the disciplinary meeting notes, it was not as set out that the Complainant received a copy of the meeting notes for review. It appears that this was not complied or certainly could not be ascertained with clarity by the witness. It is the case of the Complainant that he did not receive these which is certainly a failing in procedures which is significant in sense of the risk faced by the Complainant of the loss of his livelihood  even if this was not in his mind, it appears to be in the mind of that chair. It would appear that the chair of that  meeting did not allow a full airing of the mitigating issues, deeming them not relevant. It was the view of the witness that the mitigation offered was not the case, i.e. that the Complainant was not under pressure due to the activities and resources available on the day, but this was not put to the Complainant.

 It  does appear that there was an over reliance on the investigation report in determining that a sanction was approved.

The witness was asked if the Complainant role had been replaced, his dismissal coming a short time after the appointment of another Head Chef and the answer was in the negative.

In evidence the witness challenged the assertion that the Complainant had been a difficult position on the day,  in terms of mitigation of the Complainant actions. This was

Appeal

In the evidence of the Head of Food, it was set out that she had heard the points of appeal on the basis that the sanction was excessive, that the Complainant had not been adequately trained, that the Complainant was under excessive pressure that led to the error after which they upheld the original sanction.

 In cross-exam it was the witness evidence that there had been a flagrant disregard for the processes in the falsification of records which led to the upholding of the original decision. The witness was satisfied as to the training received by the Respondent as sufficient and rejected the assertion that he had asked for further training on occasion and had checked this with the General Manager, but not the other, newly appointed,  Head Chef. The witness rejected the claims of being overwhelmed on the day in the absence of staff members and on being asked to create an additional dish. This the witness viewed as normal and not entirely unexpected. It seems to me that the Appeal Officer did not adequately engage with the mitigation put forward.  I note the citation of ADJ-00003869 An Employee and A Manufacturing Company where the Adjudicator set out:

 “ I am satisfied that, given the nature and extent of the Complainant's actions, which, in effect, represented 317 individual decisions on his part to engage in actions he knew to be wrong, the sanction of dismissal, cannot be considered as being inappropriate or disproportionate. In such circumstances of gross misconduct, I do not believe that length of service and/or prior performance can be considered as valid mitigation.”

Having read that decision, I am of the view the facts and circumstances are distinguished form the present case where the cited case offending actions were persistent and ongoing.

CCTV Use

I think it is important to note that the report refers to the CCTV stills and it is clear that the investigation into the error relied heavily  upon the CCTV in place.

Doolin v Data Protection Commissioner [2022] IECA 117 was cited by the Respondent as the leading case on the use of CCTV for disciplinary procedures. This decision has become the authoritative Irish precedent confirming that CCTV gathered for security cannot be used in disciplinary investigations unless employees were explicitly informed in advance. On the use of CCTV, the Respondent  admitted that it formed part of the  decision to dismiss but not in its entirety and the decision rested on other factors.

There was nothing put to me that there was an acceptance or notice to the employees of the Respondent that CCTV could be used in such a way. It seems clear that the data was used for a purpose for which it was not intended. In following Doolin I can only find that such evidence should not have formed part of the procedure, whatever weight the evidence may have been given.

That is not to say the matter would not have been investigated in the absence of CCTV and the circumstances differ from Doolin, where the behaviour of Mr Doolin would never have been discovered, but for the CCTV. There is still a question to be answered here that goes to the weight of the CCTV evidence where there was a considerable amount of other evidence. Such evidence would automatically be excluded in a criminal trial but in the present circumstances this is not necessarily the case and the facts in this case differ significantly from Doolin.

Interpreter

I note that there was an interpreter provided during the internal processes for the Complainant and that this interpreter was online. Whilst I would have no issue with such arrangements normally, in the present circumstances, I would have expected a senior employee with 17.5 years of experience and of an age where the detrimental effect of a dismissal due to Gross Misconduct would be potentially catastrophic to their reputation and career would be afforded more care than an online interpreter.

Complainant Evidence

In evidence the Complainant  explained his history in the industry in Sicily and Ireland and that he welcomed the collaboration brought by the appointment of the other Head Chef. In response to Counsel questions on the use of Kettle Machines the witness set out how different they were in process to the traditional pan processes used and how he had asked for more training. He had been shown previously but had verbally asked for more training on several occasions.

The witness explained the use of the machines and the issues at work that day post- bank holiday and staff absent, and, in his role, he had to see to other stations and assist staff with their work including assisting the staff member on the raw meat section.  He set out he was busy but tried his best on the day. The witness also set out that there has been a change in the processes since that incidence where  administrative staff attend the kitchen to record the data he admits to failing to properly record.

On the matter at hand the Complainant set out that he had failed to record the details properly and using his experience made an estimate. It was the witness evidence that he had made a genuine mistake and never thought it would cost him his job and had found it difficult to accept and that he had not even told his wife about the incident and the subsequent internal processes.

In answer to his Representative  the Complainant confirmed that no one else was interviewed as part of the investigation , he was never told it was a matter of gross misconduct and was never informed that CCTV could be used in the manner that it was used. He had, he said, taken annual leave in the interim period and was told not to worry about it while he was gone.

Mitigation

In his evidence the witness confirmed that he had found a new role some 6.5 weeks after  his dismissal but was on a reduced salary. He had been earning circa €83,000 per annum and was now salaried at circa €55,000.  He confirmed for counsel he was experiencing an ongoing loss until his retirement in 7 years.

In cross-exam the Complainant  did not deny that he had falsified the records on the day and that he had estimated the temperature contrary to procedure.  On the matter of requesting training, the Respondent rep put it to the witness that there was no record of his requesting further training. The Complainant  agreed that there was a health and safety risk, but it was never his intention to arrive at that point.

The witness agreed that taking temperatures was an everyday duty in his role as a Chef and had done so every day in his career.  The Respondent  put it to him that he was a seasoned chef, and it was concerning that he had failed to follow the procedure, to which the witness responded that he had been under pressure .

The witness was asked as to why he did not report the matter on the day it happened; his response was he did not have a chance and had no chance to speak to anyone and had been overwhelmed. This does not, however, explain why he did not report it subsequently.

Notice of Gross Misconduct

I cannot find that the Complainant was under proper notice of the allegation of Gross Misconduct and was under the impression that he had a serious failing in his performance. It would be the case that natural justice where the Complainant would lose their position in the most egregious of circumstances that the matter be emphasised with great clarity to allow him to make a full defence of himself and this has highlighted the language barrier concerned.

Kitchen Safety

It is clear to any reasonable person that safety in a commercial kitchen is of the utmost importance and that failures could damage the reputation of the enterprise for which high standards should be set not just be the business but by regulatory bodies. Of note in this instance, the products were not recalled as being dangerous to the consumer which would be expected if a real danger persisted. I was asked to draw inferences from this inconsistency, and it seems to me that something requiring summary dismissal would require a recall of product, in fact an issue requiring any other serious sanction short of summary dismissal would require a recall.

Investigation

It appears from the evidence and the submissions, that there was a very limited questioning during disciplinary meetings and no witnesses interviewed to verify the Complainant’s account in terms of the mitigations offered with the witness’s contextual explanations dismissed as in tandem with the Complainant level of English proficiency.

Conclusion

Following Looney & Co. Ltd v Looney, UD 843/1984 it is not for me to reinvestigate the internal processes it is not for me establish guilt or innocence. My responsibility is to consider what a reasonable employer in possession of the same  circumstances would have decided.

I have referenced elsewhere in this decision that the law does not require perfection, but only fairness and that  errors in a process could be corrected as the matter went on. The small error of findings in the original investigation appears to me to have a led to lack of further interrogation of the facts of the kitchen error that led to the EHO report. I find the evidence of the Complainant being overwhelmed and requesting further training credible and when faced with new processes a significant factor that should have been given more consideration at all stages.

I prefer the evidence of the Complainant  in recalling his repeated request for further training over the evidence of the Respondent, particularly when they appeared to have exercised a limited enquiry on that matter.

I am greatly swayed by the unchallenged evidence that that the processes were found to be in need of adjusting and were, in fact,  adjusted with the introduction of the admin staff recordkeeping  post event, quite significant. This appeared to have been done before the final appeal, and it would seem reasonable to have considered if changes were necessary that there was merit in the mitigation put forward by the Complainant.

It seems to me reasonable to conclude that the Complainant faced a predetermined outcome or at the very least a process without the flexibility to adjust and deal with its own flaws. For this reason, I have to find that the Complainant did not have the benefit of rigorous procedures.

On the issue of proportionality. I am swayed by the evidence of the Complainant, that was not challenged, in over 17 years of service there was no record of disciplinary or investigation of his conduct or performance. It would seem that in a scenario where there were mitigating factors and it was necessary to recall the offending products that the sanction was harsh. I am cognisant of the importance of health and safety in a commercial kitchen and the implications of a misstep in terms of human health.

I am also cognisant of the reputational damage to a commercial organisation and the implications in terms of revenue if that  reputation as a safe provider of foodstuffs was to be damaged. I do not consider those issues lightly and would not choose to make small of them. However, it does seem to me that a less onerous sanction should have been applied, in all the circumstances, short of dismissal. In this, I am conscious of the effect of such a dismissal could potentially have for his future career and earning potential which is clearly evident in his diminished earnings.

Contributory Factors

The Complainant has not been blameless in this. Whilst accepting an error had been made and it should not have been made; he did not report the matter, and it had to emerge through a third party. Mr Lowey appeared to be suggesting that there was a “convenience” in the dismissal of the Complainant where there had been a new and additional Head Chef appointed. I have seen no evidence that there was malice of forethought on the part of the Respondent in the dismissal. Nothing was set out to me that the atmosphere had become so oppressive that the Complainant  would be reluctant to report his error other than his own internal thinking.  Bearing all of this in mind and  although there is a finding here of unfair dismissal the part that the Complainant has played will have to be reflected in the redress awarded.

I am obliged by the 1977 Act to consider re-instatement and reengagement. As set out by the Respondent where they believe neither is appropriate and I  do not believe reinstatement nor re-engagement is an adequate remedy where there is a breach of trust in the original incident in circumstances where a public case has been taken, there is little hope in a successful reconciliation.

This leads me to redress and the computation of the same. The Complainant received 8 weeks’ notice pay. He  has exercised  due diligence and mitigated his losses in some way within 6.5 weeks. I therefore do not see it necessary to address that portion of the period.

The Complainant had been earning approximately €80,000 per annum and is now in receipt of a significantly reduced salary of approximately €50,000 per annum, resulting in an annual shortfall of €30,000. The Unfair Dismissals Acts 1977–2015 confine my remit to compensating actual financial loss only, and such loss must be measured within the statutory maximum period of 104 weeks.

Having considered all of the circumstances of this case, including the flawed procedures adopted by the Respondent, and more importantly the disproportionate nature of the sanction imposed, I am satisfied that an award of €40,000 represents just and equitable redress. This sum reflects the fact that the Complainant bears a significant degree of responsibility for his dismissal.

CA-00067818-001:  Unfair Dismissals Act 1977

For the reasons set out above, I am satisfied that the complaint under the Unfair Dismissals Acts 1977–2015 is well founded. I accordingly decide that the Respondent shall pay to the Complainant the sum of €40,000 in line with the Act for financial loss suffered to date and prospective  ongoing financial loss arising from the dismissal.

Fair Procedures - Gross Misconduct -Reasonable Employer Test - Proportionality of Sanction -  Contributory Conduct

Complainant

Respondent

Parties

Giorgio  Romano

AVOCA t/a AVOCA HANDWEAVERS LTD.

Representatives

Mr Kieran Lowey, BL instructed by Colleen Cleary ,Simmons and Simmons (Ireland) LLP

Aleksandra Tiilikainen IBEC

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-00067818-001

02/12/2024

The Complainant, employed as a Head Chef since 2007, was dismissed for gross misconduct on 16 August 2024. The Respondent is a large food and retail business employing approximately 1,000 staff.

The dismissal followed concerns raised in June 2024 about inaccurate chilling records for two food batches dated 4 June 2024. The Complainant accepted during the investigation that he had not taken the temperatures and that the records were inaccurate. Following a disciplinary process, in which he cited staffing pressures and denied any intent to breach procedures, the Respondent concluded the conduct amounted to gross misconduct and dismissed him. The appeal was unsuccessful and the dismissal was upheld in September 2024.

The Complainant contends that the dismissal was substantively and procedurally unfair and disproportionate given his 17 years’ service.

The Respondent denies the claim in full and maintains that the dismissal was justified

The Complainant submits that his dismissal on in August 2024, following allegations of falsifying records, deliberate misrepresentation, and disregard of safety procedures, was substantively and procedurally unfair.

He argues that the sanction of summary dismissal was wholly disproportionate to what he maintains was an isolated error in an otherwise exemplary 17‑year career with the Respondent.

He emphasises an unblemished disciplinary and performance record spanning 17 years, during which he contributed significantly to the Respondent’s food operations, including cookbook production, cooking demonstrations, and sustained loyalty during Covid‑19.

He describes himself as a valued and integral member of the business, with strong support from former senior management.

The Complainant  also highlights his age at 58 years old and that Avoca represented his entire working life in Ireland.

Events Leading to Discipline

The disciplinary process began after the Respondent received an HSE query on 11 June 2024 concerning chilling records for two batches of food from 4 June. The Complainant acknowledges an error in recording the times but denies any deliberate falsification unequivocally.

He asserts that before any disciplinary process commenced, the Respondent had already prepared a non‑conformance and corrective action report for the HSE on 14 June 2024 which:

·       Made adverse findings against him without his knowledge,

·       Concluded that false information was recorded, and

·       Recommended re‑training rather than disciplinary action, while expressly stating “there was no food safety risk.”

The Complainant maintains he was unaware of this investigation, the HSE correspondence, or the findings before attending the formal investigation meeting.

Procedural Defects

Across the investigation, disciplinary hearing, and appeals process, the Complainant alleges severe and repeated departures from fair procedures, including:

Pre‑judgment at the investigation stage

He argues that binding findings of fact were made before any disciplinary hearing, contrary to the Respondent’s own procedures which require that determinations be made only after a fair disciplinary process.

Lack of notice regarding allegations of gross misconduct

He says he was never informed that the allegations might amount to gross misconduct until the dismissal letter.

Investigation characterised as biased and incomplete

He contends that exculpatory factors—staff shortages, pressure, equipment issues, and training gaps—were ignored.

Disciplinary hearing conducted as a “sentencing exercise”

He submits that the disciplinary manager signalled that guilt was already determined and asked only for mitigation, without probing the facts or hearing witness evidence.

Notes of the disciplinary meeting were not shared before dismissal

Although the Respondent undertook to provide the notes, they were not furnished before the decision issued.

Appeal process flawed

He alleges:

·       Delay in issuing the appeal outcome,

·       Failure to address many key grounds of appeal,

·       New evidence gathered by the Respondent at appeal stage without being put to him for comment, and

·       Lack of transparency regarding who was consulted on training issues.

 Disparate treatment

A second employee referenced in internal reports as sharing responsibility for the relevant tasks was not subjected to disciplinary action.

Training, Resourcing and Systemic Issues

The Complainant argues that:

·       He had not been adequately trained on the new “kettle” equipment,

·       He had repeatedly sought further training but was rebuffed,

·       The kitchen was understaffed on the day,

·       There were no automated systems (timers, alarms) to assist with chilling compliance,

·       New monitoring procedures were implemented only after the incident, demonstrating systemic failings.

The Complainant  highlights the Respondent's own admission to the HSE that processes were inadequate, and that re‑training and increased monitoring were the correct measures ― reinforcing his view that dismissal was disproportionate.

Use of CCTV

The Complainant states that CCTV stills were relied upon in the investigation, even though:

·       His employment contract did not authorise such use of personal data,

·       He was not informed that CCTV could be used for disciplinary purposes,

·       CCTV was installed for security and safety, not performance monitoring.

The Complainant  argues that this constitutes unlawful processing under established case law in Doolin.

Complainant’s Position on Substantive Fairness

The Complainant maintains:

·       He made an honest mistake under pressure,

·       He did not intend to deceive or falsify records,

·       There was no food safety risk as confirmed by the Respondent in writing to the HSE,

·       The sanction of dismissal was entirely disproportionate,

·       His conduct fell far short of the standard required to justify summary dismissal.

The Complainant also suggests that his dismissal may have been opportunistic, given his longstanding favourable contractual terms and the appointment of an additional Head Chef shortly beforehand.

Case Law Cited by the Complainant

Doolin v Data Protection Commissioner & Our Lady’s Hospice (Court of Appeal, [2022] IECA 117; High Court [2020] IEHC 90). Used to support the argument that CCTV obtained for security purposes cannot be used for disciplinary purposes unless employees were expressly informed of this use.

AIB v Purcell ([2012] 23 ELR 189), cited for the principle that the question is not whether the WRC would dismiss, but whether it was reasonably open to the employer to do so — used here to argue that dismissal was not a reasonable response.

Cox et al., Employment Law in Ireland (2009), referenced for the general principle that dismissal requires adherence to natural justice and fair procedures notwithstanding employer discretion.

Conclusion

The Complainant asserts that the process was fundamentally flawed at every stage, that the sanction bore no relationship to the alleged wrongdoing, that key mitigating factors were ignored, and that the Respondent acted unreasonably and in breach of its own disciplinary procedures and data‑protection obligations. He therefore asks the Adjudication Officer to uphold his complaint of unfair dismissal and award full compensation.  

Background

The Respondent is a long‑established food and retail business operating multiple outlets and production facilities, employing close to 1,000 staff. The Complainant commenced work with the Respondent as a Head Chef in 2007. His employment was terminated on 16 August 2024 for gross misconduct.

On 11 June 2024, the Respondent received a communication from an Environmental Health Officer raising concerns about incorrect chilling records for two food batches dated 4 June 2024, both signed off by the Complainant. The recorded chilling times exceeded the three‑hour limit.

Following this, the Complainant was invited to an investigation meeting and advised of his right to representation. During the investigation, he admitted that he had not taken the food temperature and that the times recorded were inaccurate. An investigation report recommended proceeding to disciplinary action.

The Complainant was then invited to a disciplinary hearing. He stated he had been under pressure due to staff shortages and had not intended to breach food‑safety procedures. He also submitted a prepared statement.

In August 2024, the Respondent issued the disciplinary outcome, terminating his employment.

The Complainant appealed, but the appeal outcome and in September 2024 the Respondent upheld the dismissal.

Respondent’s Rationale for Dismissal

The Respondent argues that the dismissal arose wholly from the Complainant’s conduct, namely falsification/misrepresentation of food safety records and disregard of safety procedures. It asserts these actions constituted gross misconduct and undermined trust and confidence.

The Respondent also disputes any claim of insufficient training. The Complainant received the same kettle‑operation training as all colleagues in April 2024, delivered by two senior staff members. Management records indicated no request from the Complainant for additional training.

Given the Complainant’s managerial status, the Respondent argues he was expected to ensure compliance with food‑safety protocols and manage operational pressures appropriately.

The Respondent states that proper procedures were followed throughout, including notice of allegations, representation rights, multiple meetings, and consideration of all evidence before dismissal.

Position on Remedy

Should the Adjudication Officer find the dismissal unfair, the Respondent submits that reinstatement or re‑engagement would be wholly inappropriate due to loss of trust and the breakdown of the working relationship. The Respondent maintains that only compensation should be considered.

The Respondent also argues that the Complainant contributed entirely to his dismissal and therefore should receive no redress. On mitigation, the Respondent notes that the Complainant found new work 6.5 weeks after dismissal and submits that he must provide evidence of reasonable steps to mitigate loss.

Conclusion

The Respondent sets out  that the dismissal was substantively justified on the basis of gross misconduct relating to food‑safety record falsification, and procedurally fair; that trust had irretrievably broken down; and that reinstatement is inappropriate.

Case law is relied on to support the reasonableness of dismissal, seriousness of food‑safety breaches, breakdown of trust, limits on mitigation, and standards of procedural fairness.

Case Law Cited by the Respondent

Looney & Co. Ltd v Looney (UD 843/1984), cited to establish the “reasonable employer test”, i.e., the WRC should not substitute its own view but assess whether the employer’s response was within the range of reasonable responses.

Knox Hotel and Resort Ltd (UD 27/2004). cited to support that breaches of trust and confidence can justify summary dismissal.

Murray v Meath County Council (UD 43/1978)

Used to support the argument that where the employee contributes to dismissal, the tribunal may find no entitlement to redress.

ADJ‑00011404 (Head Chef / Catering Provider), cited to show that serious food‑safety breaches amount to gross misconduct and dismissal may be justified even for long‑serving employees.

ADJ‑00003869 (Employee v Manufacturing Company), to support the proposition that length of service and prior good performance is not valid mitigation in cases of gross misconduct

State (Irish Pharmaceutical Union) v Employment Appeals Tribunal (1986),  to emphasise natural justice and the requirement that parties have a right to be heard on remedy, particularly where reinstatement or re‑engagement is at issue.

Sheehan v Continental Administration Co. Ltd (UD858/1999), used in the context of mitigation of loss: claimants must actively seek work and cannot rely merely on registration with agencies.

ADJ‑00011755 (Welder/Fabricator) used to reinforce the need for demonstrated mitigation and to illustrate procedural considerations in unfair‑dismissal cases.

Unfair Dismissals Acts 1977–2015,

In a claim brought under the Unfair Dismissals Acts 1977–2015, the Complainant must first establish the fact of dismissal, after which the statutory presumption applies that the dismissal was unfair unless the Respondent can demonstrate substantial grounds justifying it. The Act places the burden on the employer to show both that there were fair and substantial reasons for the dismissal and that fair procedures, consistent with natural justice, were followed in arriving at that decision. This includes adherence to principles such as notifying the employee of the allegations, affording them an opportunity to respond, and ensuring an impartial and proportionate disciplinary process. Where the employer cannot discharge this burden, the dismissal will ordinarily be deemed unfair within the meaning of the Act

Complaint CA-00067818-001

This complaint was brought under section 8 of the Unfair Dismissals Act 1977. The complainant, who had more than 12 months’ service, was dismissed on 16 August 2024 for alleged gross misconduct. The complainant has sought reinstatement or compensation and confirmed that alternative employment was secured on 30 September 2024.

The facts and the circumstances in this case are largely agreed, in that the Complainant  was employed as Head Chef for 17+years, he was dismissed and there was falsification of records on the part of the Complainant.

The only issues for me to exam are if the process afforded to the Complainant was fair and that the arising sanction was, in that case, proportional.  If it is the case that the Complainant  was not afforded fair procedures and/or the sanction was disproportionate, then the final matter would then be to examine any potential redress.

The Complainant has admitted candidly that the records submitted by him in the employment as correct were not and that he knew this at the time and failed to rectify the matter. The Employer has pointed to this as a complete undermining of their trust and confidence in the Complainant  and that he flagrantly disregarded  health and safety regulations endangering others.

There is a disparity in the process where it is not shown that the Complainant was put on notice that the issue concerned was to be considered Gross Misconduct although the correspondence of the 19th of June does show that the investigation was serious and could led to his dismissal. Such warnings are, of course,  run of the mill in procedures and set out the full range of possible outcomes from warning to dismissal. I place no store that this shows prior intent on the part of the Respondent.  I am cognisant that the Complainant was in a senior role and might have had some indication in terms of the gravity of the matter, but his approach to apologise fulsomely in writing expressing such regret would contradict that he understood the procedures and consequences as fully as he might. I am of the opinion, that despite the senior role held, it was as a Chef and not in a true administrative function where such procedures would be common to him.

The issues are clearly set on the 19th of June invitation and 27th of June report and the Disciplinary Procedure set out with definitions included. I note that the Complainant was forthright in his admission of these allegations and they are substantial matters.

Internal Processes

I do not find fault with the investigation by the Business Excellence Manager in terms of the use of the word “found” as it was set out by the Complainant representative. It is clear to me that what is referred to here is not a finding of guilt, but a finding that there is a question to be answered and requiring a disciplinary investigation.

In any event, the law does not require perfection, but only fairness. I cannot conclude that they were unfair in their investigation, only that the final report may have misled the disciplinary officer in their final decision.

It is the case that  the Complainant admitted fully to the errors in his performance to her and her record appears correct to me. I further note, to the credit of the Complainant, that the Business Excellence Manager recorded their appreciation for the cooperation from those participating.

The Disciplinary Hearing

In examination of the General Manager, it was set out that safety was at the heart of the business and the dangers of inadequate food safety could be catastrophic leading to listeria poisoning and death in such a breach of food safety regulations. It was this witness’s evidence that the error had led to a complete lack of confidence in the Complainant and made it impossible for him to continue in the Respondent employment.

In cross-exam the Respondent  put it to this witness that Gross Misconduct was never mentioned. It was also put to the witness that although there was a potential that an error could have serious implication; this was clearly not the result.

It was confirmed that there was no recall of the tainted products and the products were sold on without issue. Whilst there had been no issues the witness was insistent that there could have been and  there is some merit in this approach, preparing food is a high trust occupation and an error revealed could be potentially damaging to the brand.

The General Manager was of the view that the actions amounted to Gross misconduct and the sanction imposed was fair and reasonable. They  further rejected any assertions the hearing amounted to sentencing.

It was put to this witness that in his dismissal letter to the Complainant that he refers specifically to the matters of gross misconduct were investigated and upheld. It was not clear that the allegations were upheld, but it was unclear as to by whom and this could not be established. It was the evidence of the documents that the disciplinary hearing decision letter was the first time Gross Misconduct was raised.

It was tentatively set out that there could have been other breaches, but this had never been raised previously and in the lack of evidence for the same I have discounted this in my deliberations. The possible  danger did not arise, and the Respondent was able to assure the EHO that there was no danger, whilst at the same time accusing the Complainant of flagrant and deliberate disregard of safety and health regulations. The Environmental Health Officer, according to the Respondent, “queried” the records on the batches. Nothing is put before to show that this matter went further, and it does not appear to be the case that there was a danger to the public and importantly there was no recall of the two products by the Respondent.

Regarding the disciplinary meeting notes, it was not as set out that the Complainant received a copy of the meeting notes for review. It appears that this was not complied or certainly could not be ascertained with clarity by the witness. It is the case of the Complainant that he did not receive these which is certainly a failing in procedures which is significant in sense of the risk faced by the Complainant of the loss of his livelihood  even if this was not in his mind, it appears to be in the mind of that chair. It would appear that the chair of that  meeting did not allow a full airing of the mitigating issues, deeming them not relevant. It was the view of the witness that the mitigation offered was not the case, i.e. that the Complainant was not under pressure due to the activities and resources available on the day, but this was not put to the Complainant.

 It  does appear that there was an over reliance on the investigation report in determining that a sanction was approved.

The witness was asked if the Complainant role had been replaced, his dismissal coming a short time after the appointment of another Head Chef and the answer was in the negative.

In evidence the witness challenged the assertion that the Complainant had been a difficult position on the day,  in terms of mitigation of the Complainant actions. This was

Appeal

In the evidence of the Head of Food, it was set out that she had heard the points of appeal on the basis that the sanction was excessive, that the Complainant had not been adequately trained, that the Complainant was under excessive pressure that led to the error after which they upheld the original sanction.

 In cross-exam it was the witness evidence that there had been a flagrant disregard for the processes in the falsification of records which led to the upholding of the original decision. The witness was satisfied as to the training received by the Respondent as sufficient and rejected the assertion that he had asked for further training on occasion and had checked this with the General Manager, but not the other, newly appointed,  Head Chef. The witness rejected the claims of being overwhelmed on the day in the absence of staff members and on being asked to create an additional dish. This the witness viewed as normal and not entirely unexpected. It seems to me that the Appeal Officer did not adequately engage with the mitigation put forward.  I note the citation of ADJ-00003869 An Employee and A Manufacturing Company where the Adjudicator set out:

 “ I am satisfied that, given the nature and extent of the Complainant's actions, which, in effect, represented 317 individual decisions on his part to engage in actions he knew to be wrong, the sanction of dismissal, cannot be considered as being inappropriate or disproportionate. In such circumstances of gross misconduct, I do not believe that length of service and/or prior performance can be considered as valid mitigation.”

Having read that decision, I am of the view the facts and circumstances are distinguished form the present case where the cited case offending actions were persistent and ongoing.

CCTV Use

I think it is important to note that the report refers to the CCTV stills and it is clear that the investigation into the error relied heavily  upon the CCTV in place.

Doolin v Data Protection Commissioner [2022] IECA 117 was cited by the Respondent as the leading case on the use of CCTV for disciplinary procedures. This decision has become the authoritative Irish precedent confirming that CCTV gathered for security cannot be used in disciplinary investigations unless employees were explicitly informed in advance. On the use of CCTV, the Respondent  admitted that it formed part of the  decision to dismiss but not in its entirety and the decision rested on other factors.

There was nothing put to me that there was an acceptance or notice to the employees of the Respondent that CCTV could be used in such a way. It seems clear that the data was used for a purpose for which it was not intended. In following Doolin I can only find that such evidence should not have formed part of the procedure, whatever weight the evidence may have been given.

That is not to say the matter would not have been investigated in the absence of CCTV and the circumstances differ from Doolin, where the behaviour of Mr Doolin would never have been discovered, but for the CCTV. There is still a question to be answered here that goes to the weight of the CCTV evidence where there was a considerable amount of other evidence. Such evidence would automatically be excluded in a criminal trial but in the present circumstances this is not necessarily the case and the facts in this case differ significantly from Doolin.

Interpreter

I note that there was an interpreter provided during the internal processes for the Complainant and that this interpreter was online. Whilst I would have no issue with such arrangements normally, in the present circumstances, I would have expected a senior employee with 17.5 years of experience and of an age where the detrimental effect of a dismissal due to Gross Misconduct would be potentially catastrophic to their reputation and career would be afforded more care than an online interpreter.

Complainant Evidence

In evidence the Complainant  explained his history in the industry in Sicily and Ireland and that he welcomed the collaboration brought by the appointment of the other Head Chef. In response to Counsel questions on the use of Kettle Machines the witness set out how different they were in process to the traditional pan processes used and how he had asked for more training. He had been shown previously but had verbally asked for more training on several occasions.

The witness explained the use of the machines and the issues at work that day post- bank holiday and staff absent, and, in his role, he had to see to other stations and assist staff with their work including assisting the staff member on the raw meat section.  He set out he was busy but tried his best on the day. The witness also set out that there has been a change in the processes since that incidence where  administrative staff attend the kitchen to record the data he admits to failing to properly record.

On the matter at hand the Complainant set out that he had failed to record the details properly and using his experience made an estimate. It was the witness evidence that he had made a genuine mistake and never thought it would cost him his job and had found it difficult to accept and that he had not even told his wife about the incident and the subsequent internal processes.

In answer to his Representative  the Complainant confirmed that no one else was interviewed as part of the investigation , he was never told it was a matter of gross misconduct and was never informed that CCTV could be used in the manner that it was used. He had, he said, taken annual leave in the interim period and was told not to worry about it while he was gone.

Mitigation

In his evidence the witness confirmed that he had found a new role some 6.5 weeks after  his dismissal but was on a reduced salary. He had been earning circa €83,000 per annum and was now salaried at circa €55,000.  He confirmed for counsel he was experiencing an ongoing loss until his retirement in 7 years.

In cross-exam the Complainant  did not deny that he had falsified the records on the day and that he had estimated the temperature contrary to procedure.  On the matter of requesting training, the Respondent rep put it to the witness that there was no record of his requesting further training. The Complainant  agreed that there was a health and safety risk, but it was never his intention to arrive at that point.

The witness agreed that taking temperatures was an everyday duty in his role as a Chef and had done so every day in his career.  The Respondent  put it to him that he was a seasoned chef, and it was concerning that he had failed to follow the procedure, to which the witness responded that he had been under pressure .

The witness was asked as to why he did not report the matter on the day it happened; his response was he did not have a chance and had no chance to speak to anyone and had been overwhelmed. This does not, however, explain why he did not report it subsequently.

Notice of Gross Misconduct

I cannot find that the Complainant was under proper notice of the allegation of Gross Misconduct and was under the impression that he had a serious failing in his performance. It would be the case that natural justice where the Complainant would lose their position in the most egregious of circumstances that the matter be emphasised with great clarity to allow him to make a full defence of himself and this has highlighted the language barrier concerned.

Kitchen Safety

It is clear to any reasonable person that safety in a commercial kitchen is of the utmost importance and that failures could damage the reputation of the enterprise for which high standards should be set not just be the business but by regulatory bodies. Of note in this instance, the products were not recalled as being dangerous to the consumer which would be expected if a real danger persisted. I was asked to draw inferences from this inconsistency, and it seems to me that something requiring summary dismissal would require a recall of product, in fact an issue requiring any other serious sanction short of summary dismissal would require a recall.

Investigation

It appears from the evidence and the submissions, that there was a very limited questioning during disciplinary meetings and no witnesses interviewed to verify the Complainant’s account in terms of the mitigations offered with the witness’s contextual explanations dismissed as in tandem with the Complainant level of English proficiency.

Conclusion

Following Looney & Co. Ltd v Looney, UD 843/1984 it is not for me to reinvestigate the internal processes it is not for me establish guilt or innocence. My responsibility is to consider what a reasonable employer in possession of the same  circumstances would have decided.

I have referenced elsewhere in this decision that the law does not require perfection, but only fairness and that  errors in a process could be corrected as the matter went on. The small error of findings in the original investigation appears to me to have a led to lack of further interrogation of the facts of the kitchen error that led to the EHO report. I find the evidence of the Complainant being overwhelmed and requesting further training credible and when faced with new processes a significant factor that should have been given more consideration at all stages.

I prefer the evidence of the Complainant  in recalling his repeated request for further training over the evidence of the Respondent, particularly when they appeared to have exercised a limited enquiry on that matter.

I am greatly swayed by the unchallenged evidence that that the processes were found to be in need of adjusting and were, in fact,  adjusted with the introduction of the admin staff recordkeeping  post event, quite significant. This appeared to have been done before the final appeal, and it would seem reasonable to have considered if changes were necessary that there was merit in the mitigation put forward by the Complainant.

It seems to me reasonable to conclude that the Complainant faced a predetermined outcome or at the very least a process without the flexibility to adjust and deal with its own flaws. For this reason, I have to find that the Complainant did not have the benefit of rigorous procedures.

On the issue of proportionality. I am swayed by the evidence of the Complainant, that was not challenged, in over 17 years of service there was no record of disciplinary or investigation of his conduct or performance. It would seem that in a scenario where there were mitigating factors and it was necessary to recall the offending products that the sanction was harsh. I am cognisant of the importance of health and safety in a commercial kitchen and the implications of a misstep in terms of human health.

I am also cognisant of the reputational damage to a commercial organisation and the implications in terms of revenue if that  reputation as a safe provider of foodstuffs was to be damaged. I do not consider those issues lightly and would not choose to make small of them. However, it does seem to me that a less onerous sanction should have been applied, in all the circumstances, short of dismissal. In this, I am conscious of the effect of such a dismissal could potentially have for his future career and earning potential which is clearly evident in his diminished earnings.

Contributory Factors

The Complainant has not been blameless in this. Whilst accepting an error had been made and it should not have been made; he did not report the matter, and it had to emerge through a third party. Mr Lowey appeared to be suggesting that there was a “convenience” in the dismissal of the Complainant where there had been a new and additional Head Chef appointed. I have seen no evidence that there was malice of forethought on the part of the Respondent in the dismissal. Nothing was set out to me that the atmosphere had become so oppressive that the Complainant  would be reluctant to report his error other than his own internal thinking.  Bearing all of this in mind and  although there is a finding here of unfair dismissal the part that the Complainant has played will have to be reflected in the redress awarded.

I am obliged by the 1977 Act to consider re-instatement and reengagement. As set out by the Respondent where they believe neither is appropriate and I  do not believe reinstatement nor re-engagement is an adequate remedy where there is a breach of trust in the original incident in circumstances where a public case has been taken, there is little hope in a successful reconciliation.

This leads me to redress and the computation of the same. The Complainant received 8 weeks’ notice pay. He  has exercised  due diligence and mitigated his losses in some way within 6.5 weeks. I therefore do not see it necessary to address that portion of the period.

The Complainant had been earning approximately €80,000 per annum and is now in receipt of a significantly reduced salary of approximately €50,000 per annum, resulting in an annual shortfall of €30,000. The Unfair Dismissals Acts 1977–2015 confine my remit to compensating actual financial loss only, and such loss must be measured within the statutory maximum period of 104 weeks.

Having considered all of the circumstances of this case, including the flawed procedures adopted by the Respondent, and more importantly the disproportionate nature of the sanction imposed, I am satisfied that an award of €40,000 represents just and equitable redress. This sum reflects the fact that the Complainant bears a significant degree of responsibility for his dismissal.

CA-00067818-001:  Unfair Dismissals Act 1977

For the reasons set out above, I am satisfied that the complaint under the Unfair Dismissals Acts 1977–2015 is well founded. I accordingly decide that the Respondent shall pay to the Complainant the sum of €40,000 in line with the Act for financial loss suffered to date and prospective  ongoing financial loss arising from the dismissal.

Fair Procedures - Gross Misconduct -Reasonable Employer Test - Proportionality of Sanction -  Contributory Conduct