Complainant

Respondent

Parties

Graham  Reidy         

Musgrave Limited T/A Musgrave Retail Partners Ireland

Representatives

Grainne O’Donovan Douglas Law Solicitors LLP/Cara Jane Walsh

Sophie Crosbie IBEC

Act

Complaint Reference No.

Date of Receipt

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

CA-00057928-001

27/07/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00057928-003

27/07/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00057928-004

27/07/2023

The Respondent stated that it acted in accordance with Section 6(4) of the Act and terminated the Complainant’s employment because of gross misconduct.

On the 23rd of March 2022 the Complainant lodged an official grievance against his manager, alleging that he harassed and bullied him.

The Company followed diligently fair procedures and that hearing took place on the 31st of March 2022.  The Complainant alleged that the transport manager bullied and victimised him by answering the phone abruptly and rostering him when the Complainant had prior arrangements and also gave him less shifts, contacted him on his days off and was difficult about approving his holiday leave.

The hearing resumed on the 1st April 2022 and the Complainant stated that he was suffering from work related stress, that he was attending counselling and that he wanted to withdraw his grievance. He confirmed that in writing on the 4th of April 2022.

The allegations that the Complainant made were not withdrawn, he withdrew from the formal grievance process. As the matters complained about were very serious the Respondent continued with their investigation into the allegations raised. The Complainant was asked to attend a meeting on the 20th of May 2022. He replied that he did not wish to proceed with a formal complaint but wanted the Respondent to note what he had raised.

The Respondent was asked on the 3rd of August 2022 to attend at a meeting on the 9th of August 2022 about the serious matters he raised.  On the 4th of August he replied and stated he didn’t think his attendance was necessary and he wanted to put these issues behind him. The Respondent allege that he was advised to attend and in his absence the hearing would proceed. The Complainant on some conditions stated he would attend. That required for the meeting to be rescheduled for the 6th of September 2022. The Complainant contacted the Respondent on the 29th of August 2022 to say he would not be attending.

The Respondent allege that the Complainant was on unauthorised leave since the 10th of May 2022 and had failed to submit any medical certificate for the duration of his absence up to October 2022.

The Complainant states he was unfairly dismissed and in his complaint form stated:

I had an accident, during the course of my employment with the Respondent, on 19th May 2019 and was severely injured. I had periods of certified sick leave where I was unable to work. I was accommodated on light duties for approximately 6 weeks in or around June 2022. I was then informed that I would 'have to go' if I could not perform full duties. Other employees are accommodated. I subsequently again went on sick leave and was marked as 'sick' on the roster. I was given a purported warning, in November 2022, for alleged 'unauthorised absence when the Respondent knew that I was on sick leave. My employment was terminated on 30th January 2023 following a purported investigation into alleged vexatious complaints. I was victimised for making a complaint. I was also victimised for taking legal action against the company in respect of the workplace accident. The company failed to reasonably accommodate me and ultimately unlawfully terminated my employment on 30th January 2023. I wish to be re-instated into my position. Full and detailed Submissions will be furnished in due course

He was on medical certified sick leave because of injuries sustained in a workplace accident which occurred during his employment with the Respondent in May 2019.

He alleges that he was subjected to a disciplinary investigation, while he was on sick leave, in relation to alleged vexatious complaints made by him concerning a manager. The Complainant alleges that the company failed to inquire, or ascertain, whether he was fit to engage in any the investigation process. He alleges that he was subjected to disciplinary action which resulted in a finding of gross misconduct against him and that his employment was unfairly and unlawfully terminated. He appealed against the decision and the decision to terminate his employment was upheld.

He alleges that he was completely denied fair procedures and due process and that there was a disregard for the fact that he was on sick leave.  

The Complainant stated that the procedures appear at face value to be fair but were not. The process was predetermined and that was to dismiss this employee. The complaint had in fact been withdrawn yet gave rise to a decision that it was vexatious and constituted gross misconduct because it was about damaging his manager’s reputation. The Complainant was not given the right to cross examine and question his accusers. His explanation about why he raised the complaint against his manager was given no weight. The decision maker failed to reason why the nature of a vexatious complaint justified summary dismissal. The right to summarily dismiss must be based on substantial grounds and those grounds do not exist in this case. The decision was not reasonable and was disproportionate. The Respondent failed to consider any other sanction other than summary dismissal. The Employer has failed to justify that this was a fair dismissal.

The Complainant has a disability and the matters before the Adjudicator are in time as the Respondent failed up to the date of cessation to engage in a proper assessment of the employees needs and how he should be reasonably accommodated as other employees had been and continued to be.

The claim by Mr Graham Reidy against his former employer, Musgrave Group Plc is brought under section 8 of the Unfair Dismissals Act, 1977 and section 77 of the Employment Equality Act, 1998. In his complaint form to the WRC, the Complainant alleges that the Respondent “unfairly and unlawfully” terminated his employment on the grounds of gross misconduct, in breach of their policies. Furthermore, the Complainant alleges that he was discriminated against by reason of a disability in conditions of his employment, suffered victimisation (which was withdrawn), and was not provided reasonable accommodation. The Respondent refutes these claims in their entirety and submits that the Complainant was dismissed from his employment on the grounds of gross misconduct, following a thorough process undertaken by the Respondent to ensure maximum fairness and transparency, in accordance with fair procedures and natural justice. In addition, it is the Respondents firm position that the Complainant has failed in his duty to establish a prima facia case of discrimination, as he has not alleged any less favourable treatment within the cognisable period of the claim, nor has he provided any relevant comparator nor any causal link between any alleged mistreatment, and his disability. The Respondent respectfully requests that the complaint fails.

I note in Redmond on Dismissal Law 3rd Ed:

[16.10]. Dishonesty, no less than ‘misconduct’, is not a term of art. The phrase covers a multitude of activities from wrongs which are criminal in character, such as theft, embezzlement, industrial espionage and falsification of company records, to wrongs comprising untruths, misleading statements and so on. An act of dishonesty ruptures trust. The UK EAT takes a two-stage approach to dishonesty. First, it must be decided whether according to the ordinary standards of reasonable and honest people what was done was dishonest. If so, then second, consideration must be given to whether the person concerned must have realised that what he or she was doing was by those standards dishonest.[17]

[16.11]. It is not for the employer, nor the WRC, to establish the guilt or innocence of the employee. The WRC will look to see whether there are reasonable grounds to sustain the employer’s suspicion that an employee has acted dishonestly. There is no question of establishing mens rea. In Looney and Co Ltd v Looney[18] the EAT summarised as follows:

‘It is not for the EAT to seek to establish the guilt or innocence of the claimant nor is it for the EAT to indicate or consider whether we in the employer’s position would have acted as it did in its investigation or concluded as it did or decided as it did, as to do so would be to substitute our own mind and decisions for that of the employer. Our responsibility is to consider against the facts what a reasonable employer in his position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s actions and decision are to be judged.’

[16.12]. Relevant considerations in assessing the employer’s reasonableness may include whether the employee’s behaviour was deliberate, whether the employer delayed its investigation,[19] whether the employee attempted to cover up the conduct, or denied it, or attempted to change his story during the employer’s investigation, whether the employer’s rules, expressed in the contract of employment or otherwise, adverted to the wrong in question so that the employee knew that what he was doing was a disciplinary matter, whether the employee was unable to explain his behaviour,[20] or did not immediately refute an allegation of dishonesty when put to him by his employer.[21]

The Complainant’s first disciplinary warning related to the following:

Dear Graham, As you are aware you have been absent from work since the 10th May 2022. I advised in a letter to you on the 20th May that if you were not fit to resume your full normal duties due to absence then you should remain absent ensuring compliance with the Company’s Attendance Policy and Procedures. However, should it be the case that you are in a position to resume your full normal duties then please supply medical certification to reflect this also. (see copy of this letter attached). Our records show that the last medical cert that the company received from you was on the 16th May 2022, this cert was for the period of the 10th – 23rd May 2022. Medical certs should be submitted on a weekly basis

The following email from the Complainant details the allegation of bullying made against his manager and then the withdrawal of that complaint and this is dated the 4th of April 2022.

Hi Mr ONeill

My name is Graham Reidy. I am a driver in the Cork depot. I'm sure you are aware of my ongoing strive but in case your not I will enlighten you briefly. In May 2019 I had an accident while making a delivery in Supervalu in Bandon Cork . I spent four months out of work because of it . I returned to work in September of the same year on full duty but found the pulling and dragging aspect of the job was hard to bare . I went to my doctor and he advised me to change things at work if possible and he would send me to a specialist for further inspection. On the 17th of October I called to my transport manager Vincent o Sullivans office to have a chat about this matter and to give him the letter of recommendation from my doctor. I walked into his office told him why I was there and he immediately shot me down. I carried on as much as I could doing swaps to avoid deliverys as much as I could as the discomfort was getting harder to bare . From then to the 15th of June 2021 I called to my managers office many times for help with this matter and had letters of recommendation from my doctor each time and I was just dismissed. I couldn't bare it any longer on the 15th of June I called to my manager Vincent o Sullivan with another letter and he told me he wouldn't be reducing my duties and he put me out sick .I have been to several doctors and orthopaedic specialists and I'm still going to physio and having ongoing tests ect.

On Monday the 14th of March I returned to work on light duties to be reviewed on the 2nd of May .

Since then my manager has continued to be extremely awkward taking shifts off me not letting me use hoildays if I miss a day's work over an appointment rostering me work clashing with appointments and he would be aware of the appointment the week previous. I was told at the meeting that I had with Vincent O Sullivan and Marion Cotter for my return to work that my appointments would be accommodated and the company would help me to get back to full health.

This couldn't be further from the truth. I lodged a bullying and victimisation case last week against my transport manager but after giving it a lot of taught I decided to drop it as I'm currently suffering with my mental health enough because of him and this adding to it would have just made it worse. The reason for this email mainly is me asking you for help as id like be treated fairly so as I can do my job and go home to my family with a resonable weeks wages. I have contacted HR and senior management in relation to this matter and I have gotten no satisfaction what so ever . I would like to thank you for reading my email and hope you can help me.

As a fact the allegation of bullying was withdrawn.

The issues that now arise are:

1.       Was the complaint malicious or knowingly false.

2.       Did the employer respond proportionately and procedurally fairly.

The reason for the dismissal are detailed in the following:

30th January 2023 Re: Disciplinary Hearing Outcome Dear Graham, I am writing to you to inform you of the outcome of our meeting of the 16th January 2023, this meeting was also attended by Eimear Walsh (note taker), and Paul Lynch, your representative. The purpose of this meeting was outlined to you in my letter of the 21st December 2022, (Appendix I), this meeting was due to take place on the 9th January 2023, but at your request it was re-scheduled to the 16th January 2023, as you advised that you needed more time to organise representation. (Appendix II), you confirmed receipt of these letters and the disciplinary policy. I explained that this was a disciplinary hearing to give you an opportunity to respond to the following conclusions in the investigation report: · The allegations by Graham Reidy (GR) in either of his complaints against Vince O’Sullivan (VO’S) are baseless and are not upheld for the following reasons: o GR didn’t provide any evidence to support his complaint. o GR declined to take part in the company investigation. o VO’S strongly disputed the allegation. · GR endeavoured to frustrate the investigation process following his allegations against VO’S. On the first occasion GR withdrew the complaint during the course of the investigation, and on the second occasion GR failed to attend meetings when required in line with the company’s policies and procedures. · GR raised allegations against VO’S on two occasions, with both VO’S direct manager and his most senior manager (Director of Transport Operations). GR’s actions by raising the allegations, then withdrawing the allegations and not participating in the investigation process were done with the purpose of damaging VO’S reputation within the business. · I have therefore concluded that the complaints raised were vexatious complaints. I have attached the notes taken at our meeting on the 16th January, (Appendix III), and having taken the time to fully consider all matters, including the details of the investigation, your responses to the conclusions in the report and the documents that you provided at the meeting, I now wish to comment and respond as follows: · The investigation was conducted in line with natural justice and fair procedures, while noting that you did not participate in the process nor comment on the draft investigation report. · Your actions are not those expected of an employee of the company or in line with the company’s policies and procedures. · I believe that the relationship between you, the company and your manager has irrevocably broken down. · I note that you were issued with a written warning on the 11th of November 2022 for failure to have regard for company absence procedures. I conclude that your actions are that of gross misconduct and under the company’s policies and procedures gross misconduct is conduct so serious as to sunder the employment contract. Having taken all matters into consideration I have decided to impose the discipline of summary dismissal. The effective termination date of your contract of employment is the date of this letter. Please note any outstanding annual leave will be paid in final pay from the company. Please return any Company property. Your P45 will be available at www.revenue.ie. You have the right to appeal this decision within 10 days from the date of this letter. If you decide to do so, please forward in writing the reasons for your appeal to Marion Cotter, marion.cotter@musgrave.ie and the company will organise an appropriate person to hear your appeal. Yours sincerely, _____________ Michael O’Donovan

In law a vexatious complaint has a precise meaning:

I note as cited in Delaney and McGrath that the Superior Courts have clarified when claims in the courts should be dismissed as misconceived:

Basis on which the Jurisdiction Will Be Exercised

16-06

It is well-established that the jurisdiction conferred by Order 19, rule 28 is exercisable by reference to the pleadings only. In McCabe v Harding11 O'Higgins CJ stressed that, in order for rule 28 to apply, “vexation or frivolity must appear from the pleadings alone”, a point that was reiterated by Costello J in Barry v Buckley,12 who stated that “the court can only make an order under this rule when a pleading discloses no reasonable cause of action on its face”. This basic principle was reaffirmed by Costello J in D.K. v King,13 where he stated that rule 28 only applies where it can be shown that the text of the plaintiff’s summons or statement of claim discloses no reasonable cause of action or that the action is frivolous or vexatious. So, for the purposes of considering whether to accede to an application based on rule 28, the court should consider the pleadings14 only, ignoring any affidavit evidence filed,15 and further must proceed on the basis that any statements of fact contained in the pleading sought to be struck out are true and can be proved by the party.16 Clarke J made it clear in Salthill Properties Ltd v Royal Bank of Scotland plc17 that “the court must accept the facts as asserted in the plaintiff’s claim, for if the facts so asserted are such that they would, if true, give rise to a cause of action then the proceedings do disclose a potentially valid claim.” As Baker J stated in Wilkinson v Ardbrook Homes Ltd,18 the approach of the court should be “to ask whether the plaintiff could possibly succeed on the case as pleaded and in the light of the facts asserted, and only if it is satisfied that a plaintiff could not possibly establish those facts, or could not possibly succeed on the pleadings, should the proceedings be struck out.”

It is alleged in this decision that the motive in making the complaint was:

· GR raised allegations against VO’S on two occasions, with both VO’S direct manager and his most senior manager (Director of Transport Operations). GR’s actions by raising the  allegations, then withdrawing the allegations and not participating in the investigation process were done with the purpose of damaging VO’S reputation within the business. · I have therefore concluded that the complaints raised were vexatious complaints

The ordinary meaning of the work vexatious is:

Something that vexes and in law something that is instituted without sufficient grounds. (Collins Dictionary)

It is alleged that the intent of this vexatious complaint was to damage the reputation of the manager with his superiors.

The question arises when a complaint that is withdrawn; however, subsequently investigated and found to be vexatious and in turn determined to be an act of malice, made to damage the reputation of a manager, does that conclusion amount to gross misconduct.

The clear danger in arriving at this conclusion is the underlying risk to an employee who makes a complaint and if found to be vexatious and without merit, that misconceived complaint would justify a sanction. If not the fact of making a vexatious complaint was the reason for the sanction but rather the motive or a motive attributed to the Complainant, that also raises serious questions about the right to raise a workplace grievance.

I note in Redmond on Dismissal Law that principal the reason for the decision must be clear:

1) Identifying the employer’s reason

[13.03]. The first step in assessing fairness is to isolate the employer’s reason for dismissal – or the principal reason if there is more than one. In Abernethy v Mott Hay & Anderson,[2] Cairns LJ described this in the following terms:

‘A reason for the dismissal of an employee is a set of facts known to the employer, or it may be a set of beliefs held by him, which cause him to dismiss the employee.’[3]

It is not necessary for the reason to be correctly labelled at the time. In the same case, Lord Denning MR declared that:

‘the reason shown for dismissal must be the principal reason which operated on the employer’s mind.’[4]

The principal reason would appear to be the conclusion that the purpose of the complaint was to damage the reputation of his manager.

I note that the Labour Court in DHL Express (Ireland) Ltd v Michael Coughlan UDD1738 considered what the threshold for gross misconduct should be:

Gross Misconduct?

The 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 BredinM160/1978 (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.’

Award

Having regard to the totality of evidence adduced by the Parties at the hearing, including the Respondent’s evidence in relation to his loss to date attributable to his dismissal and his efforts to mitigate that loss, the Court awards the Respondent €72,042.88 by way of compensation, being the equivalent of 104 weeks’ remuneration. As the award is made by way of compensation for loss of earnings it is subject to income tax.

A grievance process is a confidential process and attracts a presumption of an absence of no malice in relation to raising a grievance and the contents of that grievance. The burden of proving malice shifts to the Employer who must prove express malice to negative the presumption. In other words, rejecting the complaint because it is vexatious and denied is not enough. Where an employer fails to establish on the balance of probabilities that the complaint was made in bad faith, that the Complainant had knowledge of its falsity and based on evidence had an improper motive, then that burden is not discharged, and the presumption is not negatived. It is a very high threshold. The Respondent has not detailed the evidence to meet that high threshold to displace the presumption of an absence of no malice and how on the facts in contrast to interpretation,  that the employee’s complaint that was withdrawn prior to the investigation concluding , was in fact malicious.

The Respondent has argued that the Complainant failed to engage in their investigation about his allegations made against his manager. On balance he should have engaged in that process. I note he stated he was not fit to attend initially.

The Employer relies on the band of reasonableness test. There was a written warning in place for unauthorised absence:

I believe that the relationship between you, the company and your manager has irrevocably broken down. · I note that you were issued with a written warning on the 11th of November 2022 for failure to have regard for company absence procedures. I conclude that your actions are that of gross misconduct and under the company’s policies and procedures gross misconduct is conduct so serious as to sunder the employment contract. Having taken all matters into consideration I have decided to impose the discipline of summary dismissal. The effective termination date of your contract of employment is the date of this letter

The Employer has relied on the procedures that it followed arguing that they were fair and a reasoned decision was made that was proportionate. They rely on the well settled principle that it is not up to this tribunal to decide the matter on what it considers to be fair and that the test to be applied is the well settled band of reasonableness test. The key decision makers in the process gave evidence and gave their reasons why the decision to dismiss was made and an appeal subsequently was not upheld and the decision to dismiss was affirmed. Both the investigation found that the Complainant had made a vexatious complaint, and it was made to damage the reputation of his manager and on appeal there was no reason to displace that finding. That finding of making a vexatious complaint constituted gross misconduct and gave rise to the decision to summarily dismiss.

The Complainant has argued that the process was unreasonable and the sanction disproportionate. The Respondent failed to consider a lesser sanction. The procedures followed were not fair and the right to cross examine his accusers was denied him.

In The Governor and Company of Bank of Ireland v James Reilly [2015] IEHC 241, the Court referenced the relevant statutory provision:

Legislation

37. Insofar as relevant to these proceedings, the Unfair Dismissals Act 1977 (as amended) 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...

(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:...

(b) the conduct of the employee,...

(6) In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.

(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 rights commissioner, the Tribunal or the Circuit Court, as the case may be, considers it appropriate to do so—

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

And:

38. 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.

And:

65. It will be seen from the express wording of s. 7 that the concept of the conduct of the employee contributing to the dismissal is confined to situations where the court considers that compensation is the appropriate remedy. Thus, in McCabe v. Lisney (Unreported, High Court, 16th March, 1981) and Carney v. Balkan Tours [1997] 1 I.R. 153, the court was in each case concerned with a reduction in the award of compensation having regard to the extent of the employee’s contribution to the dismissal. It would of course be unreal to suggest that the court could not have regard to the conduct of the employee in considering in a general sense whether the remedies of re-instatement or re-engagement were appropriate. However, in my view, it is equally true that the mere fact that the employee may have been guilty of some degree of misconduct, even if that were felt to have contributed to the dismissal, cannot of itself preclude the possibility of those remedies being invoked. At the end of the day, the court has to grant the remedy which will do justice between the parties.

66. I have already concluded that the bank’s conduct in this case was unreasonable and disproportionate. I would add to that by saying that the manner in which it predetermined and manipulated the entire process from the outset reflects little credit on it and visited a very grave injustice on Mr. Reilly.

67. In my view, an award of compensation would fall far short of providing adequate redress in this case and the only appropriate remedy is re-instatement.

I have concluded that on the facts when the Complainant withdrew his complaint and then to proceed with an investigation that found his complaint to be vexatious and constituted gross misconduct was entirely unreasonable and disproportionate. The alternative explanation provided by the Complainant that he had a difficult relationship with his manager was not considered. A grievance may have no merit or be misconceived that does not make it malicious. The threshold to find that the complaint was malicious is a very high one and particularly to maintain that was the case when the complaint was in fact withdrawn before the investigation concluded cannot be justified.

The Respondent has argued even if the Adjudicator was to find against the Respondent the Complainant should receive no redress as he significantly contributed to the decision to dismiss him. In his complaint form the Complainant has selected all 3 available redress options open to the Adjudicator and has also made extensive submissions on continuing financial loss, his mitigation of loss and his difficulty to obtain a comparable role. The Respondent has argued that he has minimal loss having regard to his prior earnings over several years and absence.

The Act states the following concerning redress:

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

(a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or

(c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances, or

(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances.

I find in these circumstances that to award compensation would not be a just remedy. As I have found that the employer has not established substantial grounds to dismiss him the remaining remedies open to me are reinstatement or reengagement.

I note in Redmond on Dismissal Law:

[24.12]. Re-engagement, on the other hand, may be in a different job provided it is comparable to the old one or is otherwise suitable.[15] This remedy provides the WRC (or Labour Court) with considerable latitude. The stated terms of re-engagement, if sufficiently wide, could in effect amount to reinstatement.

The employee is a truck driver and does not hold a senior role in the company and there are number of roles that would become available in the course of a year having regard to such a large pool of drivers employed by the Respondent. On the facts of this case, I find that re-engagement is the just remedy and order that the reengagement to be effective from the 1st of January 2025 based on his contractual terms and conditions of employment prior to dismissal.

Unfair Dismissal Claim CA-00057928-001

I have concluded that on the facts when the Complainant withdrew his complaint and then to proceed with an investigation that found his complaint to be vexatious and constituted gross misconduct was entirely unreasonable and disproportionate. The alternative explanation provided by the Complainant that he had a difficult relationship with his manager was not considered. A grievance may have no merit or be misconceived that does not make it malicious. The threshold to find that the complaint was malicious is a very high one and particularly to maintain that was the case when the complaint was in fact withdrawn before the investigation concluded cannot be justified.

The complaint is well founded, and I determine that the Complainant was unfairly dismissed.

I note in particular in Reilly:

. “However, in my view, it is equally true that the mere fact that the employee may have been guilty of some degree of misconduct, even if that were felt to have contributed to the dismissal, cannot of itself preclude the possibility of those remedies being invoked”

I note in Redmond on Dismissal Law:

[24.12]. Re-engagement, on the other hand, may be in a different job provided it is comparable to the old one or is otherwise suitable.[15] This remedy provides the WRC (or Labour Court) with considerable latitude. The stated terms of re-engagement, if sufficiently wide, could in effect amount to reinstatement.

I find in these circumstances that to award compensation would not be a just remedy as the Complainant is unlikely to find a comparable role on the same terms and where the role he holds is not a senior one and in a very large pool of drivers with turnover and absences,  reinstatement and re-engagement  are remedies open for me to award.

 As I have found that the employer has not established substantial grounds to dismiss him the remaining remedies open to me are reinstatement or reengagement. The employee is a truck driver and does not hold a senior role in the company and there are number of roles that would become available over a year having regard to such a large pool of drivers employed by the Respondent. On the facts of this case, having regard to a written warning and a failure to some degree to engage in the investigation, I find that re-engagement is the just remedy and order that the reengagement to be effective from the 1st of January 2025 based on his contractual terms and conditions of employment prior to dismissal.

Employment Equality Claims

As the Complainant was absent from work on sick leave it must follow that the complaints relating to direct discrimination and reasonable accommodation are out of time as the breaches he alleged occurred could only have taken place when he was at work. That means the claims alleging direct discrimination and a failure to provide reasonable accommodation are out of time. It cannot be said that the obligation to provide reasonable accommodation and allegedly directly discriminating against him maintained and continued when he was not available to work.

For the reasons as detailed the last act of discrimination cannot be the 30th of January 2023 the date his employment ended and arising from this conclusion I find that CA-00057928-003 Failure to provide reasonable accommodation in breach of section 16(3) and; and CA-00057928-004  Direct discrimination on the disability ground contrary to section 6(1) and section 8, established by contrasting the treatment of the Complainant with that of other staff who were given lighter duties despite having no disability are out of time and not well founded.

Substantial Grounds-Vexatious Claim-Malice-Grounds-Re-engagement