Complainant

Respondent

Parties

Colin Egan

Avoca Handweavers Shops Limited

Representatives

Paul Carroll, O'Mara Geraghty McCourt Solicitors.

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-00066475-001

04/10/2024

The Complainant worked as a Senior Team Lead (Wine and Alcohol) for the Respondent, from 11 May 2019 until 9 April 2024. The Complainant worked approximately 40 hours per week, earning an annual salary of €35,874.80. The Complainant submits that following a series of events / incidents on 19 November 2023, he was subject to a disciplinary process which resulted in him being unfairly dismissed for gross misconduct on 9 April 2024. The Complainant alleges that the “insubordination allegation” against him was not explained to him. He also alleges that his conduct was “mischaracterised” or “misunderstood”. The Complainant alleges, inter alia, that the procedure was flawed and that his dismissal was disproportionate in the circumstances. The Respondent denies the allegations in full.

The Respondent provided detailed written and oral submissions.

The Respondent submitted that the Complainant was dismissed from his employment for gross misconduct, following a thorough process, undertaken by the Respondent, which afforded the Complainant maximum fairness and transparency, in accordance with fair procedures and natural justice.

The Respondent submitted that the Complainant’s actions amounted to gross misconduct. The Respondent further submitted that when considering the appropriate sanction, the Respondent considered the seriousness of the allegations and the Complainant’s representations within the process. The Respondent submitted that the “insubordination allegation” was fully explained to the Complainant and that the allegation encompassed the Complainant’s foul language. The Respondent submitted that according to the Oxford Dictionary, the relevant entry for insubordination is: “defiance of authority; refusal to obey orders”. The Respondent submitted that the CCTV footage sought by the Complainant was irrelevant. Finally, the Respondent submitted, inter alia, that the Complainant submitted insufficient evidence of efforts to his mitigate his loss.

Witness Evidence – Mr. Ivan Judha:

Mr. Judha outlined that he was a Food Hall Manager for the Respondent from July 2019 to April 2025.

He stated that on 19 November 2023, a planned stocktake was taking place at the Ballsbridge store. He said that when the Complainant arrived, he seemed agitated. He said that he was doing the stocktake downstairs while the Complainant was scanning wine.

Mr. Judha stated that he turned around to see that the Complainant had vomited on the floor and that the Complainant went to look for a cleaner but could not find one. Mr. Judha stated that he heard the Complainant “shouting and screaming” at Ms. Kasperowicz, the General Manager. He stated that the Complainant was using language such as “c**ts” and “b***hes” while referring to the Regional Manager and other staff. He said that Ms. Kasperowicz said nothing in response. He said that the Complainant walked “aggressively” towards the front door, where another female member of staff was standing and he shouted: “let me out, let me out”.

Cross-Examination:

Mr Judha stated that the Complainant arrived around 4.30pm / 5 pm. He stated that the Complainant started complaining as soon as he arrived and that he “worked himself up”.

He stated that he does not know what the Regional Manager’s email to the Complainant said.

Mr. Judha stated that the Complainant left the store around 9pm and that one of the supervisors had to open the door for him. The supervisor told Mr. Judha that she was scared of the way the Complainant walked towards the door.

Mr. Judha stated that the Complainant was very aggressive to Ms. Kasperowicz, that he was close to her, shouting and using hand gestures.

Mr. Judha stated that he did not hear the Complainant refuse to leave.

Witness Evidence – Ms. Anna Kasperowicz:

Ms. Kasperowicz stated that she has worked for the Respondent since 2017. She is now the General Manager of the Malahide store and that at the time of the incident in 2023, she was the General Manager of the Ballsbridge store.

Ms. Kasperowicz stated that they had a full stocktake on Sunday 19 November 2023. She stated that stocktakes always take place on Sundays. She said that the Ballsbridge store is the biggest wine outlet for the Respondent and that the wine was the Complainant’s responsibility. She said that she had spoken with the Complainant and told him that the stockroom needed to be tidied in advance, but the Complainant had not done this. The Regional Manager came to the Ballsbridge store on Sunday 19 November 2023 and saw that the wine cage was “messy”; and that there were boxes blocking the exit, which was a health and safety risk. Further, there was a note on some of the wine stating: “Do not count”. The Regional Manager took some photos and said that she would address the matter and subsequently left.

Ms. Kasperowicz stated that around 3pm / 3.30pm, she was sitting in her office, which is a small room, like a phonebooth. She outlined that the Complainant “stormed in and blocked the door”. She said that he was agitated and angry. He referred to the email from the Regional Manager and called the Regional Manager a “f**king c**t”. He also said the General Managers are a joke and do not know what they are doing and that “the r****ds do not know how to run the company”.

Ms. Kasperowicz stated that she had worked with the Complainant for a long time and she knew not to interrupt him so as not to escalate the matter. She stated that he engaged in a monologue for approximately 45 minutes. She said that she felt “very uncomfortable” and “cornered” in her office. She said that she is a small woman. She could not leave the office as she could not pass by the Complainant. She could not grab her phone. She hoped that someone would come in. When the Complainant left, she thought that he was “a little bit calmer”. They proceeded with the stocktake.

Ms. Kasperowicz stated that the store closed at 6.30pm when the Complainant, who was very agitated, approached her again. He brought her to the wine section where he had vomited. She said that the cleaner came to clean the area and she told the Complainant to go home. He told her that he would not leave and that they would “probably f**k it up again”. The Complainant again referred to the Regional Manager and other managers in derogatory terms such as “c**t”, “b***h” and “r****d”. He also called Ms. Kasperowicz a “c**t”. Ms. Kasperowicz told the Complainant that he needed to leave. He took his bag, walked to the door, and shouted “let me out, let me out”. Ms. Kasperowicz told the member of staff near the door, to open the door. Ms. Kasperowicz stated that the Complainant’s demeanour was “so aggressive”, that she was afraid that he would go through the glass door.

Ms. Kasperowicz stated that the Complainant had given out before, but not to such an extent. She said that the stock levels and stockroom tidiness were always an issue. She stated that for the entire time that the Complainant was in the shop that afternoon, he had not really done anything. She stated that she was not in the Complainant’s direct line management, but she was superior to him. She stated that she addressed her concerns by email. She stated that no one ever stated to her that the Complainant thought she was bullying him. She stated that planned stocktakes are arranged every quarter.

Cross-Examination:

Ms. Kasperowicz stated that the Complainant always wanted to do the stocktake himself, to “get it right”. She said that the Complainant did not come in on Saturday and she sent him a text to see if he was coming in on Sunday.

Ms. Kasperowicz stated that the Complainant was aware of every stocktake. She said that he had done a stocktake, three months prior. He also did a “cycle count”, two weeks prior. She said that the Ballsbridge store stocks an enormous amount of wine and that it was busy in the run up to Christmas.

Ms. Kasperowicz stated that the Regional Manager came in on Sunday morning to do a spot check. Ms Kasperowicz said that both she and the Regional Manager were unhappy with the state of the wine section. The Regional Manager said that she would follow up on it. Ms. Kasperowicz stated that she did not know if she told Mr. Judha about the email, however she did tell him that the Regional Manager was unhappy. She stated that Mr. Judha was her second-in-charge.

Ms. Kasperowicz stated that the Complainant “stormed” into her office that afternoon. She stated that he said that the place was run by idiots and he showed her photos of fridges in other sections in the store. He said that General Managers are a joke and incompetent. He said that he hated the Monkstown store. He called the General Manager in the Monkstown store, a “b***h” and a “f**kingr****d”.

Ms. Kasperowicz stated that it was impossible to discuss anything with the Complainant and that he was the only person talking. She said that he never mentioned any issues with ordering wine. She could not recall if he mentioned stocktakes in the run-up to the previous Christmas period. She could not recall discussing the “Christmas Fair” but said that it sounded familiar.

Ms. Kasperowicz stated that the Complainant did not “deliberately” block the office door, but because of the office size, she could not leave and she felt uncomfortable.

Ms. Kasperowicz stated that she told the Complainant to take his bag and to go home. He responded that he wanted to finish the stocktake “as you guys will f**k it up”. She told him again at 8pm, to take his bag and to go home. She said that the Complainant said that he was “sick from the bullying and harassment”. He called her and another manager “c**ts”.

Ms. Kasperowicz stated that she sent an email in early 2023 to the Complainant and his Line Manager, outlining that she was not happy with the state of the wine section. The Complainant approached her a few days later and accused her of going behind his back as “everyone knows that [he] does not use company email”.

Witness Evidence – Ms. Charmaine Lee-Morgetts:

Ms. Lee-Morgetts outlined that she has worked for the Respondent for ten years and that she is currently the Senior Team Lead in the Ballsbridge store.

Ms. Lee-Morgetts outlined that when the Complainant arrived on 19 November 2023, he was agitated. He was looking for the stockroom lads and for Ms. Kasperowicz. He was then gone for a while.

Ms. Lee-Morgetts outlined that later, she had her back to the Complainant when she heard someone getting sick. She then heard the Complainant asking for the cleaner. She said that he screamed at Ms. Kasperowicz: “that f**king c**t sending f**king emails on a f**king Sunday”. She said that every staff member could hear him screaming at Ms. Kasperowicz. She said that he was raising his arms and gesticulating. She said that Ms. Kasperowicz told him to go home and he said no. She said that after he left, Ms. Kasperowicz told her later that she was scared by the way the Complainant had walked towards the door.

Ms. Lee-Morgetts outlined that the Complainant had complained multiple times before, but not to this extent.

Cross-Examination:

Ms. Lee-Morgetts outlined that another member of staff was standing beside her at the time when the Complainant was screaming at Ms. Kasperowicz. She said that the member of staff squeezed her arm and asked her if the Complainant had just called Ms. Kasperowicz a “c**t”.

Ms. Lee-Morgetts outlined that everyone gives out about their workplace, but that the Complainant gave out a lot more.

Witness Evidence – Mr. Dean McCready:

Mr. McCready outlined that he has worked for the Respondent for ten years. He is currently the Retail Warehouse and Logistics Manager in Rathnew and he has held the General Manager position for two years.

Mr. McCready outlined that an email dated 20 November 2023 from Ms. Kasperowicz to the Regional Manager, which was then sent to HR, initiated the investigation. Mr. McCready said that he was appointed the Investigation Officer in this matter. He met with the witnesses – Ms. Lee-Morgetts and Mr. Judha and also Ms. Kasperowicz, to obtain their accounts of what happened on 19 November 2023. He then met with the Complainant, to obtain his account. The Complainant was sent notice of the meeting 48 hours in advance.

Mr. McCready outlined that on 30 November 2023, he met with the Complainant in Ballsbridge for about an hour / an hour and a half. He said that the Complainant attended with one witness, who did not say very much, maybe one sentence. He stated that minutes were taken and he referred to the same. He stated that he was satisfied with the accuracy of the minutes.

Mr. McCready outlined that the Complainant knew in advance of the stocktake and that he was to attend work that Sunday. He said that the Complainant received a message from his Line Manager, which referred to the Regional Manager being onsite and the state of the stockroom. Mr. McCready outlined that the Complainant said that he had not seen the email.

Mr. McCready referred to the Investigation Letter dated 28 November 2023 which outlined three allegations concerning: “A serious act of insubordination; Disruptive behaviour; and Abusive / Foul Language”. He stated that “insubordination” is disrespectful behaviour and undermining the positions of Ms. Kasperowicz, the Regional Manager and the Monkstown store General Manager.

Mr. McCready stated that the Complainant stated that his bad language was not directed at anyone in particular and that it was “more to himself”.

Mr. McCready referred to the Investigation Outcome Report dated 22 December 2023. He stated that, on his investigation, it seemed to him that the Complainant’s bad language was directed at people. He referred to the instances of insubordination and his findings as outlined in the Investigation Outcome Report. He concluded that the Complainant had engaged in disruptive and disrespectful behaviour to Ms. Kasperowicz and other managers, in front of the whole store. He said that the Complainant’s behaviour was completely unacceptable.

Mr. McCready stated that the Complainant seems to suggest that his behaviour was only disruptive after he got sick and not before. However, this was not the case. He said that the Complainant had also not previously brought a formal grievance, but sent a message to his Line Manager.

Mr. McCready stated that he concluded that the allegations were founded and recommended that the matter proceed to the disciplinary process. He said that the Complainant was also entitled to invoke the appeals procedure.

Cross-Examination:

Mr. McCready stated that he was contacted by HR and asked to carry out an investigation. He does not recall the exact date – it was around a week before his first Investigation Meetings with the witnesses.

Mr. McCready stated that he had not carried out an investigation previously. He said that he had previously dealt with staff as a supervisor. He outlined that he was a General Manager; independent; and not close to the store in question. He stated that he had not been trained in how to be an investigation officer. He stated that he was aware of the Respondent’s Disciplinary Policy. He said that he was not aware of any part of the Disciplinary Procedure which describes how investigations should take place.

Mr. McCready outlined that in advance of the investigation, he received an email sent by Ms. Kasperowicz to the Regional Manager dated 20 November 2023, which was then sent to HR. He was not given any further instructions. He understood that he had to gather the evidence. He contacted the witnesses. He could not recall how he chose Mr. Judha and Ms. Lee-Morgetts as witnesses. He could not recall if Mr. Judha had invited Ms. Lee-Morgetts as a witness. He did not interview other members of staff.

Mr. McCready outlined that the Complainant told him that he would have a witness in attendance. The witness did not provide any input. Mr. McCready outlined that he informed the Complainant of his familial relationship with the witness, but the Complainant wanted to proceed nevertheless.

Mr. McCready outlined that he met with the witnesses on 27 November 2023. He decided on the allegations outlined in the letter to the Complainant dated 28 November 2023, which he drafted himself. He asked HR to review the letter and HR made no amendments. He does not recall the process of deciding the allegations. He stated that they were based upon the initial email from Ms. Kasperowicz dated 20 November 2023. He understood that the use of foul language undermined a management position. He stated that he reviewed the Disciplinary Policy before he outlined the allegations. He chose the “insubordination allegation” based on his understanding of “insubordination”. He said that it was based on the Complainant’s use of bad language and his conduct in general. It was not based on the Complainant’s failure to follow an order. He stated that the meaning of “insubordination” was not discussed with the Complainant during the meeting. He stated that the letter dated 28 November 2023 indicated that there was a possibility of dismissal, due to the evidence that he had heard from the witnesses, the previous day.

Mr. McCready outlined that the bad language used by the Complainant is not something that he would “say to [him]self”. He concluded that the language was “directed at somebody”. He said that his role was to gather evidence and prepare a report containing his summary or outcome, which he did. He said that his use of the word “founded” meant that he found that the allegations against the Complainant were true. He understood that the matter would proceed to the disciplinary process. He did not know what would happen during this. He said that the Complainant’s position could be terminated.

Mr. McCready agreed that the five quotations that he referred to, under Finding 2 of the Investigation Outcome Report, arose after the Complainant became ill. He also confirmed that the “most serious” bad language used by the Complainant, occurred after he became ill. However, he stated that the Complainant had also used bad language before he became ill.

Mr. McCready stated that he received an email dated 10 December 2023 from the Complainant but could not recall if he replied to it, or what he thought of that email.

Mr. McCready stated that he does not recall CCTV footage being mentioned by the Complainant or by Ms. Kasperowicz. He said that he did not consider any CCTV footage as there is no audio in it. He said that the case was around foul language and he felt that footage with no audio was not required. He said that he did not put much thought into it.

Witness Evidence – Mr. Ken Daly:

Mr. Daly outlined that he is the Finance Business Partner and that he has worked for the Respondent for four years.

Mr. Daly stated that he was asked to carry out the Disciplinary Procedure by HR. He said that it was pushed back by one week, at the Complainant’s request.

Mr. Daly asked the Complainant if he felt that calling the Store Manager and the Regional Manager names was “insubordination”. He said that the Complainant appeared taken aback by this question. He did not show any remorse. He was indignant about the whole process.

Mr. Daly stated that no one wants to sack anyone and that dismissal is the “last option”. He said that he considered that the Complainant was sick but that this was not mitigation for calling his colleagues “c**ts” and “b***hes”.

Mr. Daly stated that he made the decision to dismiss, following the investigation and the Investigation Outcome Report. He said that the Respondent has to protect its staff from abuse and the Complainant had used unacceptable language. He said that he also considered the email from the Regional Manager sent on 19 November 2023, prior to the events. He said that the tone of the email was “completely professional”. He also saw the photos of the stockroom which was not in a good state – it was untidy with fire exits blocked.

Mr. Daly stated that the did not reply to the letter from the Complainant’s solicitor dated 14 March 2024 as it was an internal matter.

Mr. Daly stated that it was his decision to dismiss the Complainant, which he took seriously. He stated that he went through the Disciplinary Policy to see what the options were but he felt that the Complainant’s actions were too serious and that there were a series of managers who were undermined. He said that the Respondent must support its managers and that staff cannot be afraid of their colleagues.

Cross-Examination:

Mr. Daly stated that he reviewed: the Investigation Outcome Report dated 22 December 2023; the minutes of the Witness Investigation Meetings; the correspondence to the Complainant; and the Respondent’s Disciplinary Policy.

Mr. Daly stated that he had carried out several disciplinaries and investigations over the past few years.

He stated that he spoke to the Regional Manager to see if she had any background and to check if had missed anything. He also requested a copy of the email that she had sent on 19 November 2023, so that he could consider its tone.

Mr. Daly stated that he did not want to dismiss anyone. He also wanted to consider mitigation. He followed up with the Complainant. He wanted to understand what had caused the issues on the day.

Mr. Daly stated that he is aware of the term “insubordination”. He stated that it means defiance, not doing what you are told. He said that there are several ways of thinking about it. He said that the Disciplinary Policy is not wholly prescriptive and there are things which it does not envisage, that can happen. Mr. Daly stated that the difference between misconduct and gross misconduct is the level of seriousness.

Mr. Daly stated that the Complainant was screaming at everyone and calling people names. He stated that he did not know how standing in front of your colleagues and calling a manager “a c**t” is anything other than defiance which is “insubordination”. Mr. Daly stated that the Complainant did not just use bad language, he used abusive language.

Mr. Daly stated that he was surprised that the Complainant was surprised about the “insubordination” allegation. Mr. Daly referred to the Formal Disciplinary Meeting Invite letter dated 5 March 2024. He also referred to the Investigation Outcome Report. He said that Ms. Kasperowicz, in her email dated 20 November 2023, conveyed “insubordination” when she stated: “He was shouting out again how everyone is disrespectful and disgusting despite I’ve told him to go home. All that happens in front of my team…”

Mr. Daly confirmed that he had concerns that the Complainant’s behaviour would continue and that is why he was dismissed. He stated that the Complainant’s behaviour on 19 November 2023 was unacceptable. He said that the staff had to be protected. He said that the first incident occurred before the Complainant was sick. He also stated that being sick is not an excuse for verbally abusing several female managers, using the “worst language that we know”. He said that there was no justification for the Complainant’s behaviour. He said that language such as “c**t”, “b***h” and “r****d” should not be used towards anyone, let alone your managers.

It was put to Mr. Daly that the Complainant had continued to work for the Respondent, after the event, for some months, without incident. Mr. Daly stated that the Complainant’s role was to work in the Ballsbridge and Monkstown stores, and he could not work there any longer. He stated that he presumed that the Complainant was on his “best behaviour” after the incident. He stated that as a “stand alone issue”, the incident had gone too far. He stated that the Complainant could not go back to the Ballsbridge or Monkstown stores where he abused the General Managers. He said that the Complainant was asked not to return to the Ballsbridge store. Mr. Daly stated that it would not be fair to Ms. Kasperowicz.

Mr. Daly stated that while the Complainant worked in other places, it was an issue as half his role was in the Ballsbridge store. He stated that this did not form part of his decision and is only something that he thought of now.

Mr. Daly stated that he understood that the Complainant accepted that he had used bad language but not that he had directed it at anyone. He said that he referred to the Complainant “calling [his] manager” names. He took the Complainant’s response of “that isn’t true”, to mean that the Complainant denied calling the manager names.

Witness Evidence – Mr. Mike Conway:

Mr. Conway outlined that he has worked for the Respondent for two years. He is currently the General Manager of the Central Bakery Kitchen or the Central Processing Unit.

Mr. Conway outlined that he received an email, asking him to conduct the Appeal process. He invited the Complainant to the Appeal Hearing in Head Office where a member from HR took the minutes.

Mr. Conway stated that he believed that the process was “fair and impartial” throughout. He stated that the Complainant was afforded the opportunity to bring a representative, he received documents in advance and he had the opportunity to respond. He also had the opportunity to appeal.

Mr. Conway stated that the facts of the matter were that the Complainant was ill; he engaged in “threatening and bullying actions”; and made foul and derogatory comments to his colleagues.

Mr. Conway stated that “insubordination” to him meant the undermining of authority, which includes an environment being created where the workplace is compromised from a safety perspective and a business procedural perspective. He stated that the time of the appeal, the Complainant understood what “insubordination” meant. He stated that all of the evidence that was presented to the Complainant would have highlighted that “insubordination” was a factor.

Mr. Conway stated that he had the power to overturn the dismissal decision and that he was conscious of the responsibility on him. He looked at all of the evidence. He considered the Complainant’s “inappropriate and unacceptable derogatory language towards his colleagues”. He also considered the Complainant’s “bullying and harassment approach to his colleagues on the day”. He stated that the Complainant created an environment where his colleagues felt unsafe and threatened. He said that it was a “nasty and vicious attack” on his colleagues. He stated that during the Appeal Meeting, the Complainant never apologised for his behaviour and that he has never shown any remorse. He took no responsibility or accountability. Mr. Conway stated that he was surprised by this and asked the Complainant if he had anything to add at the end of the meeting, but the Complainant declined to say anything.

Mr. Conway stated that he did not believe that the Complainant could work with his colleagues again and that he had destroyed the Respondent’s trust and respect in him. He referred to the Respondent’s Dignity At Work Policy and the Respondent’s duty of care to its employees. Mr. Conway said that after such a vindictive verbal attack on a female colleague, he could not ask her to work in that kind of environment.

Cross-Examination:

Mr. Conway said that he was familiar with the Dignity at Work Policy and that the Complainant’s actions towards his colleagues constituted bullying. He stated that he had gathered the evidence and in his opinion, the Complainant bullied and harassed his colleagues that day. [It was subsequently confirmed by the Complainant’s representative that Mr. McCready, the Investigation Officer, had sent the Respondent’s Dignity At Work Policy to the Complainant].

Mr. Conway said that he met with the HR department to obtain the documents concerning the case.

Mr Conway stated that he also spoke with the first Appeals Officer and the Director of the Business, who had chaired the Appeals Meeting. Mr. Conway stated that he also spoke to Mr. Daly regarding the photos of the stockroom. He said that these conversations took place after the Appeal Meeting.

Mr. Conway stated that his words, “nasty vicious attack” and “a vindictive verbal attack” were appropriate in view of the gravity of the Complainant’s words, tone and approach. He said that it is “vicious and vindictive to repeatedly call a young lady a c**t”. He said that staff felt threatened and there was a reference to one female member of staff feeling unsafe and worried.

Mr. Conway stated that he understands “insubordination” to mean undermining the authority of a superior and as part of that, not following an instruction. He said that there are different forms of “insubordination”. He said that it is where one creates an environment which is unsafe and can lead to business operational issues. He said that the Complainant was insubordinate due to his behaviour and language. He stated that the Complainant also did not follow a clear instruction when Ms. Kasperowicz asked him to leave as he was out of control, but he did not do so. It was put to Mr. Conway that it was the Complainant’s case that “there was no suggestion that he refused to leave, until May [2024]”. Mr. Conway stated that the evidence is there and he referred to Ms. Kasperowicz’s email dated 20 November 2023.

Mr. Conway stated that there was a safety issue regarding the wellbeing of colleagues. He stated that staff safety was compromised because of the Complainant’s actions and behaviour.

Mr. Conway stated that the Complainant’s actions on that day meant that the Respondent’s trust was “demolished” and the Complainant could not retain that position. He could not see a working relationship after “this attack”.

Mr Conway stated that he was not aware that the Complainant had been working for the Respondent until May 2024 without any difficulties.

Mr. Conway stated that his role as Appeals Officer was to look at the decision that was made, listen to the grounds of appeal and to uphold or overturn the dismissal decision. He said that he understood his role and the allegations against the Complainant. He said that he had expressed his views at this Hearing.

The Complainant provided detailed written and oral submissions.

The Complainant submitted that there was no mention of “insubordination” in the original complaint, an email from Ms. Kasperowicz to HR on 20 November 2023. The Complainant submitted that, in the circumstances, the decision to investigate “insubordination” was pre-determined and / or misguided. The Complainant submitted that the “insubordination allegation” elevated the matter from misconduct to gross misconduct. The Complainant further submitted that the “insubordination allegation” was not explained to him and that he believed it concerned an allegation that he refused to leave the Ballsbridge store when requested.

The Complainant submitted that his mitigation factors were ignored. He had been physically sick on the day which was upsetting and embarrassing. He had an unblemished record. The Complainant submitted that the witness quotations outlined in the Investigation Outcome Report concerned the time period after he had vomited.

The Complainant submitted that while a disciplinary sanction was warranted, the decision to dismiss him was disproportionate and unwarranted. The Complainant stated that his behaviour did not reach a level of gross misconduct and that he continued to work for the Respondent for a further five months without incident. The Complainant submitted that no consideration was given to alternatives to dismissal.

The Complainant submitted that his efforts to mitigate his loss were sufficient and that his role was quite specific with few openings.

Complainant’s Evidence:

The Complainant outlined that he started working for the Respondent on 19 May 2019, as a merchandiser in the Ballsbridge store. He said that his role developed and took on more momentum and responsibility. He was asked to choose wines, through the wine buyer. He was promoted in mid-2021 and became a Supervisor, specifically regarding wine. His role moved more into buying and stocking wine, which was less client-facing.

The Complainant stated that the Ballsbridge store was the Respondent’s biggest store. He stated that there was a full stock take every quarter and there were “cycle counts” in addition, which was a stocktake of a particular section.

The Complainant stated that he was informed “a couple of weeks” in advance that the stocktake was taking place on 19 November 2023. He also received a call from Ms. Kasperowicz the previous Wednesday, to confirm that he was coming in. He stated that he received a “WhatsApp” message from his Line Manager, on 19 November 2023, who informed him about a “snotty email” from the Regional Manager. He arrived to work at approximately 3pm / 3.30pm and was informed that the Regional Manager was “on the warpath” as she was not happy with the state of the stockroom. He stated that there was a lot of stock on the floor, due to the time of year – namely Christmas levels of stock. He referred to issues the previous Christmas when he alleged that the Store Manager and the Regional Manager felt there wasn’t enough stock and his “professionalism was being called into question every day.”

The Complainant stated that he spoke to Ms. Kasperowicz at about 4pm in her office. He stated that he was very concerned about a few things “going on with the store”, including fridge shutters being half-closed. He said that he had at least 14 photos, taken over a number of months, of fridges in which wine, cheese and charcuterie were not fully visible. He also discussed a Christmas Fair with Ms. Kasperowicz, as part of a plan to increase wine sales.

The Complainant stated that the conversation with Ms. Kasperowicz had a “negative tone”. He was upset that the Regional Manager had been in. He felt that the focus was on what he did not do, when the Respondent did not focus on other areas of improvement, such as addressing the shutter matter. He believed that his fridge shutter concerns “would have got [Ms. Kasperowicz’s] back up.” He said that Ms. Kasperowicz’s office was small and that he did not “deliberately block her”. He did not recall using words such as “c**ts and b***hes”. He “definitely” did not say the word “r****d”. He stated that the meeting took only 15 to 25 minutes. He stated that he had wanted to see the CCTV footage to confirm how long he was in Ms. Kasperowicz’s office.

The Complainant stated that he left the office at approximately 4.30pm and “went about his day”. He spent the next two hours organising stock. He became physically ill between 7.30pm and 8pm and vomited on the floor, in front of the wine section. He vomited as he had anxiety and he was upset. He felt that there was a lot of pressure. He felt that he was going to have a difficult Christmas period, similar to the previous Christmas period, and he did not want to go through that again.

The Complainant stated that Ms. Lee-Morgetts saw him and asked if he was ok. He went to look for a cleaner or a mop and bucket. He went upstairs and looked for Ms. Kasperowicz and the cleaner. He found Ms. Kasperowicz and told her that he had been sick. He was “upset and a little frantic at that moment”. Ms. Kasperowicz came to “look at the situation”. He cleaned up his vomit, by hand, using blue towels. The cleaner later came and mopped the area. He said that Ms. Kasperowicz asked him if he was going to stay and do the stocktake. His initial response was that he would. He then changed his mind as he said that no one cared that he had been sick. He decided to go home.

When he came back upstairs, the matter escalated. It was very upsetting. He stated that the only time that Ms. Kasperowicz told him to go was when he was already walking towards the front door. She said: “Colin, just go”. The door was locked and another member of staff opened it for him. The Complainant stated that he “yelled the word ‘c**t’” as he walked towards the door. The Complainant stated that at the time, he was thinking of someone who was not present. He said that he only used that word “once or twice, tops”. He used the word “b***hes” once or twice. He never used the word “r****d”. His “recollection” of the use of those words was that they were not in sentences and not directed at anyone. He stated that he “was saying the words out loud”. They were very audible. He did not recall the incident like it was portrayed. He said that “people heard the ‘c-word’ at the door and assumed that it was aimed at [Ms. Kasperowicz]”. He said that his frustration was with the Regional Manager. The Complainant then said that “maybe, in the meeting with Ms. Kasperowicz” he had used the word “b***h”, “as an aside”.

The Complainant spoke with his Line Manager the following day and told him what had happened. He said that “he had been sick all over the floor and that there had been an incident and language and it was unpleasant”. His Line Manager told him to give the Ballsbridge store “a miss until the heat comes out of this”. He had multiple conversations with his Line Manager over the phone. He understood that this was a common-sense approach and he felt that there was enough to do. He was not concerned at that point. He also had a meeting with a supplier and his Line Manager that Thursday in Suffolk St..

The Complainant stated that he received a letter dated 28 November 2023 which invited him to a formal Investigation Meeting. He was surprised and he did not know what it meant. He did not understand what “a serious act of insubordination” was, especially as he had spoken to his Line Manager a number of times. He said that he had left the Ballsbridge store. He stated that the initial complaint that was put to him was that he refused to leave the store, but he stated that he did leave the store. He accepts that bad language was used.

On 30 November 2023, the Complainant met with Mr. McCready for approximately 1.5 hours. As regards the “insubordination allegation”, he stated that it “was put to [him] that [he] had not left the store”. He firmly disagreed with this.

He stated that he did not see the minutes of the other Witness Investigation Meetings until 22 December 2023, when he also received the Investigation Outcome Report. He called his Line Manager immediately, who had not been included in the process. The Complainant believed that he had been “found guilty”. He recalls reading the Investigation Outcome Report and remembering that this was not what happened. He felt that it was “ridiculous”. He stated that CCTV footage would have brought clarity to the timeline as he was not in Ms. Kasperowicz’s office for 45 minutes.

He stated that he was told that he could direct his appeal to the Managing Director of Operations. He said that he never received a response regarding the CCTV footage. He later made a SAR request for the same and was told that it had been deleted.

He attended a Disciplinary Hearing with Mr. Daly, which due to weather conditions, took place on 11 March 2024. As regards the “insubordination allegation”, the Complainant stated that it was put to him that the use of bad language was “insubordination”. He said that he admitted to using bad language about his manager and not at his manager. He said that he understood that the “insubordination allegation” was that he did not leave the store. He felt the accusation changed. He stated that the Mr. Daly focussed on him calling managers names in the context of gross misconduct and “insubordination”. He subsequently met with Mr. Daly, who he felt was “looking for a dismissal”. The outcome was a decision to dismiss him, effective immediately, on 9 April 2024.

He attended an Appeal Meeting on 30 April 2024 which was quite short. He was surprised at how quick it was. He said that Mr. Conway asked some questions. He said that he read off his notes and that there was no conversation. He subsequently received the decision letter dated 21 May 2024, confirming his dismissal.

The Complainant stated that the minutes of the Witness Investigation Meetings did not reflect how matters went that day. He denied that he refused to leave the store. He believed that the whole incident was “exaggerated”. It was never put to him that he was “threatening” or that anyone felt at risk or that he had engaged in bullying or harassing behaviour. He said that he did not threaten anyone. He did not accept that his actions could have a “severe detrimental effect”.

The Complainant stated that after 19 November 2023 until his dismissal on 9 April 2024, he did not return to the Ballsbridge store and that there were no other issues or complaints.

Mitigation of Loss:

The Complainant stated that his salary was €35,874. He was dismissed on 9 April 2024 and took up new employment on 24 September 2024. He had 167 days of unemployment – or 119 working days of unemployment. His loss amounted to €16,419. He further stated that he received benefits amounting to €2,886.80.

The Complainant outlined that there were not many roles in the wine business, particularly during the time of year when he was dismissed. He said that he has only ever worked in the wine business. He said that he contacted people that he knew. He started his new role on 24 September 2024. He started on €35k there and this was increased to €45k in March 2025.

In addition to contacting people he knew, he submitted job applications in June and August 2024, which were unsuccessful. He stated that, aside from January, August is the “toughest” month.

Cross-Examination:

The Complainant stated that he knew that he had to come to work on Sunday 19 November 2023.

The Complainant stated that he did not see the Regional Manager’s email until the following day, 20 November 2023.

The Complainant stated that he “did not give it much thought” when he read Ms. Kasperowicz’s email dated 20 November 2023 in which she stated that she was not comfortable to have him around her staff.

The Complainant stated that he “he cannot say how anyone should feel”, when referred to the Investigation Meeting Notes dated 27 November 2023 where it stated that “the staff on the floor were really frightened”.

The Complainant stated that he arrived to work in “a bad mood” over his Line Manager’s text message that day.

The Complainant denied that he used the word “b***h” during his conversation with Ms. Kasperowicz. He said that he used the “c-word”.

The Complainant stated that his use of bad language was borne of frustration and he was upset that he had to clean up his own vomit. He said that his words were “not directed at anyone”.

The Complainant stated that he disputed the witnesses’ accounts. He denied using bad language towards Ms. Kasperowicz. He stated that he “said it towards the door”.

As regards the Complainant’s admission to using the word “c**t”, he stated that the “only time that specifics came in” regarding his bad language was today and yesterday during the Hearing.

It was put to the Complainant that he was changing his answers, to which the Complainant replied: “not really”.

The Complainant was asked why, during his Appeal Meeting, he did not raise the fact that he did not understand the term “insubordination”. The Complainant stated that it was addressed and that he did understand it. He said that he had left the store. He also said that he “was not allowed” to raise anything during the meeting. He said that he: “had a general issue with all of it and [he] was raising it collectively. [He] did not bring it in, in that sense.”

It was put to the Complainant that he first requested the CCTV footage on 29 December 2023, after his Investigation Meeting and that it was not referred to in the minutes of his Investigation Meeting or in his follow-up email dated 10 December 2023. The Complainant said that he does not accept the accuracy of the Investigation Meeting minutes, despite sending an email outlining clarifications on 10 December 2023. The Complainant also stated that he “do[es] not refute the minutes in their entirety throughout the process”.

The Complainant stated that, as regards his meeting with Ms. Kasperowicz, “it is possible that [his] voice is louder due to [his] size” and that he did not intend to yell at Ms. Kasperowicz. He said that the meeting was “heated at points”.

The Complainant stated that the evidence against him was “incoherent” and “disjointed” and “melded together”.

The Complainant was asked if it would be acceptable to use the words “c**ts or b***hes or r****ds”. He said “I don’t know…. I didn’t do it…. It is not ideal.”

The Complainant stated that he could work with Ms. Kasperowicz again and that when he left the Ballsbridge store on 19 November 2023, he did not think that he could not return.

The Complainant was asked again about the bad language used. He stated that he only used the word “c**t” as he left the Ballsbridge Store and that he refuted the witnesses’ recollection. He also said that he “may have said that the situation was r****ded”.

Mitigation of Loss:

It was put to the Complainant that he only sought to mitigate his losses after the Respondent’s representative wrote to his solicitor on 16 May 2024, seeking evidence of his efforts to mitigate his losses. The Complainant stated that he applied for jobs within his experience and that he was actively looking. He stated that he does not have hard evidence of other jobs that he applied for.

The Complainant was asked for evidence that he applied for jobs between April and June 2024, to which he replied that he applied for jobs that he could get, within his level of experience.

The Complainant stated that he does not have any income from his company “Distinctive Drinks”.

The Law:

Section 6(1) of the Unfair Dismissals Act 1977, as amended (the “UD Act”) provides that “the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.”

Section 6(4) of the UD Act states:

“Without prejudice to the generality of subsection (1) of this section the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a) the capability, competence or qualification of the employee for performing work of the kind which he was employed by the employer to do,

(b) the conduct of the employee,

(c) the redundancy of the employee, and

(d) the employee being unable to work or continue to work in the position he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.”

Section 6(6) of the UD Act states:

“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.”

Section 6(7) of the UD Act states:

“Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had [….]

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

(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14 (1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7 (2) of this Act.”

Section 14(1) of the UD Act refers to such dismissal procedure as was furnished to the employee upon entering the contract of employment.

The combined effect of the above provisions is to place the statutory burden of proof on the Respondent to show that: the reason for the dismissal was substantial and / or within the parameters of section 6(4); and that the Respondent acted reasonably and in accordance with its disciplinary procedure or relevant code of practice.

Fair Procedures:

The key purpose of a disciplinary procedure is to afford an employer the opportunity to set out the concerns it may have about the conduct or poor performance of an employee and at the same time, afford the employee the opportunity to answer the allegations and make representations as to why he / she should not be disciplined or dismissed. This is enshrined in S.I. No. 146/2000 – Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000 (the “Code of Practice on Grievance and Disciplinary Procedures”).

The Role of the Adjudicator:

The Adjudicator is not to substitute themselves for an employer and effectively engage in a de facto rerunning of a disciplinary case. As stated by Noonan J. in The Governor and Company of the Bank of Ireland v. Reilly [2015] IEHC 241, [2015] 26 E.L.R. 229:

“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…”

Therefore, the key questions are: whether fair procedures were followed by the Respondent; and whether the Respondent’s ultimate decision to dismiss fell within the “band of reasonableness”.

Findings and Conclusions:

It was common case that the Complainant was due to work on 19 November 2023 and take part in a planned stocktake. It was also common case that the Complainant entered his workplace, in a “bad mood” at approximately 3pm, following the receipt of a text message from his Line Manager. This text message had been sent to the Complainant on foot of an email from the Regional Manager, which raised concerns about the state of the wine section, for which the Complainant was responsible.

It was also common case that the Complainant went to the Store Manager’s, Ms. Kasperowicz’s, office. However, there is a divergence in accounts concerning the nature of the encounter. Ms. Kasperowicz gave an account of a “very uncomfortable” 45-minute encounter with the Complainant in a small space, during which he called the Regional Manager a “c**t” and other managers “r****ds”. In contrast, the Complainant outlined that the encounter was “heated” at points and lasted no longer than 25 minutes. During the Complainant’s evidence, which changed over the course of the Hearing, he accepted that he had used language such as “c**ts” and “b***hes” and (possibly) the word “r****ded”, at various intervals. However, he stated that those terms were “not directed” at anybody. He also accepted that “it is possible that [his] voice is louder due to [his] size” and that he did not intend to yell at Ms. Kasperowicz.

It was common case that the Complainant then proceeded to the wine section to do the stocktake and that he later vomited. It was common case that he had a further exchange with Ms. Kasperowicz. It was common case that the Complainant then left the store and that a member of staff was told to open the door, as the Complainant walked towards it. It was common case that the Complainant “yelled” the word “c**t” as he walked towards the door. However, there is a divergence in accounts regarding exactly what the Complainant said; and to whom or about whom he said it. There is also a divergence as regards whether the Complainant refused to leave the store. The Complainant alleges that any bad language he used was “not directed” at anybody. He also denies that he refused to leave the store.

Fair Procedure and the Band of Reasonableness:

The Code of Practice on Grievance and Disciplinary Procedures outlines:

“The procedures for dealing with such issues reflecting the varying circumstances of enterprises/organisations, must comply with the general principles of natural justice and fair procedures which include:

·             That employee grievances are fairly examined and processed;

·             That details of any allegations or complaints are put to the employee concerned;

·             That the employee concerned is given the opportunity to respond fully to any such allegations or complaints;

·             That the employee concerned is given the opportunity to avail of the right to be represented during the procedure;

·             That the employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors or circumstances.”

On the evidence before me, it appears that the Respondent had investigation, disciplinary and appeals procedures in place. However, in the circumstances of this case, there were some serious shortcomings from the outset:

On the evidence before me, it does not appear that the “details of any allegations or complaints [were] put to the employee concerned”. There was considerable disagreement between the Complainant and the witnesses as to what exactly occurred on 19 November 2023.The Complainant stated that the evidence against him was “incoherent” and “disjointed” and “melded together”. It was also his evidence that he was not provided with the minutes of the Witness Investigation Meetings until 22 December 2023, when he received the Investigation Outcome Report of the same date. This is of particular concern given that the matters discussed during the Witness Investigation Meetings were central to the allegations against the Complainant. Moreover, the Investigation Outcome Report provides quotations from those same Witness Investigation Meetings as the basis for its findings. It was incumbent on the Respondent to provide copies of the minutes of the Witness Investigation Meetings dated 27 November 2023 with Mr. Judha, Ms. Lee-Morgetts and Ms. Kasperowicz, to the Complainant, in advance of his own Investigation Meeting on 30 November 2023. This would have ensured that the Complainant was provided with the details of the allegations and complaints, from the outset.

On the evidence before me, it also appears that there was some disagreement as to what “insubordination” meant – namely, whether it concerned an allegation that the Complainant did not leave the store when told to do so; or whether it concerned an allegation that the Complainant had used bad language towards his managers; or whether it concerned both. The Respondent’s position in summary, is that “insubordination” includes both failing to follow a direction and using bad language. Notably, the Investigation Officer, who was responsible for formulating the allegation, stated that the allegation was not based on the Complainant’s failure to follow an order.

Moreover, if it is accepted that insubordination encompassed both a failure to follow directions and the use of bad language, it is unclear why the following three separate allegations were outlined in the letter to the Complainant dated 28 November 2023: “A serious act of insubordination; Disruptive behaviour; and Abusive / Foul Language”.

This lack of clarity was further evidenced by references, during the Hearing, to the Complainant’s bullying and harassment of others. I note that the Complainant had been provided with the Respondent’s Dignity at Work Policy. However, there was no specific or separate allegation outlined in the letter to the Complainant dated 28 November 2023, that he had bullied and harassed others.

All of these details concerning the complaints and allegations against the Complainant should have been made clear and put to the Complainant prior to his Investigation Meeting on 30 November 2023. This is particularly so, given the seriousness of the ultimate sanction of dismissal which was under consideration.

In the circumstances, I find that the Respondent failed to afford the Complainant fair procedure and that this failure rendered the dismissal outside the band of reasonableness and therefore unfair.

Redress:

Redress for unfair dismissal is provided for under section 7 of the UDA and includes: re-instatement, or re-engagement, or compensation for financial loss attributable to the dismissal, not exceeding 104 weeks remuneration. 

In determining the level of compensation payable to the Complainant, I am guided by section 7(2) of the UD Act which outlines matters for consideration, including: the employer’s compliance with fair procedure; the extent to which the employee’s conduct contributed to the dismissal; and the employee’s duty to mitigate any loss.

As regards mitigation of loss, section 7(2)(c) of the UD Act refers to: “the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid”. 

In Sheehan v. Continental Administration Co Ltd UD 858/1999 (the “Sheehan Case”), the Employment Appeals Tribunal considered the complainant’s mitigation efforts and held: 

“A Complainant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work. It is not enough to inform agencies that you are available for work nor merely to post an application to various companies seeking work.

[…]

The time that a Complainant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss.”

As regards section 7(2) of the UD Act, I note that there were shortcomings in the Respondent’s compliance with fair procedures, as outlined above. I also note that the Complainant contributed to his dismissal by way of his own conduct on 19 November 2023. Finally, I also note that the Complainant was unemployed from 9 April 2024 until 24 September 2024. He provided no documentary evidence concerning positions that he applied for throughout April and May 2024. The Complainant provided documentary evidence of his (unsuccessful) applications for: five positions over a six-day period in June 2024; and one position in August 2024. In the circumstances, the Complainant’s efforts to seek employment were entirely inadequate and amounted to a failure to mitigate his loss as required by the UD Act and the Sheehan Case.

Accordingly, having regard to the foregoing, I award the Complainant approximately four weeks’ pay which comes to approximately €2,760.

Conclusion:

For the reasons set out above, I find that the Complainant was unfairly dismissed. In the circumstances, I order the Respondent to pay the Complainant compensation in the amount of €2,760.

For the reasons outlined above, I find that the Complainant was unfairly dismissed and that this complaint is well founded. I order the Respondent to pay the Complainant compensation in the amount of €2,760.

Unfair Dismissals Acts 1977 – 2015.