Complainant

Respondent

Parties

Alex  Collins

Kevin O Leary Group Kevin O Leary Silversprings Ltd (amended on consent)

Complainant

Respondent

Anonymised Parties

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Representatives

  Self-Represented

Úna Clifford

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-00068908-001

29/01/2025

The Complainant, a Sales Executive, swore an Oath at the outset of the hearing. He was accompanied by his father, Mr Ronan Collins who also swore an Oath. It was his complaint that he was unfairly dismissed from this employment for gross misconduct and seeks compensation.

Mr. Kevin O’Leary, Director, Mr. Kevin Cronin, Finance Manager and Mr Dermot O’Sullivan, Sales Manager, gave evidence on Oath. The Respondent was represented by Ms. Úna Clifford who advised she was appearing as an HR Consultant and not in her capacity as a Barrister. It was the Respondent’s case that the Complainant was dismissed but it was a fair dismissal.

The name of the Respondent was clarified and amended at the outset of the hearing.

The Complainant worked as a Sales Executive in the Respondent’s car dealership from 14 August 2023 until his termination on 18 November 2024. He earned a gross basic salary of €30,000 with 8.5% commission working 43 hours per week.

The Complainant gave evidence that prior to his dismissal he had been a high‑performing employee, noting that he had passed probation, exceeded all targets, and earned approximately €60,000 in 2024 despite a basic salary of €30,000. He stated there were some issues within the workplace, including what he described as a lack of a proper system for managing holidays and an incident where he felt a manager had spoken to him in a verbally abusive manner.

It was his evidence that following an earlier period of leave, he returned to find that a meeting had been called with management, including Mr. O’Leary. In that meeting, he was accused of buying a car directly from a customer at a higher price, and of having the vehicle parked “in a car park.” He described being presented late in the day (around 5pm) with disciplinary allegations and being given 15 minutes to decide whether to resign or be dismissed. He described feeling under severe stress and that he had no meaningful opportunity to respond before receiving the termination letter.

The Complainant gave further evidence he did not receive proper pay following dismissal, stating he was not paid up to 25 November 2024, despite his understanding of entitlement. He denied any fraudulent intent, arguing that buying trade‑in cars was understood by staff to be a perk of the job, and that he had not been provided with representation, clarity, or a fair investigative process. He said the Respondent’s investigation was “agonising” and lacked procedural fairness.

On the impact of the dismissal, the Complainant described significant financial hardship, stating that he was out of work for two months, suffered reputational damage, and ultimately felt compelled to leave the motor industry altogether. It was his evidence he sought work elsewhere, including roles for which he was over‑qualified, and noted that a recruiter and former employers had indicated he was now “scuppered” for opportunities because of the circumstances of his dismissal.

He later secured employment in June 2025 with “Swift Energy / Solar Panels” on a lower basic salary of €32,000, with limited commission potential and difficulty earning additional income. He asserted that this represented a substantial loss of earnings and demonstrated the ongoing consequences of the dismissal.

Under cross‑examination, the Complainant accepted that he had submitted a workplace complaint before the disciplinary process and that he had sought an apology from management. He confirmed that after returning from leave he was called to a meeting with Mr. Kevin O’Leary, and acknowledged that his brother’s wife, a solicitor, was aware of the situation, though he said he primarily sought advice from an accountant relative.

He accepted that he admitted certain facts during the investigation, including aspects of the disputed trade‑in transaction, and that he had only around 10 minutes to review the company records during the process. He acknowledged contacting the customer directly from his own phone and offering a price but argued that approaching customers was part of his role as a salesperson.

The Complainant admitted that he had not informed his Sales Manager about the customer’s intention to trade in the vehicle and agreed that this was a lie. He confirmed that he had completed receipts and opened the cash drawer but insisted that bank drafts typically came from customers rather than himself.

When challenged, he accepted that lying to a manager affects trust but maintained that he had never previously done so, and that he believed the Respondent had continued to benefit from his sales. He argued that the real reason for his dismissal was management’s view that he was “not flexible enough,” possibly relating to an earlier Saturday leave dispute.

He said he did not pursue an internal appeal because he “never met anyone higher than Mr. O’Leary,” and believed any such effort would be futile.

He described the significant efforts he made to find new employment working 40 hours a week on job applications, attending approximately 10 interviews, and submitting hundreds of applications.

The Complainant insisted that parts of the transaction paperwork were correct but disputed others, stating he did not sign certain documents and that the vehicle was not a trade in, but a private sale motivated by achieving a better financial outcome. He also stated that he believed the car could have been sold for €12,900 and denied that he benefited personally. He said he did not approach Mr. O’Leary earlier because he feared the consequences and believed management had already decided the outcome before the disciplinary meeting.

Mr Dermot O’Sullivan’s Evidence

Mr. Dermot O’Sullivan, Sales Manager, outlined the standard valuation and sales process used by the business, which includes taking photographs of the vehicle, recording mileage, reviewing market prices, signing off on valuations, entering details into the CRM system, and ensuring reception handles the associated paperwork and payments. He stated that this procedure was followed when the Complainant, valued a BMW belonging to his sister, which was deemed suitable for trade only sale, with the best achievable price being €4,500. The Complainant agreed to pay this sum and purchased the car. All SIMI and change‑of‑ownership forms were completed in line with normal practice.

Mr. O’Sullivan gave evidence that a customer had reported being told to leave their car “around the corner,” describing this as an unusual way of doing business, which raised concerns about deviations from standard procedures. He also addressed the issue of special or Saturday leave, explaining that the business is a small team and Saturdays off must be agreed in advance. He said the Complainant had incorrectly booked leave under the wrong name and could not assume approval until confirmed, a matter that led to discussions and upset on the Complainant’s part.

Mr. O’Sullivan evidence was he could not participate in the disciplinary process due to his involvement in the events.

Mr Kevin O’Leary’s Evidence

Mr. Kevin O’Leary, Director and General Manager, outlined his oversight role in the business.

It was his evidence that he was involved in the BMW transaction, noting that the deal was approved in November 2023 as a deposit‑related transaction. He stated that the Complainant spoke to him about the valuation and was reminded that the car could only be purchased at the €4,500 trade value if it went through the correct internal processes.

Mr. O’Leary’s evidence was he had received a complaint following a customer comment about being asked to park the car around the corner, which he viewed as suggesting a departure from normal customer handling procedures.

Regarding the leave dispute, he supported Mr. O’Sullivan’s account, explaining that Saturdays off must be planned due to staffing levels. He submitted the Complainant had entered leave incorrectly and assumed approval prematurely. It was his evidence that he discussed this with the Complainant and reiterating the requirement for managerial approval. Mr. O’Leary confirmed that the combination of the leave issue, the customer comment, and concerns about procedural compliance formed part of management’s consideration of the matter.

Mr. Kevin O’Leary’s evidence that he began looking into the customer comment on Wednesday, 13 November, after concerns arose regarding a vehicle transaction associated with the Complainant. He reviewed the sales records, handwritten notes, and a separate Excel spreadsheet maintained by Mr O’Sullivan and noted that a “trade‑in” entry appeared to have been deleted or edited by the Complainant, with no supporting evidence to justify the alteration.

He examined customer accounts, deposit records, and multiple payments, which suggested the transaction may have been arranged for a family member of the Complainant, raising concerns about whether the Complainant had attempted to place a vehicle “outside the system.”

On confronting the Complainant during the investigation stage, the Complainant apologised for what he had done. Mr O’Leary continued checking other transactions for patterns of concern and began to consider the potential risks to the company, including the possibility that such actions might be repeated and could undermine business integrity or profitability.

As part of the formal process, Mr O’Leary issued the Complainant with disciplinary correspondence, offering him representation, and re‑sending relevant policy documents before the meeting took place. The documentation was issued the evening before the disciplinary hearing. Mr O’Leary investigated the ownership of another vehicle, a Renault Kadjar, and discovered that the Complainant had incorrectly recorded the ownership details relating to his mother. When presented with this, The Complainant admitted wrongdoing and again apologised.

Mr O’Leary also referenced a series of emails and communications collected as part of the investigation, and he described being concerned when he discovered further irregularities which, in his view, indicated an intention by the Complainant to place the car outside the company’s normal processes. He stated that nothing in the Complainant’s previous record suggested issues before this incident, but his review of the system increased his concern about the seriousness of the conduct.

At the disciplinary meeting, the Complainant attended with his brother as a support person. It was Mr O’Leary’s evidence that no dispute arose as to the central facts. The Complainant accepted that money was owed and that mistakes had been made. A break was offered and agreed during the meeting, after which Mr O’Leary considered the matter further that afternoon.

He referred to the fact that a prior complaint had been sent by the Complainant earlier that day about unrelated issues, including the Saturday leave dispute, but Mr O’Leary regarded that leave matter as easily resolved and entirely separate from what he described as the issue of “theft.”

Following his assessment, Mr O’Leary decided that the Complainant would be paid his notice but would not be required to work it. A termination letter issued a couple of days after the meeting rather than the same day, confirming the outcome.

Mr O’Leary submitted in evidence that the incident had financial implications for the business, estimating a loss of between €2,000 and €5,000. He emphasised that the Complainant had taken it upon himself to cancel a trade‑in that should have remained within normal company procedures. He maintained that the disciplinary process had been carried out properly and that the decision to terminate was based on the seriousness of the misconduct he had identified.

During cross‑examination, the Complainant questioned Mr O’Leary on the relevance of the BMW purchase. It was Mr O’Leary’s evidence that it demonstrated the Complainant’s understanding of the correct process to follow when seeking to purchase a car.

The witness was questioned on why the Complainant was not paid his one more notice.

In response Mr O’Leary said it was fraudulent to contact the customer your personal mobile, where the Complainant used his position in the business to obtain the customer’s information. It cost the company profit for his own personal gain.

Upon inquiry, Mr O’Leary was asked whether the Complainant had been provided with any documents, including attachments, the handbook, staff statements, receipts, system records, or spreadsheets, and Mr O’Leary confirmed that none were given. He stated that the minutes of the meeting had not been submitted to the Workplace Relations Commission. He accepted there was no investigation report.

Upon further inquiry, Mr O’Leary was asked to clarify the specific allegation, why he believed the evidence was “clear,” to which he replied it was clear from review of their records what had happened.  

He was asked what was the reason for the dismissal? It was his evidence it was due to gross misconduct involving alleged fraudulent handling of a trade in.

Upon inquiry, Mr O’Leary was asked to respond to concerns that his disciplinary decision-making process was not fair or impartial to which he stated the Complainant admitted the allegation and was solely concerned with payment on the day. It was his evidence that the allegation was of a serious nature and there had been a breakdown in trust.

The witness was re-examined by Ms Clifford and submitted that the matter was “black and white” and did not require a disciplinary investigation. Mr O’Leary was of the view that the sanction of dismissal was appropriate where the Complainant had been dishonest and went to “major efforts to hide it”.

Mr Conin’s Evidence

Mr. Cronin, Finance Director, had oversight of nine businesses in the group, and that each car normally generates a general profit of €3,500. Upon reviewing the incident involving the Complainant, he examined the cash management systems and transaction history. He identified irregularities, including a €14,000 customer deposit, followed shortly by two deposits totalling €11,000, which he described as highly unusual and raising suspicion.

The witness outlined that the deposit appeared to come by bank draft, and while initially unclear, the Complainant later admitted to purchasing the bank draft himself, which heightened concern. He also noted that the receipt had been signed by the Complainant, with inconsistencies in customer/owner details. These irregularities prompted a formal investigation on a Thursday in November, during which the Complainant confirmed that the Renault Kadjar involved had ultimately gone to his mother.

Mr. Cronin described that the Complainant accepted what had happened, apologised, and expressed a wish to “work it out” and continue in his role. However, Mr. Cronin concluded that the conduct amounted to gross misconduct, citing the seriousness of attempting to move a vehicle “outside the system.” He said that although the Complainant was a young employee with a future career to consider, the company could not maintain trust.

He confirmed that the Complainant and his brother were given time to consider their position before a decision to terminate was made. Alex received approximately €2,500, including deductions for holidays, commission clawback over 13 weeks, and statutory amounts.

Mr. Cronin further referenced SIMI forms, unusual deposit patterns (€500–€600 typical vs. €11,000 received), discrepancies in paperwork accuracy, and concerns that if documents and accounting systems were not aligned, the transaction could not be trusted.

He noted that the company is small and cannot always bring in external investigators, but they do have access to Ms Clifford a HR Consultant, if necessary. He referred to resource limits and that the company structure made full external disciplinary processes challenging.

Mr. Cronin also mentioned broader issues raised by the Complainant (holidays, operational matters) but maintained that the core issue was the financial irregularity and misrepresentation of the vehicle transaction.

During cross‑examination, Mr. Cronin was questioned on whether the bank draft could have originated from the actual customer rather than from the Complainant. He conceded that such a possibility existed but stated there were multiple inconsistencies that, taken together, made the transaction suspicious.

He was asked whether similar unusual deposit patterns had happened before and why this particular case was treated as misconduct. He responded that the transaction involved two unusual deposits, incomplete or inaccurate paperwork, and links to the Complainant’s family, which together justified suspicion.

He was questioned on whether the company’s lack of external HR or formal structures contributed to an unfair or flawed process. Mr. Cronin acknowledged the company’s small size, its limited resources, and that they do not always have capacity to bring in outside personnel for investigations. He stated that this does not undermine the validity of the disciplinary decision.

The Complainant also put to Mr. Cronin that the Complainant had a strong performance record and no previous issues and asked whether this was properly considered. Mr. Cronin accepted the Complainant had performed well but maintained that the incident involved a breach of trust so fundamental that past performance could not outweigh it.

Cross‑examination also suggested that holiday‑related disputes or workplace tensions played a role in the decision. Mr. Cronin denied this, stating these issues were separate and that the dismissal was based solely on the transaction irregularity.

It was the Respondent’s submission due to the conduct of the Complainant the Respondent was entitled to dismiss the Complainant.

The Respondent relied upon the following caselaw but the Bank of Ireland v James Reilly 2015 IEHC 228, Allied Irish Banks plc v Purcell 2012 23 ELR 189, Kenneth Walker v Maplin Electronics Limited UD 1424/2009 and Noritake (Ireland) Ltd v Kenna UD 88/1983.

Section 6 of the Unfair Dismissals Act 1977 sets out the legislative basis for a complaint of unfair dismissal:-

“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.”

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

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

“6.—(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.

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

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

The dismissal was not in dispute between the parties. The reason for the dismissal was “fraudulently dealt with a trade in vehicle.”

The Respondent provided the Complainant with a detailed employee handbook containing a disciplinary procedure, along with his contract of employment dated 11 August 2023, which states that: “You are also entitled to the benefit of and subject to the Disciplinary Procedure of the Company.” The disciplinary procedure further states that all disciplinary matters “will be conducted with due regard to natural justice and fairness.”

Findings of Fact

·       The Complainant was issued with an invitation to a disciplinary meeting at 17:38, for a meeting scheduled at 09:30 the following morning.

·       The Complainant was not furnished with any evidence against him in advance of the disciplinary meeting.

·       No minutes of the disciplinary meeting or the outcome meeting were submitted.

·       There was no investigation report or reasoned written outcome demonstrating consideration of all available evidence.

·       There was an absence of impartiality, as Mr O’Leary carried out both the investigative and decision‑making roles.

·       The Complainant was accompanied at the relevant meetings.

·       The Complainant was offered a right of appeal.

While the Respondent is a small employer and witnesses described resource constraints, evidence was given that it operates multiple premises within a group structure and had access to external HR advice.

The Code of Practice on Grievance and Disciplinary Procedures (S.I. 146 of 2000) acknowledges the varying sizes of enterprises; however, it makes clear that all employers must comply with fair procedures: “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…”

The Respondent relied upon Noritake (Ireland) Ltd v Kenna UD 88/1983 wherein EAT considered the following questions in coming to the conclusion that the dismissal was unfair: -“(i). did the company believe that the respondent misconducted himself

as alleged? If so

(ii)did the company have reasonable grounds to sustain that belief? If so

(iii)was the penalty of dismissal proportionate to the alleged misconduct?”

While the Respondent may have had reasonable grounds to form the belief that the Complainant had misconducted himself, this does not excuse its failure to adhere to its own disciplinary procedures, nor the absence of fair procedures throughout the disciplinary process, including in the decision to terminate the Complainant’s employment.

For these reasons, I find the dismissal was unfair.

Where the Complainant has been deemed to be unfairly dismissed from his employment, he is entitled to redress under Section 7 of the Act. In considering what would be an appropriate form of redress in this instance compensation as provided for under Section 7 (1) (c) (i) is the only option.

In considering the appropriate amount of financial loss, Section 7 (2) provides for the following considerations:

(2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—

(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

(b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee,

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid,

(d) 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 subsection (1) of section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister,

(e) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14, and

(f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal”.

“financial loss”, in relation to the dismissal of an employee, includes any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts, 1967 to 1973, or in relation to superannuation; “remuneration” includes allowances in the nature of pay and benefits in lieu of or in addition to pay.”

It has been found that the employer’s failure to comply with the fair procedures both under its own disciplinary procedures and the Code of Practice.  

Mitigation of Loss

The Complainant stated that he spent approximately 40 hours per week seeking alternative employment, submitting hundreds of applications and attending around 10 interviews. No documentary evidence was provided to corroborate these efforts. He said that he obtained commission‑only employment in February 2025 but was unable to provide any details of earnings from that role. He subsequently secured new employment on 13 June 2025 at a lower salary (€32,000) with reduced commission potential. He also gave evidence that he invested in a drop‑shipping business as a personal “side hustle.”

While the Complainant’s efforts to mitigate his loss were not disputed by the Respondent, I find that the Complainant failed to adequately mitigate his loss until June 2025, thereby falling short of the standard in Sheehan v Continental Administration Co Ltd UD858/1999, which held that an employee must “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.”

Conduct

Section 7(2)(f) of the Unfair Dismissals Acts allows consideration of whether the employee’s conduct contributed to the dismissal.

The Complainant was employed as a Sales Executive with the Respondent on a full‑time basis. He gave evidence that he had previously worked in another car dealership. Therefore, it is clear that he was experienced in his role and would reasonably have understood the nature of the employer’s business, namely the trading and selling of cars.

It is noted that during the disciplinary process the Complainant apologised for his actions and sought to reach a mutual agreement with the Respondent.

As confirmed by the Supreme Court in Carney v Balkan Tours Ltd (20 January 1997, 34/96), it is legitimate to take into account an employee’s contribution to their dismissal when assessing compensation.

I find the Complainant was unfairly dismissed from his employment.

Having regard for the reasoning set out above, I am awarding compensation in the sum of €10,000 (gross) as being just and equitable having regard to all the circumstances. The award does account for the Complainant’s failure to adequately mitigate his losses and his contribution to the dismissal.