Complainant

Respondent

Parties

Andrian  Restilov

Keelings Select UC

Representatives

Vivian Cullen SIPTU-Trade Union

Sarah Dowling 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-00066421-001

02/10/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00066421-002

02/10/2024

The Complainant was employed by the Respondent from 31 May 2017 until 23 August 2024, when his employment was terminated by way of summary dismissal on the grounds of gross misconduct. He earned a gross weekly salary net of subsistence of EUR 794.25.

He was dismissed on 23 August 2024 on the grounds of the gross misconduct without any notice pay having been accused of health and safety breaches in the workplace.

He asserts that the dismissal was unfair.

On 9 July 2024, the Complainant received a live final written warning for gross misconduct. This was later linked to new allegations of gross misconduct, which the Complainant contends unfairly amplified the severity of the matter.

On 5 August 2024, the Warehouse Manager submitted a written complaint alleging that, while reversing a truck into a loading bay, the Complainant drove his personal car at speed across the yard and stopped abruptly behind the reversing truck, sounding the horn and questioning why the truck was parking there rather than waiting for him. The Warehouse Manager stated that he advised the Complainant there was space in another bay. After loading, the Complainant allegedly came to the office, again speaking in a raised voice, and asked for delivery papers and customer details.

On 7 August 2024, the HR Department issued an investigation invitation letter setting out six allegations: unsafe driving in the transport yard; placing himself at risk by stopping behind a reversing vehicle; endangering colleagues; risking damage to his own vehicle and company property; parking in an unauthorised area after the incident; and failing to comply with duties under the Safety, Health & Welfare at Work Act 2005, section 13(a) and (e). The letter noted the right to be accompanied by a work colleague, the possible use of CCTV, and that the allegations were treated as gross misconduct.

The Complainant contends that these allegations extrapolated and amplified the Warehouse Manager’s original account, priming the investigation outcome and creating prejudicial “anchor bias.” It is submitted that the principles of natural justice, as set out in Statutory Instrument No. 146/2000 and case law, were not applied. The Complainant argues that the process lacked impartiality, that findings were reached without proper factual testing, and that proportionality was not considered.

The investigation was conducted by the Supply Chain Manager, who did not interview the Complainant in relation to the Warehouse Manager’s credibility, nor seek additional statements. CCTV footage was used to support the claim that the Complainant drove at speed and stopped behind the reversing truck. The Complainant stated that his use of the horn was for safety, that he exited his vehicle when safe, and that his work boots reduced pedal sensitivity. He admitted parking in an unauthorised area but denied aggressive shouting, explaining that he raised his voice due to engine noise.

The Supply Chain Manager’s investigation report concluded that the Complainant’s actions constituted gross misconduct, recommending progression to a disciplinary hearing. The Complainant submits that this exceeded the investigator’s role of fact-finding, introducing prejudicial opinion.

A disciplinary hearing took place on 15 August 2024, chaired by the Head Office Shared Services Manager, with the Complainant declining accompaniment. The Complainant acknowledged breaching Health & Safety policy but argued his actions were intended to secure loading priority. He accepted the risk involved, apologised, and assured there would be no recurrence.

On 23 August 2024, the Head Office Shared Services Manager issued a decision of dismissal, citing gross misconduct, the live final written warning, and an irreparable breach of trust. The Complainant was informed of his right to appeal.

The Complainant maintains that at all stages he was informed only of a right to bring a colleague, with no mention of trade union representation, contrary to both the Respondent’s disciplinary policy and Statutory Instrument No. 146/2000, which recognises a trade union official as a representative.

An appeal hearing was held on 5 September 2024 before the General Manager, with the Head of People as note taker. The Complainant attended with a SIPTU representative and a translator. Grounds of appeal were the denial of trade union representation at earlier stages and the disproportionality of the sanction. The representative argued that the investigation was biased, that the investigator acted beyond their remit, and that CCTV use was improperly handled. The Respondent maintained that the Complainant declined representation on several occasions and that the investigator’s role was limited to recommending a disciplinary hearing.

The appeal outcome, issued on 1 October 2024, upheld the dismissal. The Complainant contends that the process was flawed from the outset: the same individuals were involved in formulating allegations, conducting the investigation, and influencing the disciplinary outcome; the investigator’s findings contained prejudicial conclusions; and natural justice requirements of impartiality, fair hearing, and proportionality were not met.

It is submitted that these procedural failures amount to a breach of the principles of “nemo judex in sua causa” and “audi alteram partem,” resulting in a flawed outcome and an unfair dismissal. The Complainant argues that the sanction of dismissal was disproportionate to the allegations and that the investigation and disciplinary processes lacked the fairness and impartiality required by law and the Respondent’s own policies.

On 9 July 2024, the Complainant received a live final written warning after failing to comply with Garda instructions while parked illegally at a toll plaza. He refused to move the Respondent’s vehicle despite repeated requests from Toll Plaza personnel and only complied when Gardaí threatened to tow it.

On 5 August 2024, the Warehouse Manager lodged a complaint with the Operations Director regarding an incident in which the Complainant allegedly drove his personal vehicle at speed across the yard, stopping abruptly behind a reversing truck. The Warehouse Manager claimed the Complainant beeped his horn, shouted aggressively, and questioned why he was reversing instead of waiting for product collection. The Complainant allegedly confronted him again in the office in an aggressive manner.

On 7 August 2024, the HR Manager informed the Complainant of the allegations and suspended him on full pay pending investigation. An investigatory meeting was scheduled for 9 August 2024, with allegations including unsafe driving, endangering himself and others, risk of damage to property, parking in an unauthorised area, and breaching duties under the Safety, Health & Welfare at Work Act 2005, section 13(a) and (e). The Complainant was reminded of his right to be accompanied, and advised that CCTV evidence might be used.

The Supply Chain Manager conducted the investigation on 9 August 2024. The Complainant declined representation. CCTV footage was shown of him driving at speed and stopping behind the truck. The Complainant admitted it was him and explained he used his horn for safety, exited when he deemed safe, and requested priority to park and collect product. He claimed his work boots affected his control of the pedals and admitted knowingly parking in an unauthorised area. He accepted that his actions breached Health & Safety rules and created risk, though he denied shouting, saying he had raised his voice due to engine noise.

The investigation report, issued on 13 August 2024, found breaches of Health & Safety guidelines and the 2005 Act, and referred the matter to a disciplinary hearing on grounds of gross misconduct.

The disciplinary meeting took place on 15 August 2024, conducted by the Head Office Shared Services Manager. The Complainant again declined representation. He stated he had braked before reaching the truck, though this was not visible on CCTV, and admitted breaching policy to prioritise his loading. He acknowledged the risk to himself and his colleague, apologised, and promised no future issues.

On 23 August 2024, the Head Office Shared Services Manager issued the disciplinary outcome, concluding that given the gross misconduct findings, the live final written warning, and the breach of trust, dismissal with immediate effect was the appropriate sanction. The Complainant was afforded the right to appeal within five working days.

The appeal meeting was held on 5 September 2024 before the General Manager, with the Head of People as note taker. The Complainant was represented by a SIPTU representative and accompanied by a Russian translator. Grounds of appeal were the right to representation and disproportionate sanction. The representative argued the investigation was biased, claiming it focused on gross misconduct rather than factual findings, and alleged an orchestrated attempt to breach rights.

Management responded that the Complainant had repeatedly declined representation, and the issue was first raised at appeal stage. The representative asserted the Complainant was unaware of his right to trade union representation and challenged the investigator’s conclusion. The General Manager clarified that the Supply Chain Manager’s role was limited to recommending progression to disciplinary hearing, not determining sanction. The representative also questioned the use of CCTV, requesting a copy. The Head of People reiterated that the contractual relationship was between the Respondent and the Complainant, and footage could be requested directly by him.

Following provision of amended minutes, the General Manager issued the appeal outcome on 1 October 2024, upholding the dismissal.

CA-00066421-001:

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

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

(a)   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 Act states as follows:

“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 of mainly from one or more grounds specified in subsection (4) of this section or that there were other substantial grounds for justifying the dismissal”.

Section 6(7) of the Act states as follows:

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, 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.

Findings:

The Complainant submits that the investigation process was biased and flawed because

(i)                  He was not afforded trade union representation during either his investigation meetings or the disciplinary hearing

In considering whether the Respondent afforded the Complainant fair procedures as set out in in S.I. No. 146/2000 – Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (the “Code of Practice”), I must firstly examine the Complainant’s assertion that he was not informed of his right to avail of trade union representation at the investigation meeting or the disciplinary hearing. I note that this issue was comprehensively considered in ADJ 45564, which is almost on all fours with the present case in respect of this particular aspect. In that decision, the Adjudication Officer found that while the Complainant had not been asked if he wished to avail of representation, he had not requested it either. The circumstances of the present case are virtually identical, the only difference being that the Complainant in the instant case had union representation at the appeal stage.

As highlighted in ADJ 45564, the “Code of Practice” defines an “employee representative” as including a colleague of the employee’s choice or a registered trade union. Paragraph 6 provides that employees should be given the opportunity to “avail of the right to be represented during the procedure.” Significantly and crucially, as also highlighted in ADJ 45564, the Code uses the term “avail of,” rather than “be provided with,” indicating that the employee is entitled to make use of representation if desired, but is not automatically entitled to have it supplied.

In the present case, the Complainant confirmed in evidence that he would have availed of trade union representation had it been offered. However, there was no evidence presented to suggest that he made a request for any form of representation at either the investigation or disciplinary meetings. Accordingly, consistent with the principles set out in the Code of Practice and the findings in ADJ 45564, which are both set out above, there was no breach of the obligation to provide fair procedures. While the Complainant was not proactively asked about union representation, there was no evidence presented to suggest that he sought to avail of it at either the investigation or the disciplinary hearing.

(ii)                The Investigation Was Prejudicial Because A Finding Of Gross Misconduct Was Made

The Supply Chain Manager conducted an investigation into the Complainant’s alleged actions. The Complainant stated that that the Investigator went beyond the proper scope of an investigatory role by concluding in his report that the Complainant’s conduct constituted gross misconduct, which he stated was highly prejudicial.

In Irish employment law, it is well-established that procedural fairness in disciplinary processes requires a clear distinction between the investigator’s function and the decision-maker’s role. The WRC and the Courts have repeatedly emphasised that where an investigator exceeds their role, this can fatally taint the process and render any resulting disciplinary action, including dismissal, unfair. In McLoughlin v. Setanta Insurance Services [2012] 23 ELR 57, Laffoy J granted an interlocutory injunction restraining a disciplinary process because it was found that the human resources manager went beyond investigating the matter at issue, having already made findings of fact before any disciplinary hearing had taken place. This is also consistent with the findings of the Adjudication Officer in A School Secretary v A Primary School – ADJ 28138 where it was found that the investigation carried out “by the school principal was flawed”. Specifically, the AO highlighted that “Her report makes findings based on the facts that are highly prejudicial to the Complainant” and ”strayed into the territory of making an adverse finding. However, the guilt of the Complainant could only be determined after a fair hearing.”

The disciplinary hearing, chaired by the Head Office Shared Services Manager, relied in part on the investigator’s report, which should have been limited to gathering facts; expressing an opinion on culpability and classifying the conduct as gross misconduct was prejudicial and determinative. Because the investigation was prejudicial and determinative, the disciplinary outcome was fatally compromised. On this basis alone, I find that the dismissal of the Complainant was unfair.

CA-00066421-002:

Section 4 of the Minimum Notice and Terms of Employment Act, 1973, states:

4.—(1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.

(2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be—

(a) if the employee has been in the continuous service of his employer for less than two years, one week,

(b) if the employee has been in the continuous service of his employer for two years or more, but less than five years, two weeks,

(c) if the employee has been in the continuous service of his employer for five years or more, but less than ten years, four weeks,

(d) if the employee has been in the continuous service of his employer for ten years or more, but less than fifteen years, six weeks,

(e) if the employee has been in the continuous service of his employer for fifteen years or more, eight weeks.

Findings:

It was not disputed by the Respondent that the Complainant did not receive his minimum notice entitlements when he was dismissed. Consequently, I find this complaint to be well-founded because the dismissal was unfair. Specifically, considering his length of service, which exceeded five years, he is entitled to four weeks’ notice.

CA-00066421-001:

Section 7 of the Unfair Dismissals Act, in relevant part, states that:

(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, 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,

(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 financial loss referred to in that subsection was attributable to an act, 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,

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

3) In this section—

“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.

Findings:

I find that the Complainant was unfairly dismissed for the reasons set out above.

Having decided that the Complainant was unfairly dismissed, I must examine the appropriate form of redress in accordance with section 7 (1) of the Act set out above. In this regard, I note the Complainant’s preference for compensation as a remedy and find that this is appropriate in this instance given that he has found employment elsewhere.

The Complainant’s financial loss attributable to the dismissal in respect of the wages that he did not earn in the period from 23 August 2024 to 25 November 2024 is €10,325.25.

In calculating the level of compensation to award, I have regard to the decision of the Adjudication Officer in ADJ 32667, where she stated, inter alia, that: 

“in considering compensation, regard must be had to all of the subsection of Section 7-and the tests are not confined to the efforts of the former employee-or the Complainant in this case. In circumstances where the Respondent is found not to have met the tests set out in subsections (c) and (d) …. and the Complainant made no contribution to the decision to dismiss her under (a) (b) or (f) It would be wholly unjustified to penalise the Complainant solely for a conclusion that she did not make a sufficient effort of mitigate her losses where the balance of unfairness and failure to comply with the terms of Section 7 as a whole lie squarely with the Respondent.” 

When applying the provisions of section 7(2)(a) to this case, I am of the view, as outlined above, that the investigator acted unreasonably in finding that the Complainant was guilty of gross misconduct. Having regard to section 7(2) (b) and (f), I find that, notwithstanding its unfairness, the Complainant contributed substantially to his dismissal via his misconduct. Furthermore, in relation to section 7(2)(d) and (e) of the Act, I find that the Complainant was not afforded “a fair examination, and impartial determination of the issues” in respect of the disciplinary process, as set out in SI 146 of 2000 Code of Practice on Grievance and Disciplinary Procedures, because of the prejudicial findings of the investigator in advance of the disciplinary hearing. Considering section 7(2)(c), it is worth noting that the Complainant found alternative employment on 25 November 2024 but provided little evidence of a seeking employment between this date and the date of his dismissal from the Respondent on 23 August 2024.

Considering all the foregoing points, and recognising the significant contribution he made to the termination of his employment, I make an award of €3,500 in respect of the unfair dismissal.

CA-00066421-002:

This complaint is well founded for the reasons set out above. I make an award in the amount of €3,177, namely four weeks’ pay.