Complainant

Respondent

Parties

Shane  Molloy

Coca Cola HBC Ireland Ltd

Representatives

Self-Represented

Ms Mary Fay BL instructed by Sonam Gaitonde of Arthur Cox

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-00068031-001

11/12/2024

The issue in contention was the was the alleged Unfair Dismissal of the Complainant, a Sales Representative, by the Respondent, a consumer Beverage Company.

The employment began on the 31st  March 2022 and ended on the 10th December 2024.

The rate of pay was stated by the Complainant to have been € 39,000 per annum for a 40-hour week.

The Complainant was self-represented and gave a lengthy Oral Testimony supported by a written submission.

The Complainant accepted that he had instigated and shared with colleagues’ inappropriate language and images via Snap Chat. He had apologised fully for these actions which he accepted were inappropriate and offensive. However, he believed that the Respondent Employer had failed to properly consider the context of the material, his previous exemplary record and had failed to consider any sanctions other than Dismissal. The message were largely “Banter” between colleagues and never had any intention to hurt or cause offense. The Penalty imposed was completely disproportionate to the offence.

In addition he considered that the Disciplinary Process had breached Confidentiality ,had suffered from managerial Bias ( Managers involved at first stage in the process were involved at a later stage,) an inconsistent standard was applied ( other staff sending messages were not sanctioned)  , his immediate Superior had orchestrated actions against him by persuading more junior staff to disclose messages and in general the entire process had lacked want he called “Substantive Fairness and Proportionality”.

Case law cited was principally, Frizelle v New Ross Credit Union [11997] IEHC137, Henessey v Read and Write Shop UD 192/1978 and Glynn v Carlow Dental Centre ADJ-43734. In the latter case the Complainant stated that an Unfair Dismissal involving inappropriate message was overturned as disproportionate.

The Respondent was represented by Ms M Fay BL supported by a number of Respondent Managers. An extensive written submission was presented.

In essence, Ms Fay argued that a “text book” and studiously Fair Investigation and Disciplinary process had taken place. Evry step was documented, evidence shared, and all opportunities were given to the Complainant to advance counter evidence. A full set of correspondence, of meeting minutes and background documents/policy Papers was presented to the Hearing. The Original Disciplinary Manager, Mr O’N, gave concise Oral Testimony. Mr O’D, the Senior Manager who conducted a most comprehensive Appeal Process gave extensive Oral testimony covering all stages of a lengthy Appeal Process. His Appeal Findings , in lengthy letter of the 12th March 2025, were presented and discussed.

In summary, Ms Fay argued that the Investigation & Disciplinary Process had been exemplary and without fault. The Appeal Hearings/Investigation by Mr O’D were in a similar vein.

The Dismissal decision was appropriate and fair for a “Reasonable Employer.” Reinstatement or Reengagement were clearly not viable options.

It was pointed out that all legal precedents from the Higher Courts clearly established beyond doubt that Third Party Bodies such as the WRC do not substitute themselves as decision makers but rather establish that natural justice has been observed by Respondent Employers. It is the function of the Respondent Employer to make a “Reasonable Decision” in keeping with accepted norms and employment practices.

Case law supporting the Reasonableness Approach was cited - Henessey v Read and Write Shop UD 192/1978 and Bank of Ireland v James Reilly [2013} IEHC 241 being the principal cases.

3:1      The Legal position

In an Unfair Dismissal situation, the guiding principle has to be that of Natural Justice.

In Frizelle v New Ross Credit Union Ltd, [ 1997] IEHC 137] Flood J. stated that where a question of unfair dismissal is in issue, there are certain matters which must be established to support the decision to terminate employment for misconduct:

“1.

The complaint must be a bona fide complaint unrelated to any other agenda of the Complainant.

2.

Where the Complainant is a person or body of intermediate authority, it should state the complaint, factually, clearly and fairly without any innuendo or hidden inference or conclusion.

3.

The employee should be interviewed, and his version noted and furnished to the deciding authority contemporaneously with the complaint and again without comment.

4.

The decision of the deciding authority should be based on the balance of probabilities flowing from factual evidence and in the light of the explanation offered.

5.

The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee.

Put very simply, principles of natural justice must be unequivocally applied.”

More recently SI 146 of 2000 – Code of Practice on Grievance and Disciplinary Procedures has codified these Natural Justice principles into a set of guidelines.

3:2 The Role of the Adjudicator

There is extensive legal Authority regarding the principle that the Tribunal or the Adjudicator is not to substitute themselves for an Employer and effectively engage in a de facto rerunning of a Disciplinary case.

The cases of Foley v Post Office [2000] ICR 1283 was referenced in the Irish High Court by McGovern J in the case of Doyle v Asilo Commercial Limited [2008] IEHC 445

“It is not the function of the Courts to substitute itself for the employer and to make its own decision on the merits of the employer’s decision to dismiss. As Mumery LJ stated in Foley v The Post Office at page 1295:

        “The employer, not the tribunal is the proper person to conduct the investigation into alleged misconduct. The function of the tribunal is to decide whether the investigation is reasonable in the circumstances and whether the decision to dismiss, in the light of the results of that investigation, is a reasonable response.”

Irish Courts -Allied Irish banks PLC v Purcell [2012]23 ELR 189 and Bank of Ireland v James Reilly [2013} IEHC 241 have reiterated this point.

The Reasonableness point is developed further in the Court of Appeal decision in the Iceland Frozen Foods v Jones [1983] ICR 17 where the “Band of Reasonableness” principle was elaborated uponat length.

The former Employment Appeals Tribunal usefully summarised its approach to dismissals for “conduct” and the question of “Reasonableness” as set out in Hennessy v Read and Write Shop Ltd. UD192/1978.

The Tribunal applies the test of “reasonableness” to

1.    the nature and extent of the investigation carried out by the Respondent prior to the decision to dismiss the claimant, and,

2.    whether the procedures adopted were fair and reasonable and

3.    the reasonableness of the conclusion arrived at by the Respondent.

However, all cases rest on their own evidence and factual matrix and I will now examine these.

3:3        Review of Evidence presented both Oral And Written.

There was considerable evidence presented of Snapchat and other electronic messages. The Complainant accepted that he had sent these and apologised most sincerely for any hurt caused. It had been merely “Banter”.  A very detailed Investigation and Disciplinary process had followed which had resulted in his Dismissal. On careful review the rules of Natural Justice had been observed.

An Appeal had been lodged which was heard by Mr O’D, a Senior Manager with some 30+ years’ service.

Mr O’D gave extensive Oral Testimony, was cross examined by the Complainant and was questioned closely by the Adjudicator. Mr O’D had conducted a most comprehensive Appeal Process and had devoted time and energy to interviewing as many witnesses as possible . All interview reports were made available to the Complainant.

Mr O’D presented to the Adjudication Officer as a most credible and very experienced Senior Manager who comprehensively knew the organisation, it’s culture and practices. On questioning, under Oath,  he indicated that he had carefully considered the “reasonableness” question . It was his conclusion that Reinstatement or Reengagement of the Complainant were simply not viable options for the Organisation. It was not a decision, based on 30+ Years service & experience of the Respondent Company and the facts of the case, that he had taken lightly.

3:4        Adjudication Summary

Accordingly, Legal precedents above and the Oral Testimony of the Parties, especially Mr O’D, a most Senior Executive, the finding has to be that the Dismissal was “within the Band of Reasonableness” for the Employer. Accordingly, No Unfair Dismissal took place.

The claim has to fail.

Unfair Dismissal, Reasonableness, Proportionality.